India is a huge country not only in terms of its geography but also its population, which has various religions, customs and practices. However, India has two main personal laws i.e. Hindu law and Muslim Law. Before moving ahead, I would like to define the Law – ‘Law is a large body of rules and regulations based mainly on general principles of justice.’

      Hindu Law is a personal Law (Law of Marriage, Divorce, Adoption, inheritance etc) evolved through long period of time from many sources (mentioned below) by Hindu religious community of India. Therefore, I love to call it ‘Sedimentary Law’ because Laws from various sources Sedimented and consolidated into Hindu Law. The important sources of Hindu Law are:

     1)  Ancient Source

     2)  Modern Source

          Ancient source is the main source of Hindu Law, which further subdivided into viz –

a) Sruti: the literal meaning is – ‘what was heard’, and it is originated from Vedas i.e. Rig, Yajur, Sama, and Atharva Vedas. Basically, it is praise in the forms of hymns of the earliest Hindu tradition which deals – types of marriage, adoption, partition etc.

b) Smriti: literally means – ‘what is remembered.’ It is also known as ‘Dharma Sutras’ and available in the prose from. The important Smritis are ‘Manu Smriti, Yagnavalkya Smriti, Narada Smriti etc and, it deals the civil and criminal law, procedural law, marriage Law etc.

c) Commentaries: the discrepancy between above two gives rise a third one i.e. ‘Commentaries, which later on beget two schools i.e. Mitakshara (Vijyaneshwara school) and Dayabhaga (Jimuthvahana school) associated with particular areas.

d) Customs: it is a set of rules and norms, practice by particular society for a long period of time. However, ‘customs arise whenever a few human beings come together as no association of human beings can exit permanently without adopting consciously or unconsciously, some definite rules governing reciprocal rights and obligations’ (Vinogradoff, Collected Papers). “Indeed custom is coeval with the very birth of the community itself.” (Jurisprudences).

      Modern Source refers to the rules and regulations established through legislation by educated and intellectual people. These laws almost codified laws such as –

a) Hindu Marriage Act (1955),

b) Hindu Succession Act (1956),

c) Hindu Minority and Guardianship Act (1956) and

d) Hindu Adoptions and Maintenance Act (1956)

After independence (15 August 1947), India constituted its own Constitution, where India defines itself as a secular country, like this given space to flourish all religions with its own customs and laws. Therefore, the Indian Legal System is a Common Law-cum-Civil Law. Apparently, Hindu Law is a personal law and applicable to person and family relations only.

The Theft Acts provide also for other offences. Obtaining property by deception is in s. 15 of the ‘68 Act , as theft but ‘by any deception’ -by false words or tricky behaviour: R -v- Bernard 1837 (pretending as business inducing investment & supply of goods) R -v- Gomez 1993 (unentitledly in Salvation Army uniform collecting money).Obtaining services by deception is s. 1 of the ‘78 Act -it is as for property in the earlier Act.Evading liability in s. 2 of the ‘78 Act is the offence of similarly avoiding e.g. debts.Making off without payment (‘bilking’) is s. 3 of the ‘78 Act ~e.g. restaurant -without paying.Robbery is s. 8 enabling theft by force or such threats, at the time or before, as would put in fear another of there and then being subjected to it ~theft with assault or battery -max.: life.Burglary in s. 9 is mostly by trespass -by unauthorised entry to or to any part of any building (including caravans & house-boats lived in), s. 9(1)(a) ‘intending to steal or inflict grievous bodily harm or raping any person within it, or doing unlawful damage to it or anything within it as a trespasser,’ s. 9(1)(b) or upon entry as trespasser without such intention doing or attempting so ~it is can be tried by Magistrates -by a Crown Court if involves the intention to rape or cause grievous bodily harm Taking a conveyance without consent is s. 12, taking, driving or being in, any thing constructed for carrying people by land, water, or air (except pedal cycles) ~it is a summary offence, normally, with max. 6 month imprisonment -unless aggravated by dangerous driving, or damage to it, or accident causing injury or damage (in the Criminal Damage Act 1971 ‘reasonable careful person test’ applies). > Non-fatal Offences Against the Person

Non-fatal offences against the person are in part common law offences, and in part by statute; and, in order of seriousness, they are as follows:-

In Smith -v-Chief Superintendent of Woking Police Station 1983 entering a garden at night, by looking through a bedroom window terrifying a woman was an offence under s. 4 Vagrancy Act 1824 ~if intending to assault -words alone are not normally enough.Assault is causing apprehension of immediate unlawful physical violence intentionally or recklessly -its charged under s.39 Criminal Justice Act 1998. Threats not capable of being carried out do not constitute it.Battery is the intentional or reckless subjecting of another to unlawful force; and, as in the case of hitting one wit a missile, it need not be coupled by assault. This also is in common-law, charged under s.39 of the Criminal Justice Act 1998.

In both of these offences the mens-rea is intention: R -v- Spratt 1990, or by subjective recklessness: R -v- Savage 1991 was deliberate unreasonable risk taking, and R-v- Parmenter 1991: not if the risk is obvious but if malice was involved. While both the actus-reus and the mens-rea must exit at the same time, the mens-rea can be formed in the course of the actus-reus: Fagan -v- Metropolitan Police Commission 1969 -having accidentally driven car on policeman’s foot, refusing to move car when told had formed it

Satisfactory evidence of consent is a defence: R -v- Donovan 1934 (prostitute beaten by a stick for sexual gratification), if the offence is not a more serious one.Assault Occasioning Actual Bodily Harm is a s. 47 offence and it is when battery, alone or coupled with common law assault, the statutory ‘assault’ of the Act is so serious that it is likely to interfere with the victim’s health and comfort -without cutting the whole skin, physically such as grazing and concussion: R -v- Roberts 1971, or: R -v- Chan & Fook 1994 as nervous shock in psychiatric terms: R -v- Ireland & R -v- Burstow 1997 (a direct physical attack is not a requirement, also e.g. silent telephone calls may constitute the offence of causing actual bodily harm. Its actus-reus is itself as the consequence by the ‘but for’ test, the objective test; it requires this to be coupled with the mens-rea in the form of intention or subjective recklessness: Roberts (where intentionally or subjectively recklessly there was unlawful force, which objectively occasioned the bodily harm). In Donovan consent was not a defence because actual bodily harm was caused ~the nature and the degree of the injury itself being the decisive factor in whether common assault was the offence involved -to which only it is a defence, or actual bodily harm or greater..Unlawful Wounding is a s. 20 offence, and it is by any means unlawfully and maliciously wounding or inflicting grievous bodily harm. In the actus-reus the ‘wound’ is other than a broken collarbone: R -v- Wood 1830 or internal bleeding: JJC -v- Eisonhower 1983; it need not be serious. But ‘grievous bodily harm’ must be serious -although not necessarily permanent or life threatening, nor by a direct attack: R -v- Martin 1881. The mens-rea of it is ‘maliciously’ (intention or subjective recklessness) which applied as transferred malice in intended hitting in R -v- Latimer 1886; but in R -v- Parmenter where ‘neither could have intended nor realised injury’, and consent here too was no defence in R -v- Brown & Others 1993.Wounding with Intent is s. 18, the most serious of the Act’s offences. It is ‘unlawfully and maliciously by any means whatsoever to wound or cause grievous bodily harm… with intent to do some grievous bodily harm.. or to resist or prevent the lawful apprehension or detaining… of any person’; its actus-reus is as for unlawful wounding, but its mens-rea is the intention to commit the crime, and proof of that is required, but it can be reduced to and dealt with as ‘unlawful wounding’ based on subjective recklessness: R -v- Constanza 1996 : it can be stalking and if silent telephone calls cause mental anguish as in R -v- Gelder 1944.

Assault occasioning actual bodily harm and unlawful wounding carry a maximum sentence of five years imprisonment, but wounding with intent carries, as maximum, life imprisonment.> The General Elements That Must be Proved Before Establishing Criminal Liability

These have to be looked at first, in considering whether any offences may have been committed. Some of these are statute-based and some under common-law, their development having been much affected by such pressures as economic, social, and political. Usually specific are the features of each crime, but there are some common elements.

One is innocent until ad unless found in law not to be -except in strict-liability cases; this requires showing both that a guilty act was done, as well as that it was intentionally done.Actus-reus is the criminal act: e.g., s. 1 of the Theft Act 1968 ‘dishonest appropriation’; or the criminal omission: e.g., s. 6 Road Traffic Act 1988 ‘fails to provide a specimen’; or a criminal a state of affairs or event: e.g., in Winzar -v- Chief Constable of Kent 1983 the charge of ‘found drunk in the highway’; or the criminal consequence: e.g., s. 47 Offences Against the Person Act 1861 ‘occasioning actual bodily harm’-which is a ‘result crime’ necessitating showing a casual link in fact or in law.Causation in fact is determined by the ‘but for test’. In R -v- White 1910 the mother’s death having been from natural causes, poisoning her was not the cause, and it not killing.Causation of law depend on the contribution of the intervening act. R -v- Roberts 1972 injury of jumping out the car was caused by sexual advances made to the woman in the car; in R -v- Pitts 1842 drowning was caused while escaping from an attack; R -v- Lewis 1970 broken leg resulted from escaping threats and attempt of violence; the reasonable act of the victim in seeking to escape being subjected to a crime was the link. Contributory negligence of the victim in R -v- Holland 1841 (self neglect) did not break the link, in R -v- Deer 1996 was still the significant operative in the death -it was killing, a thyroid condition unknown to the accused at the time did not change the ‘egg-shell skull rule’ and one took one’s victim as one found the victim -and R-v- Blaue 1975 (refusal of blood-transfusion on religious grounds) this applies also in respect to the spiritual condition of the victim. The sole cause of death need not be the act or the omission and in R -v- Pagett 1983 the ‘instinctive’ fatal shooting by a policeman of a human-shield was unlawful killing of the accused who had ’substantially’ caused it; while some reluctance was shown by the courts in treating intervening medical treatment as breaking the link and in R -v- Smith 1959 as much as by 75% reduction of it by that did not break the link, in R -v- Jordan 1956 palpably wrong medical treatment was the direct and the immediate cause of death, from R -v- Cheshire 1991 it is clear that the link can be broken. Mens-rea is the fault-level of the accused in the act or mission; it is often included in the definition of serious crimes e.g., ‘with malice aforethought’; it is ‘the guilty mind’ by intention, recklessness, or gross-negligence.Intention, for most serious crimes, has to be specifically shown, by a subjective test deemed by the jury to have been present, R -v- Moloney 1985: in the form of foresight of, R -v- Hancock & Shankland 1986: the probable consequences, wilfully and deliberately carried out ~or in R -v- Nadrick 1988 with virtual certainty of the probable consequences -which may be intention: Scalley 1955.Recklessness in ss. 47, 20, 23 Offences Against the Person Act 1861 (actual bodily harm, grievous bodily harm, rape) show basic intention; it can be subjective: leaking ripped off gas-meter killed in R -v- Cunningham 1957; or objective: R -v- Caldwell 1981 (arson by drunk) -s1(2) Criminal Damage Act 1971: as to whether life would be endangered.Negligence can be mens-rea in non-strict-liability offences of e.g. Factories Act 1961 -but only as a last resort; but gross negligence, often, is sufficient mens-rea in homicide cases: Adomako 1994Strict liability does not require mens-rea e.g. Food & Drugs Act 1995 -in Meah -v- Roberts 1977 of the unfitness of drink for human consumption the accused was innocent yet still guilty ~but in Warner -v- Metropolitan Police Commissioner 1969 (dangerous drugs case) ‘one cannot be in possession the contents of a package when he/she does not know what it is’.These are an outline as guidelines; laws change, always ascertain current law.The author has a website at: http://www.geocities.com/eoa_uk

Criminal law itself consists of a variety of things. Criminal law consists primarily of the criminal laws themselves and the criminal procedures that must be followed. It also includes the legal rules defining criminal conduct and how it is punished.

Criminal law is also used to define what a crime is exactly. According to the criminal law, a crime is a wrong committed by a person against a state or federal government. Due to the fact that the crime is committed against all members of society and not just a particular individual or victim, the victim does not make the decision about whether or not to prosecute the criminal. A representative of the federal government or state makes this decision as laid out by the criminal law procedures for that state or country.

Under the classification of criminal law there are various types of crimes for which lawbreakers can be prosecuted. The first of these is felony. A felony an offense punishable by a term of imprisonment exceeding one year or by death. Another type of crime as described under the criminal law is a misdemeanor. A misdemeanor is a crime punishable by imprisonment in a county jail for up to one year or jail and fine. One of the more serious crimes that fall under the category of criminal law is assault. Assault is defined as an act that intentionally or recklessly causes another to apprehend immediate and unlawful personal violence.

People are often confused as to the difference between an appeal and an Application for a Writ of Habeas Corpus.

APPEALAn appeal (also known as a “direct appeal”) is taken immediately after a conviction and sentence. A person generally required to file a brief statement with the court called a “Notice of Appeal” within a short time after he is convicted. For example, with some limited exceptions, a Notice of Appeal must be filed within 10 days after a person is sentenced in a federal case and within 30 days after a person is sentenced in a state court case in Texas.

An appeal is limited to what is “in the record.” In other words, if an issue was not brought up through a pre-trial motion or at trial, it generally cannot be raised on direct appeal (of course there are some exceptions to this rule). Generally, in order to have the possibility of winning an appeal, three things must have happened: (1) The trial judge must have committed an “error” (i.e. did something he should not have done or did not do something he should have done); (2) The defense lawyer objected to the error at the time it was made; and (3) The error was harmful (i.e. the error might have affected the conviction or sentence).

There are four possible outcomes from an appeal: (1) The conviction and sentence can be affirmed; (2) The defendant (called the “appellant” on appeal) can be given a new trial; (3) The defendant can be given a new sentencing hearing; or (4) The defendant’s conviction can be overturned and he cannot be retried.

In the federal system, an appeal is taken to one of the twelve courts of appeals. For example, a person convicted in federal court in Texas, Mississippi or Louisiana takes an appeal to the United States Court of Appeals for the Fifth Circuit that sits in New Orleans, Louisiana. The Appellant the case submits a written brief, arguing the issues to be raised on appeal, to the Court of Appeals. The government is given an opportunity to respond with its own brief and then the Appellant can file a reply brief to the response. Often times, but not all the times, the lawyers will be called to New Orleans to argue the issues raised on appeal Eventually the Court of Appeals will render its decision in the form of a written opinion. While the time can vary greatly, generally speaking, it takes about 9-18 months from when a Notice of Appeal is filed to get a decision from the United States Court of Appeals for the Fifth Circuit. If either side is not happy with the result of the appeal, that party can file a Petition for Writ of Certiorari with the United States Supreme Court asking the Supreme Court to consider the case. Unlike, the Court of Appeals, the Supreme Court does not have to consider the case and, indeed, it considers less than one percent of the cases it is asked to hear.

In Texas, and in most other states, an appeal is taken to a state court of appeals. In Texas, there are fourteen courts of appeals. Like in the federal system, an appeal is decided by a three judge panel of the particular court of appeals that hears the case. The party that lose a criminal appeal in a Texas court of appeals can then ask the Texas Court of Criminal Appeals (essentially the Supreme Court in Texas for criminal cases) to consider its case by filing a Petition for Discretionary Review. Like the United States Supreme Court, the Texas Court of Criminal Appeals is not required to hear all the cases it is asked to hear. If the Court of Criminal Appeals refuses to hear the case or if it does hear the case and a party is not satisfied with the outcome, a Petition for a Writ of Certiorari can then be filed with the United States Supreme Court asking it to consider the case. Again, however, the Supreme Court considers less than one percent of the cases it is asked to hear

APPLICATION FOR WRIT OF HABEAS CORPUS

An Application for a Writ of Habeas Corpus can be brought if a person loses his direct appeal or if he elects not to pursue a direct appeal. Generally speaking, this procedure is used to raise issues that were not in the record and, therefore, issues that could not have been raised on direct appeal. In most states and in the federal system, the issues must be related to a denial of a constitutional right. An overwhelmingly large majority of applications for a Writ of Habeas Corpus allege that a persons’ trial lawyer and/or appellate lawyer was ineffective.

The “motions and briefs” page of our main website contains examples of some of the applications for a Writ of Habeas Corpus filed by Broden & Mickelsen and some of the issues that can be raised in such applications. Motions & Briefs

There are strict time limits for filing an Application for a Writ of Habeas Corpus (also called a 2255 motion) in federal court. The application must be filed within a year after a person’s conviction has become “final.” “Finality” of a conviction is complicated topic so person should consult with a lawyer to determine when his conviction became “final.” If the application is not filed within the one year time limit, it will be almost impossible to further contest a conviction in federal court.

Time limits, if any, to file an Application for a Writ of Habeas Corpus in state courts vary from state to state. In Texas, for example, there is no time limit in non death-penalty cases for filing an application (also called an 11.07 writ). Nevertheless, if a person does not obtain relief after filing an Application for a Writ of Habeas Corpus in a state court, they can raise the same issues in federal court despite the fact that they were originally convicted in a state court (this is called a 2254 motion). A 2254 motion must be brought within a year after a person’s conviction has become “final.” Again, “finality” of a conviction is complicated topic so a person should consult with a lawyer to determine when his conviction became “final.” Nevertheless, the time that a state writ is pending is not counted against the year time limit.

Generally speaking, a writ of habeas corpus is a person’s last shot at attacking their conviction. Nevertheless, there are many procedural traps and strict time limits involved with filing applications for such writs. Therefore, a person considering such a writ is well advised to speak to an experienced post-conviction lawyer to discuss the possibility of filing such an application.

CONCLUSION

Again, our firm has found that people are often confused as to the difference between an appeal and an Application for a Writ of Habeas Corpus. It is hoped that an example might further help people understand the difference.

Suppose a person is charged with murder in Dallas, Texas and it is uncontested that the murder occurred in Dallas on August 20, 2008 at 1:00 pm. Further suppose that the person charged with the murder can establish that he was with seven priests in Boston, Massachusetts on August 20, 2008 at 1:00 pm (Dallas time) and that he gives his trial lawyer the name and contact information of these priests.

If the lawyer tries to call these priests as witnesses at trial and the judge does not allow it, this issue could be raised on direct appeal. The reason it can be raised on direct appeal is that it will be in the trial transcript (i.e. it will be “in the record”) that the defense lawyer tried to call the priests as witnesses and the trial judge did not allow it. Therefore, a court of appeals can consider whether the trial judge was right or wrong in the ruling he made.

On the other hand, suppose the lawyer never contacts the priests and never mentions the priests during trial. Well, then, there is nothing “in the record” about the priests for a court of appeals to consider. Remember, a direct appeal, is limited to what is in the record and, generally, nothing outside the record can be raised on direct appeal. Nevertheless, a person could file an Application for a Writ of Habeas Corpus alleging that he was denied his constitutional right to effective assistance of trial because his trial counsel did not contact the priests and call them as witnesses and that, as a result, he was convicted because the jury did not know he had a solid alibi.

At Broden & Mickelsen, a good portion of our practice is dedicated to direct appeals and applications for writs of habeas corpus. For example, Clint Broden, alone, has handled over sixty appeals before the United States Court of Appeals for the Fifth Circuit, and has argued over thirty cases before that court. Nevertheless, we also try to be completely honest with our clients and the reality is that, after each step of the process, it becomes harder and harder for a defendant to win relief. Sadly, there are many times when a client could easily have won his case at a trial and comes to us after they have been convicted because they were not happy with their trial lawyer. Simply put, it is important to have a good lawyer at trial so that an appeal or an applications for writs of habeas corpus never becomes necessary. At Broden & Mickelsen, we handle federal trials throughout the country (having been involved in trial court cases in Texas, California, Illinois, Indiana, Iowa, New Orleans, Georgia, Florida, Louisiana, Ohio and New Jersey) and state trials throughout Texas. We firmly believe that to be a good trial lawyer you must also be a good appellate lawyer and that to be a good appellate lawyer you should be a good trial lawyer. In the end, we are confident that our record at trial and the number of times we have heard a jury say “not guilty” speaks for itself.