This article is written by Yavanika Shah, Associate Consultant, LawSikho.

It is almost the end of 2019 in a couple of weeks down the line and we are coming across the year-end lists for everything these days. 

For the music industry, Apple has already revealed its Apple Music Replay, Spotify has come up with its long-awaited Spotify Wrap.

News agencies have surfaced their popular Year-in-review articles. My favorite being Top 25 News photos of 2019 by Atlantic, How the months unfolded, 19 things that could define 2019 by The Economic Times and last but not the least 2019: The year in pictures by CNN.

For the audience enamored by the glitz and glamour, Later’s blog compiled the fancy Instagram Year in Review.

I love to read the year wrap-up summaries, honestly. The most intriguing take has been one by Your story’s blog that listed reasons for declaring this year as the ‘Year of Gaming in India’. Go have a read on it here. 

It’s been quite a year for all of us in the legal fraternity, hasn’t it? If it was the year of historic five-judge constitutional bench Ayodhya verdict that ended a century-long debate, the Aadhar judgment, the Maharashtra state assembly elections that had a final twist even better than the best of thrillers we ever saw, it was also the year we bid adieu to Game of Thrones, Avengers and the Star Wars series with a heavy heart. 

The absolute favorite year roundup, for me, though always remains the Oxford Word of the year. I am drawn to how the Oxford word of the year, in the most simplistic way, reflects the ethos, mood, or preoccupations of the passing year, and has a lasting potential as a term for the cultural significance of the masses in a particular year.

This year, climate emergency has been chosen as the Oxford Word of the Year. In 2019, climate emergency surpassed all of those other types of emergency to become the most written about emergency by a huge margin, with over three times the usage frequency of health, the second-ranking word.

After the global climate crisis at large, and the Delhi pollution level that became a piece of international news, we wouldn’t be surprised by the word reflecting the ethos and mood of the year it was.

While I was going through all the year reviews, I wondered to myself for what would be the possible word of the year in the legal scenario, if there did exist such analysis.

Being a recent law graduate, taking up my first job and getting into the real world, I contemplated for a while and could come up with one word that has been going in my mind every day at my workplace: UPSKILL.

In the beginning, whenever I used to hear this word, I used to wonder to myself that what exactly does it mean? 

A few days later, I could discern that in the simplest of words, upskilling means a continuous learning process. 

In research undertaken by Udemy which they labeled as the Millenials at Work Report, 42% of the employees said that learning and development is the most important benefit when deciding where to work followed by health insurance. The same report stated that 51% of employees would quit their job if the requisite training was not offered. Fascinating, isn’t it?

In another survey by a reputed US construction firm, Bridge, 86% of millennials said that providing career training and development would keep them from leaving their current position.

With all these statistics I came forth, I was astounded to see how this generation, both as an employer and an employee has become resolute for what they want out of their profession and workplaces. 

Professions have ceased to exist as a mere 9-5 workday but have improvised into becoming a hub for self-motivated and challenge-driven people coming together to build a workplace together and also, learning to do their job in the best possible ways.

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But, why do we really need to upskill ourselves? Because of the rewards, and because if we don’t do it, we become irrelevant. None of us want to miss the bus, right?

According to Forbes, the digital age requires that successful knowledge workers must have technical skills and an ability to acquire new competencies required by a remarkably fast-paced, fluid marketplace where legacy boundaries separating industries are increasingly blurred. 

Upskilling gives you an edge in comparison to the people your age. It can also help you to outcompete people who are even older than you! 

The statistics blatantly show how competitive the job market has become for both the employers so as to find the perfect fit for a role as well as for the employees to find a workplace where they can add some real value and find satisfaction in their work. While menial, low skill, repetition driven desk jobs are getting fast automated, more knowledge workers are competing for a handful of high skill, competence driven jobs. 

From the view of understanding the job market in the legal field, upskilling is important due to the rampant everyday changes in the way how things exist and work in the legal market. There are not only massive changes in the legislation, but entire new industries are coming up that demand different kinds of legal skills that we didn’t know existed earlier!

Can you think of some such skills? If you had to upskill yourself in 2020, what would be the new skills you would want to learn? Tell us, we really want to know!

Out of ideas on what new skills may help you to take your career to the next level and prepare yourself for the ever-changing economy and the biggest new opportunities of 2020? You can request us for a call with our experts. Just let us know. 

Upskilling is an unending lifelong process. Anyone who wishes to survive and get the kind of work they wish to pursue in law needs to always stay abreast of the things happening in their area of work, and beyond as well.

Often, lawyers confuse upskilling with getting a label of another degree, say for example a CS degree or an LLM. Getting a degree, diploma or certificate does not ensure upskilling. How many of you topped your contract drafting class in college and still did not learn how to draft a business contract or how to negotiate it? How many of you studied the IPC but do not know how to draft a private complaint to be filed before a magistrate?

Upskilling is, therefore, more than the tags you are accumulating. Upskilling is the need of the day. 

What is the word of the year for lawyers, according to you? Do let us know by replying to this mail.

You can also check out a few of our courses to upskill your legal acumen in your area of specialization here, that are loaded with a lot of free content material as well-

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Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Do you know the Word of the Year of 2019 for the Lawyers? appeared first on iPleaders.

This article is written by Sachi Ashok Bhiwgade, B.A.LLB (Hons.) student of Hidayatullah National Law University, Raipur. In this article, she has discussed about Chapter VII of Indian Penal Code which talks about offences relating to Army, Navy and Airforce. 

Introduction

Chapter VII of Indian Penal Code, 1860 deals with offences committed by civilians in relation to officers in Army, Navy and Airforce of the Government of India. The main objective of this chapter is to maintain discipline and order in the Armed Forces of the Union. 

In most of the countries across the globe, the defence personnel are governed by their own special laws. But if they commit serious offences (like murder) they can be tried by civil or criminal courts. However, the Military Court does not have the power to exercise jurisdiction if the offence is committed by a civilian. Similarly, as per Section 139 of the code, persons who are subject to court-martial will not be dealt with under the code. The special laws which govern them in India are: 

• The Army Act, 1950 (46 of 1950);
• The Indian Navy (Discipline) Act, 1934 (34 of 1934); and 
• The Indian Air Force Act, 1950 (45 of 1950).

The correlation between Indian Penal Code, 1860 & Army Act, 1950 can be studied under the following table: 

Offences Relating to the Army, Navy and Air Force 

The classification of offences which are committed by civilians in relation to the Army, Navy and Air Force governed by the Indian Penal Code which can be studied in the following manner:

Abetment of Mutiny 

Section 131 states that any person who abets the commission of mutiny by an officer, soldier, sailor or airman in the Army, Navy or Airforce or attempts to seduce an officer, soldier, sailor or airman from his allegiance or his duty, such person shall be liable to be punished with life imprisonment or imprisonment up to 10 years and shall also be liable to fine.

This section has two parts. First part makes abetment of mutiny punishable and the Second part makes an attempt of seduction punishable. It would in this way create the impression that Section 131 applies to situations where mutiny isn’t committed as a result of the abetment. The offence contemplated under Section 131 is an abetment which is not followed by actual mutiny, or which, supposing actual mutiny follows, is not the cause of that mutiny. 

It was observed by the court that the offence of mutiny consist in extreme subordination as if a soldier resists by force, nor if a number of soldiers rise against or oppose their military superiors, such acts proceedings from alleged or pretended grievances of a military nature. Acts of a riotous nature directed against the government or civil authorities rather than against military superiors seem also to constitute mutiny.

Under Section 132, If mutiny is committed as a consequence of such abetment by any officer, soldier, sailor or airman in the Army, Navy or Airforce then, such a person will be punished with death or life imprisonment or with imprisonment which may extend up to 10 years and also with fine. Both Sections 131 & 132 must be read together.

Section 131, mentions that “officer”, “soldier”, “sailor” or “airman” will include any person who is subject to the Army Act, 1950; the Indian Navy (Discipline) Act, 1934; the Air Force Act, 1950. This explanation was not there originally and was inserted by an amendment of Act 27 of 1870 and was amended by Act 10 of 1927.

Abetment of Assault by an Officer on a Superior Officer

Section 133 states that any person who abets any officer, soldier, sailor, or airman in the Army, Navy or Air Force of the Government of India to assault any superior officer who is in the execution of his office shall be punished with imprisonment for a term which may extend up to 3 years and shall also be liable to fine. Section 134 provides that if an assault is committed as a result of such abetment then such person shall be punished with imprisonment for a term which may extend to 7 years and also with fine. 

Sections 133 and 134 deals with abetment of assault of any officer, soldier, sailor, or airman on a superior officer. Under Section 133, only abetment of an assault is punishable while Section 134 punishes the abetment of an assault when such assault is committed as an outcome of such abetment.

Abetment of Desertion 

Under Section 135, any person who makes an abetment of desertion of any officer, soldier, sailor, or airman in the Army, Navy or Air Force of the Government of India, shall be punished with imprisonment for 2 years or with fine or with both. Section 135 does not recognize whether abetment of desertion is successful or not. The desertion abetted does not need to happen. Mere abetment is made punishable. 

Harbouring deserter

Section 136 states that if any person who knows or has reason to believe that any officer, soldier, sailor, or airman in the Army, Navy or Air Force of the Government of India has deserted, harbours such officer, soldier, sailor, or airman, he shall be punished with imprisonment which may extend to 2 years or with fine or with both. The exception is given only to a wife. 

This Section implies that if any person gives harbour (shelter) to an official who has deserted Army, Navy or Air Force working under the head of Government of India (with the exception of the individuals who are relied upon to so), he shall be punished. The crux of this Section is concealment of the deserter to prevent his apprehension.

Section 137 punishes the master or person in charge of a merchant vessel on board of which a deserter has concealed himself, even though he is ignorant of such concealment. But, some lack of care or maintenance of discipline has to be made out. The penalty is for a sum not exceeding 500 rupees.

However, in this Section, the word ‘penalty’ is used, rather than the word ‘fine’. The object apparently is to restrict the court from imposing a sentence on the accused. The term ‘Harbour’ has been defined under Section 52 A of the code.

Abetment of an Act of Insubordination

Insubordination implies refusal to obey orders. Section 138 states that any person who knows it to be an act of insubordination abets any officer, soldier, sailor or airman in the Military, Naval, or Air Service of the Government of India in his act of insubordination. He shall be held liable and shall be punished with imprisonment which may extend to 6 months or with fine or both if an act is committed in consequence of such abetment. Section 138 says that any person who abets an officer in his act of insubordination shall be punished only if the act is committed as a result of such abetment.

Wearing Garb

Section 140 states that any person who not being a soldier, sailor or airman in the Military, Naval, or Air Service of the Government of India wears a garb or wears a dress which carries a token belonging to any such soldier, sailor or airman with the intention that it may be believed that he is such a soldier, sailor or airman. Such person is liable to be punished with imprisonment up to 3 months or with fine which may extend to 500 rupees or both. 

This Section forbids any person from misleading others by wearing such garb and giving an impression that he is a soldier. The intention of the accused wearing the garb of a soldier is of inducing others to believe that he is in service at the present time. Simply wearing a uniform or carrying a token without any specific intention is no offence. For instance, Actors put on costumes of various defence service personnel for their role. 

Classification of Offences

Proposals for Reform 

The Fifth Law Commission Report suggested certain reforms to be made under Chapter VII of the Indian Penal Code. Few recommendations are discussed as follows:

• The commission recommended that this chapter should not be confined only to Army, Navy and Airforce but should apply to all the armed forces in the Union of India. Accordingly, it proposed to change the heading of the chapter from offences relating to Army, Navy and Airforce to offences relating to Armed Forces. The commission also suggested that the terms ‘Army’, ‘Navy’, ‘Air Force’ should be comprehensively defined under a new Section 130A.
• The commission proposed to revise Section 131, the commission propounded that the punishment of life imprisonment given in cases where mutiny is not committed in consequence of abetment or where it is only an attempt to seduce an officer is ‘unduly heavy’. It proposed that, if any person abets the committing of mutiny by any officer of the defence service personnel, and if mutiny is committed as a consequence of such abetment be punished with death, or life imprisonment or rigorous imprisonment of 14 years and also with fine. In any other case, the punishment should be imprisonment of 10 years and fine.
• Section 135 does not differentiate between cases when the abetment of desertion happens and when the desertion takes place as a consequence of abetment. Accordingly, the commission recommended that under Section 135 where the offence of desertion actually happens, the punishment to be increased up to 5 years.
• It recommended that existing Section 137 be omitted because the Section ‘does not appear to be of any consequence’.
• It proposed to add Section 138A and Section 138B to this chapter, which relates to offences of ‘inciting mutiny or other act of insubordination’ and ‘dissuasion from enlisting and instigating to mutiny or insubordination after enlistment to armed forces’ respectively, punishable with simple or rigorous imprisonment for a term extending up to 3 years or with fine or with both.
• The commission proposed to increase the punishment in case of abetment in an act of insubordination when abetment is successful, from imprisonment for 6 months to extend it for a term up to 2 years.
• The commission also suggested to revise Section 140, in order to increase the punishment from imprisonment of 3 months to extend it for a term up to 6 months and also with an unlimited fine.

These recommendations of the Fifth Law Commission were given effect in the Indian Penal Code (Amendment) Bill, 1978. The Fourteenth Law Commission supported the proposed changes and even affirmed the substance of the 1978 Bill. Yet, these recommendations have not been converted into statutory provisions as the Amendment Bill passed in the Lok Sabha in 1978 lapsed, due to its dissolution.

Conclusion

The Army, Navy and Air Force have a certain set of principles for the officers serving in them, but Chapter VII of the Indian Penal Code is from the perspective of the civilians. This chapter talks about those offence of abetment which might be committed by a regular citizen in connection to an official of the defence service. The fundamental objective is to bring discipline among the officers of the Army, Navy and Air Force under the Government of India. However, it is somewhat confusing that despite the fact that these offences are made punishable, cannot be dealt with under the Indian Penal Code.

References

• Ratanlal & Dhirajlal, the Indian Penal Code, Pg- 277, (rev. Justice K T Thomas, M A Rashid, 35th ed. 2017).
• M&M 112, Ratanlal & Dhirajlal, the Indian Penal Code, Pg- 277, (rev. Justice K T Thomas, M A Rashid, 35th ed. 2017).
• 42nd Report, Fifth Law Commission of India, http://lawcommissionofindia.nic.in/ 1-50/Report42.pdf.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Offences Relating to Army, Navy and Air Force appeared first on iPleaders.

This article has been written by Ashutosh Mishra.

Introduction

The gaming industry is one of the fastest-growing industries in the world. Videogames have evolved since the time when Mario, Contra, Pac-Man were played, gone are the days when videogames were only confined to be played by children, now considering the survey, the industry has more adult players as compared to the children.[1] The videogame industry is a multi-billion dollar industry. With the global game market reaching $137.9 billion in 2018 with mobile revenues amounting to approximately 50% of the total global market.[2]

With the gaming industry booming rapidly, the growth of piracy is also going directly proportional with its increase. Piracy came into existence within some time from the date of the existence of videogames. The hackers encrypting the source codes and software of games make the games available at some cost or free which is anyways lesser than the original price of the game.

The first-ever convention for the protection of literary and artistic works dates back to the Berne Convention for the Protection of Literary and Artistic Works, generally known as Berne Convention, 1886 which was accepted in Berne, Switzerland. The convention was entered into by the parties for the protection of the copyright of the work of the author and acted as an international agreement for the same with the parties to the convention abiding by their state copyright laws. The signatories to the convention include India, United States of America (USA), United Kingdom (UK), China, etc. With certain amendments to the convention, computer programs, game codes were added to be protected under the ambit of copyright law.

World Intellectual Property Organisation (WIPO) came up with the WIPO Copyright Treaty in the year 1996 due to the growing advent of technological advancements and the growth of the videogame industry and protection of the original expression of the thought of the author and not the ideas.

Countries drafted the independent laws for the protection of the Intellectual Property with Copyright Laws, Trademark Laws, Patent Laws, Industrial Design Laws so as to protect the right of the authors in relation to their work and inventions. In context to the videogame industry,  music, code, story, characters are copyrightable; company logo, game title, game sub-title, company name comes under the ambit of the trademark; hardware technical solutions, game design elements, technical solutions in software, unique method are protected under patents.[3]

Games being played on computers, consoles (Sony Playstation, Nintendo, etc.), mobile phones need to be protected as a whole by the strict laws into enforce to check for no infringement of the Intellectual Property in the selling, distributing or licensing it to any person or Entertainment Company. Videogames are protected as intellectual property as they are audio-visual and also as it contains both literal and non-literal elements.

The researcher would be dealing in-depth regarding the protection of intellectual property in videogames under Copyrights, Patents, Trademark and Industrial Design. What all laws protect the industry, till what extent a developer can copy another game, are games with similar concepts permissible by law? The global perspective involving the laws in the USA, India and UK with problems being faced globally will be discussed and laws will be analysed along with the emerging conflict of interest amongst the game developers in relation to the copying of games, characters and many more.  The researcher aims to put forward his suggestions which can improve the videogame industry in India and globally.

Laws protecting video games industry

1. Copyright laws- Copyright is concerned with protecting the work or expressions of the human intellect. Copyright protects literary and artistic works. It includes music, fine arts, technology-based works such as computer programs and electronic databases. Article 2 of Berne Convention, 1886, states the following, “”The expression ‘literary and artistic works’ shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expressions, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words”.[4] It gave a narrow meaning and thereby with the WIPO Treaty, 1996 computer programmes were added.  In the case of Tetris Holding v. Xio Interactive[5], the defendant created a game named, Mino whose appearance was nearly identical to Tetris with Tetris contending that 14 copyrighted elements were present in defendant’s game. The defendant admitted to downloading of Tetris and conducting extensive research on the same to check for what parts can be legally copied and copied the rules of the game. Later on, it was presented by Tetris that in-game screenshot was taken by the defendant. After applying relevant tests of merger and scenes-a-faire which helped in differentiating when an idea and expression are inseparable. The copying of the rules of the game is the infringement on the copyright laws as each game has different rules. The Courts stated that “there is such similarity between both the games which is akin to literal copying by the defendant”. The tests were easily dismantled as the copying was very clear. Another case of Atari Games Corp. v. Nintendo of America Inc.[6], Nintendo designed a 10NES lock-out system to prevent unauthorised games from running on its console. Atari began its work to reverse engineer the 10 NES but did not succeed. In 1987, Atari became the Licensee of Nintendo and gained the right to make games for Nintendo. Atari obtained the source code of 10 NES from Copyright Office by falsely alleging that copy was required by them and succeeded in making its replica by the name, Rabbit with the same functioning. Atari was held liable for copyright infringement by deceitfully obtaining the source code and making software akin to 10 NES. The above-mentioned cases clearly define how computer programmes are protected under copyright law as well as taking of concepts does not amount to the infringement if new changes have been added on and the proper difference is visible.

2. Trademarks laws- A trademark can be a symbol, word, product package, sub-title, a title used to identify the product from other products present in the market. It includes the name of a company (eg. “Nintendo”), name of game (eg. “Super Mario”), logos, etc. With the ownership of a trademark, an exclusive right to use that mark is available. It is beneficial in brand marketing, gaining popularity and recognition amongst the consumers. The trademark should be unique and have fanciful marks which give it strong protection and should not have generic terms which avail no protection. In Rogers v. Grimaldi, The test consists of two parts: (1) whether the trademark use is artistically relevant to the defendant’s work; and (2) explicitly misleading. The modern Rogers test is thus highly protective of expressive trademark uses. In the following cases, the application of the Rogers test has been used to determine whether trademark use in a video game was expressive-work-protected speech.[7]

3. Patent laws- A lot of game developers in the industry are of the view that games are simply computer software and they cannot be patented. Patents may be obtained on anything under the sun that is originally made by the man.[8] The methods, processes performed by a game, a game disc which has game software loaded can be patented by the author. Patents are of two types, patent of utility and patent of design. Patent of utility is related to science and technology, software innovations in digital games, technical processes that enable real-time multiplayer games. Patent of design includes the appearance of a game, geographical locations, icons, etc. Patents have been issued on many videogames emerging with new concepts, eg- US Patent No.- 6,200,138, entitled “Game display method, moving direction indicating method, game apparatus and drive simulating apparatus,” and assigned to Sega Enterprises, Ltd., describes a game method in which movable objects automatically move away from an approaching character.[9] Licensing of patents to others helps the parent company in a generation of wealth by license fees. With the help of patents, the hard work of the developers with their new inventions can be praised and helps in the progress of literary works.

4. End-user license agreement- EULA is the agreement which is entered between the licensor and the purchaser which provides the right to the purchaser to use the software. This agreement helps in the distribution, selling or licensing of software from the licensor’s perspective as it gives the right to the licensor regarding putting of clauses relating to non-transferable, non-exclusive, limited or restricted right to install the software for own use and not for resale. The agreement to restrict undesirable uses of the app and to not use the software or application for hacking servers, reverse engineering, etc. The licensor can limit its liability with certain clauses for the protection of the software and insert an indemnity clause against the licensee or purchaser if any of the conditions agreed into by the purchased have been breached. In Davidson & Associates Inc v. Internet Gateway[10], the plaintiffs Davidson and Vivendi Games, operating as Blizzard Games, had established an online system whereby end-users could access and play games, online, 24 hours a day. Internet Gateway had entered into a EULA with Blizzard, one of the terms of which was to prevent reverse engineering. Internet Gateway ignored this term and reverse-engineered the Blizzard system online, thereby allowing it to create its own online gameplay system which would work in conjunction with Blizzard. Although a clear breach of the EULA, the defendants argued correctly that reverse engineering was a fair use exception under US copyright law. Nevertheless, the Court held the EULA and other terms of use contracts overrode intellectual property law because, as individual parties entering into an agreement, they were free to agree to forego exemptions provided for in intellectual property law.[11]

The global perspective of the industry

1. United States of America- US Congress enacted the Copyright Act, 1976 with the view of protecting the multi-billion dollar video game industry. US Copyright Office specifically states: “Copyright does not protect the idea for a game, its name or title, or the method or methods for playing it. Nor does copyright protect any idea, system, method, device, or trademark material involved in developing, merchandising, or playing a game.” Copyright laws in the USA have been deciphered and a victory was achieved in favour of the videogame industry after the Tetris Holding Ruling. With various decisions taken by the US Courts on copyright cases, the judgments arising out of them act as precedents and are helpful in differentiating what all things violate the copyright law and what all do not. Trademarks in the US can last forever. Trademarks are very helpful in the brand promotion, marketing of the game. Patents too are very well protected in the USA and have Patents of utility and patents of design which further protect the rights of the author.[12]

2. India- The videogame industry in India is growing and is expected to grow more in the near future but currently covers a minuscule part in the global market.
   1. Copyright Act, 1957- Copyright means the exclusive right to do or authorise others to do certain acts in relation to (1) original, literary, dramatic, musical and artistic works, (2) cinematograph film, and (3) sound recordings. Generally, copyright is the right to copy or reproduce the work in which copyright subsists and is listed in S. 14 of the Copyright Act, 1957. In the videogame industry, it covers the computer programmes, source codes, game characters. The main object of this Act is to reward the author, composers, and game developers with their work’s exclusive right for a limited period of time and earn monetary gains.[13] Sec. 2(o) of the Copyright Act, defines literary works to include computer programmes, tables and compilations including game codes, computer database which means that the game developer, coder, programmer can be the author of that work and the game animator, creative director, etc. will not be considered as the author.

Sec 2 (ffc) of the Copyright Act, includes computer software and programmes. Programmes devised for the working of computers is generally regarded as literary work. It thereby, includes the making of the software of video games.

In Sony Computer Entertainment Europe Ltd. Vs Harmeet Singh and Ors.[14], the affiliate company of Sony Computer Entertainment made gaming consoles known as Playstation 3, Playstation Vita, etc. and developed various games to be played on those consoles. One shopkeeper, Mr. Harmeet Singh and his associates sold such consoles in New Delhi by unlocking the system and modifying original equipment, thereby, making it for use with pirated software with the help of ‘Jailbreak’software which breaks the encrypted code of the game. This was done by charging a nominal price from the purchaser enabling him to play expensive games at a very low cost. Mr. Singh only bought one original copy of the game and by overriding the code sold it to others. An ex-parte injunction was passed by the Court preventing Mr. Singh from copying, selling offering for sale, distributing, modifying the processing unit of consoles.[15]

2.2. Patents Act, 1970- The basic essence of a game lies in the gameplay with the controls, story, video, audio, etc. Section 3(m) of the Patents Act, 1970 (“PA 1970“) provides that method of playing a game does not count to be an invention. The software of a game is not patentable but game code is patentable if it has some uniqueness regarding technological innovation. The designs of a game are not patentable and even are not covered under the Design Act, 2000. A video game have many designs like in the game levels, terrains, etc. which are not even protected by the Design Act. In the case of Mattel v. Jayant Agarwal, Delhi High Court observed that a mere method of playing a game is not patentable.

2.3. Trademarks Act, 1999- In videogames, the game title, sub-title, character’s name are protected by trademarks. Videogames such as Super Mario, Tetris have been registered as trademarks at Indian IP Office. Sec. 29 and 135 of the Act, grants relief if the trademark of the registered game or company has been infringed by any party.

3. European Union- There is much less confusion when it comes to defining a computer program. European copyright law does not provide any definition of a computer program.[16] The European Copyright Framework consists of several Directives harmonising copyright law among Member States to a certain degree, and other minor documents. Even though the harmonisation is not strong, and a computer games case has not came to European Court of Justice, or any other EU court, computer games, due to their specific characteristics (trans-border sales and exploitation), will have to be addressed from an European angle eventually. The courts within the national states have tackled the problem of computer games rather poorly, creating great uncertainty and confusion. Such a situation seems to support an EU approach. The EU copyright framework has focussed on harmonising the copyright law amongst the member states. Every state has its own law thereby, minimising the work of the European Court of Justice. Considering the global perspective in the videogame industry, India and EU have to evolve with the swift growth in the industry with certain amendments in their statutes and to include more trademarks, patents for the protection of the rights of the author and thereby, helping the industry to grow.

The emergence of conflict of interest in the videogame industry

In contemporary times, we can see the boom in the videogame industry with games having realistic battlegrounds, terrains, real-world object behaviours, etc. With n number of games coming into the global market with the same concepts, similar actions and storyline, the problems which other game developers are facing is of copyright infringement of the game, game coding used in the software, expressions used in the game, characters and many more.

Comparing, Player Unknown’s Battlegrounds, popularly known as PUBG, led by EPIC Games, Tencent Games and Fortnite Battle Royale, led by EPIC Games, with both of the games released in the year 2017, the games are down-the-lines similar. PUBG filed a copyright violation lawsuit against ‘Fortnite’ regarding the various similar features like battleground warfare, concepts, hosting players on various servers, game modes, etc.[17] This provoked a plagiarism controversy and allegations that ‘Fornite’ copied “Battlegrounds” items and user interface. As the earlier version of ‘Fortnite’ only had “Save the World” mode in which forts, walls were built by the players and had to defend them from the enemy. Later on, the game was updated and free-to-play “Battle Royale” portion was added to the game which was similar to PUBG as contented by the Korean game developer.[18]

In Nova Productions Limited v. Mazooma Games Limited[19], an appeal was filed in the Court regarding the infringement of copyright by two games, namely, Jackpot Pool and Trick Shot. The appellant alleged that these two games copied a number of outputs from their game, Pocket Money. Appellant’s contention was that the outputs that appeared on the screen of the defendant were inspired by the appellant’s game. It was held that no copyright infringement took place as the outputs were way too general. Court also stated that “mere emulation of another’s program without copying the source code or graphics would not constitute copyright infringement”.

I Ate My Heart Inc v. Mind Candy Ltd.[20], the character in the Moshi Monsters game was called Lady Goo Goo (a baby with blond hair wearing large sunglasses). The appellant objected to the defendant’s release of a song called Moshi Dance sung by Lady Goo Goo which was alleged by the appellant that it resembles Lady Gaga’s song Bad Romance which received a lot of views. Court held that the character of Lady Goo Goo can be misunderstood by people as Lady Gaga with the latter having a reputation in the music industry could amount to her loss of reputation.

Considering the abovementioned cases, it is easily inferred that a very similar resemblance to the character amounts to a violation of IP but the mere taking of a concept from a game doesn’t amount to copyright infringement.

Copying of concepts is anyways permissible but modification in it is necessary with new inclusions in the game are mandatory for the game to not violate any Intellectual Property laws, example, If a video game is a car racing game, then for making it unique, developer can add various types of hybrid cars, unique rewards, different way of showing the damages to the car, etc., then certainly, the game will stand out from the rest and no infringement would have been committed by mere taking of the similar concept from the other game.

PUBG and Fortnite differ a lot from each other in their availability and price as Fortnite is available for free on any platform like PC, PS4, X-box, mobile whereas PUBG is only free if played on the mobile version. The graphics of both the games are different as the weapons glow in the dark in Fortnite whereas there is nothing of this sort in PUBG. The gameplay is vastly different as fornite includes a building mechanic with collection of resources to build forts, bridges for the protection of the player from bullets whereas PUBG is an open battleground with 100 players being hosted at a time in a particular server with the players to collect weapons, medicare, driving vehicles and running over players with the same vehicle, etc. and in-game bombings with restricting of game area. These differences in the gameplay, different game codes sets apart both the games and therefore, in my opinion, it doesn’t amount to infringement of the copyright of the authors of PUBG.[21]

Conclusion and suggestive remedies

Video game industry is a multi-billion dollar industry which is constantly on a boom, globally. With the advent of technological developments and even piracy into the market, any infringement of the IP causes millions of dollar of losses to the game developers or the authors. Techno-legal framework in the videogame industry needs to be more strengthened for covering wide and relevant cases and lowering down the piracy by the sale, distribution or licensing of games with proper channelization with the distributors and licensees known in the industry and strict indemnity clauses in the end-user license agreement. The Virtual Private Networks (VPNs) are changed by the players sitting in India and playing games in New York, London by applying proxies on their servers. The geo-location restrictions are easily by-passed in India and thus, India needs a strong techno-legal framework.

 In India, various amendments in the Copyright Act, 1957, Patent Act, Design Act, 2000 needs to be done for making the Acts at par with global conventions and state laws of different countries for protecting the rights of game developers in the country. The designs in the games including the designs of locations, characters, game levels need to be protected to save the original authors’ work which is not covered by the Design Act.

The pace in the process of copyright, trademark, patent registration should be increased as the videogame industry is growing swiftly and every day hundreds of new games are available which can put the hard-work, money and time of the game developer at stake whose right could be violated. With more patents in the industry, it will be of utmost help to the company as it will attract investors, finances, provide credibility and strength in the market both domestically and globally. The state acts should be made stricter to curb the piracy which is prevalent in the market by restricting the VPNs and illegal websites access to the people.

If all the requisites are followed like proper agreements entered into, time to time amendments in the statutes for incorporating new changes in the global market, incentives to game developers for new inventions, the industry will have minuscule rates of piracy and will be able to contribute more to the national economy as well as the rights of the authors or developers will be protected. Though there is a provision for punishment if somebody does copyright infringement but the deterrence effect is not being created due to no proper watch-dog in this industry. Videogame industry and ministry of communications of each country should work in collaboration to eliminate the piracy from the game industry and thus, helping the rights of the authors.

Endnotes

[1] Fox News. (2018). More Than Half of Adults Play Video Games, Survey Finds. [online] Available at: http://www.foxnews.com/story/2008/12/08/more-than-half-adults-play-video-games-survey-finds.html [Accessed 28 Aug. 2018].

[2] Wijman, T. (2018). Global Games Market Revenues 2018 | Per Region & Segment | Newzoo. [online] Newzoo. Available at: https://newzoo.com/insights/articles/global-games-market-reaches-137-9-billion-in-2018-mobile-games-take-half/ [Accessed 28 Aug. 2018].

[3] Wipo.int. (2018). Video Games and IP: A Global Perspective. [online] Available at: http://www.wipo.int/wipo_magazine/en/2014/02/article_0002.html [Accessed 31 Aug. 2018].

[4] Taraporevala, V. (2013). Law of intellectual property. 2nd ed. Mumbai: V.J. Taraporevala.

[5] Tetris Holding v. Xio Interactive [2012] 3 (US District Court of New Jersey).

[6] Atari Games Corp. v. Nintendo of Am. Inc. [1992] 2d (United States Court of Appeals for the Federal Circuit).

[7] Rogers v. Grimaldi [1989] 2d (United States Court of Appeal for the Second Circuit).

[8] Diamond v. Chakraborty, 447 U.S. 303, 309 (1980).

[9] Gamasutra.com. (2018). It�s Just a Game, Right? Top Mythconceptions on Patent Protection of Video Games. [online] Available at: https://www.gamasutra.com/view/feature/130727/its_just_a_game_right_top_.php [Accessed 29 Aug. 2018].

[10] Davidson & Associates Inc v. Internet Gateway [2004] 2d (US District Court for the Eastern District of Missouri).

[11] Nahmiaslaw.com. (2018). The EULA: What it Does, How it Works (and, what does EULA even mean?) | Hacked by./Xi4u7. [online] Available at: http://www.nahmiaslaw.com/the-eula-what-it-does-how-it-works-and-what-does-eula-even-mean/ [Accessed 28 Aug. 2018].

[12] Rights, N. (2018). A citizen’s legal guide to American copyright law | New Media Rights. [online] Newmediarights.org. Available at: https://www.newmediarights.org/guide/legal/copyright/citizens_legal_guide_american_copyright_law [Accessed 30 Aug. 2018].

[13] Narayanan, P. (2015). Intellectual property law. 3rd ed. New Delhi: Eastern Law House.

[14] Sony Computer Entertainment Europe Ltd. Vs Harmeet Singh and Ors [2013] (High Court of Delhi).

[15] Mondaq.com. (2018). Gaming Laws In India: A Toothless Regime – Media, Telecoms, IT, Entertainment – India. [online] Available at: http://www.mondaq.com/india/x/594124/Gaming/Gaming+Laws+In+India+A+Toothless+Regime [Accessed 30 Aug. 2018].

[16] Wipo.int. (2018). Topic 1: International IP Protection of Software: History, Purpose and Challenges. [online] Available at: http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=82573 [Accessed 30 Aug. 2018].

[17] BBC News. (2018). Fortnite sued for ‘copying’ rival game. [online] Available at: https://www.bbc.com/news/technology-44287860 [Accessed 31 Aug. 2018].

[18] koreatimes. (2018). PUBG takes US game firm to court. [online] Available at: https://www.koreatimes.co.kr/www/tech/2018/05/134_249598.html [Accessed 31 Aug. 2018].

[19] Nova Productions Limited v. Mazooma Games Limited [2007] (Court of Netherlands).

[20] Ate My Heart Inc v. Mind Candy Ltd [2011] (EWHC).

[21] Futurefive.co.nz. (2018). The differences and similarities between Fortnite Battle Royale and PUBG. [online] Available at: https://futurefive.co.nz/story/differences-and-similarities-between-fortnite-battle-royale-and-pubg/ [Accessed 29 Aug. 2018].

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Intellectual Property in the Videogame Industry- With Comparative Analysis of PUBG and Fortnite appeared first on iPleaders.

This article is written by M.S.Sri Sai Kamalini, a fourth-year student currently pursuing B.A.LLB (Hons) in School of law, SASTRA.This is an exhaustive article which deals with the various provisions related to market studies and market investigations provided in the Enterprise Act, 2002.

Introduction

The Enterprise Act, 2002 is a very infamous act of the United Kingdom that came into force on 20th June 2003. The act regulates the market competition and prevents unfair trade practices. This is an act of parliament of the United Kingdom that has made a lot of advancements in the competition law of the United Kingdom. This act has brought amendments in the Insolvency Act,1986 for facilitating the competition law in the United Kingdom. The main reason for enacting this act is to amend the law relating to the protection of the collective interest of the consumers. There are also separate provisions for mergers and market structures under this act. 

Gathering Information About Markets

Market information is essential for understanding and bringing necessary changes in the act. It is necessary to understand the nature of markets to facilitate the interest of customers. Market studies provide an overview of the economic status of the country. Market studies are mostly carried out by the Office of fair trading. Gathering information about markets will also help to identify the type of markets that are successful or markets that are suitable for the consumers. The geographical location for gathering information is mostly the United Kingdom and sometimes only a certain area of the United Kingdom is concentrated. Information about markets can also be gathered if there is any complaint of unfair trade practices in that type of market.

Super-Complaints

Section 11 of the Enterprise Act is concerned with super-complaints. According to this section if a designated consumer body complaints to the office of fair trading about any feature or combination of features of a market that is harmful to the interest of consumers, that is considered as super-complaint. The office of fair trading (OFT) has to publish a response within ninety days after receiving the complaint. The OFT must provide proper reasons for rejecting or accepting the complaints in its response. It should also mention various proposed actions that it is going to follow to solve the issue and it should also provide proper guidance. The designated consumer body can be anybody designated by the secretary of state if it appears to protect the interest of the consumer. According to this section, an order under this section shall be made by statutory instrument or it can also be subject to annulment in pursuance of resolution either houses of Parliament.

Market Studies

The office of fair trading conducts a lot of research on markets that are not suitable for the interest of consumers. The market studies are also done in response to the super-complaints received by the officer of fair trading. The market studies are done on the basis of the guidance provided by the Office of fair trading. The guidance is not regarded as a legal authority but the general principles provided in the guidance must be followed, but whenever the law allows flexibility office of fair trading can deviate from the process mentioned in the guidelines.

Market studies are done for various purposes:

1. Promoting the interest of consumers.
2. To figure out which type of market is suitable for a certain set of consumers.
3. To gain knowledge about existing and developing market practices.
4. To find out markets where there may be potential barriers to entry.
5. To figure out the problems in certain types of markets and to come up with solutions and proposals for it.
6. To find out which markets are working well in order to develop fair competition. 
7. To examine restrictions on competition.
8. To examine issues in markets in which public sector bodies operate as suppliers.
9. To develop fair competition as it increases productivity and economic status of the country because the competition is a driver of productivity.
10. To figure out various ways of making markets more competitive.

The main procedures followed by the office of fair trading for carrying out market studies:

1. Selection of markets to carry out research.
2. Cross-checking of the concerns raised by the office of fair trading.
3. Initial assessment of markets.
4. Preparation of market study proposals.
5. Considering the market study proposals against the prioritization principles provided by the OFT.
6. Carrying out the research and preparation of reports.

The office of fair trading follows a very dynamic process to carry out market studies. The selection of appropriate markets based on the complaints and for various other reasons is the first step followed. The markets are selected on the basis of complaints raised by the consumers and trade associations. It is also selected on the suggestions provided by the government authorities, local department trading standard services(TSS) and other regulatory bodies. The main reason for choosing a particular market is based on super-complaints and intelligence gathering from publicly available sources. Then the concerns are cross-checked with the information available about markets to check whether it is a valid concern. The office of fair trading then carries out an initial assessment to figure out the productivity level of the markets. It figures the productivity level of markets, the concentration of markets and entry and exits of people in markets. The office of fair trading after carrying out the initial assessments comes up with the market study proposals. The market study proposal contains basic information about markets, identification of all the possible problems. It considers various remedies and assesses the potential impact of market studies and estimates the OFT resources needed to carry out the research. The market study proposals are considered against the office of fair trading’ prioritization principles. The main prioritization principles are:

1. Impact,
2. Strategic significance,
3. Risk,
4. Resources.

The office of fair trading decides whether to prioritize a market study proposal for action. The markets will again be re-assessed against the prioritization principle if there is an important change in market structure or conduct in the market after launching the study. The office of air trading can prioritize the study if there is any change in any situation. The study should also be stopped or paused if there is a necessity to divert the resources of the office of fair trading for some other urgent work that is of high priority. The office of fair trading follows the same set of project principles even though the nature of the study can be different. The two major project principles are:

There are four stages that lead to the publication of market study reports once the market study has been prioritized for action. They are:

1.  Pre-launch.
2. Launch.
3. Data collection and analysis.
4. Informal consultation on finding and recommendations.

The duration of the study differs on the basis of various reasons like the complexity of markets, the study usually takes up to twelve months sometimes if the market is not complex it may get over within five months.  In the pre-launch period, a project team is formed which does not have a fixed size and differs according to the need of study, in a typical team there can be three to five members and it can be increased if necessary. The project team works on various issues like refining the scope of the project, reviewing the project proposal, producing a project plan and developing a  stakeholder and communication strategy. The project might also form an internal consultative steering committee when the market is complex and it requires high resistance. To launch a market study OFT will first publish a press release often accompanied by a short document that contains various information for describing the study in detail. This will be published on the official website of the office of fair trading. The phase of data collection and analysis is a very important stage as the entire process of market study depends on the result of that process. In this stage, the project team gathers all relevant information that is necessary to test the theory of harm and possible remedies provided for the harm by the office of fair trading. The project team collects the information using various means like:

1. Providing questionnaires and conducting surveys with customers.
2. Conducting individual meeting with the individual stakeholders.
3. Conducting site visits and mystery shopping exercises to find out the experience of consumers.
4. Literature review and comparing the markets with similar markets in other countries so that they can assess the issues and can get ideas from other markets that have faced the same issues and have come up with an effective solution.
5. Collecting quantitative data using surveys and is supplemented by qualitative data.

The project team analyses all the relevant data collected and comes up with various solutions to address the consumer and competition issues in the markets. The project team might also discuss the findings with the stakeholders informally in order to improve the results and find out relevant suggestions. The key stakeholders are consulted if there are a lot of stakeholders involved. They can also meet the concerned government authorities informally in order to get feedback and suggestions regarding how to implement the plan or remedies proposed. The market study reports that contain all the issues and the relevant recommendations and solutions for those issues are published in the official OFT website. The team should follow the general restrictions that are provided under Section 237 of the Enterprises Act, 2002. Section 239 of the act deals with the consent there are also other relevant sections under this act which permits disclosure when necessary, for example, Section 240 allows disclosure of information if it affects any community obligations. The officials can also disclose information when it is necessary for civil or criminal proceedings. According to Section 245 of the act, it is an offence if a person discloses information in contravention of Section 237(2) and directions provided under Section 243(4). The team will also consider Section 244 which talks about disclosure of specific information. The team will not publish any information if there is any contravention to the public interest. It also excludes commercial information and information relating to the private affairs of an individual so that it will not affect the interest of business and the people involved. It will consult the persons involved before publishing such information so that their interest is protected and it will avoid any conflicts in the future.

There are various outcomes after publishing the report:

1. Consumer-focused actions like organizing campaigns to educate the consumers are carried out.
2. The office of fair trading may provide recommendations to the persons carrying out the business to improve their standards and make recommendations to improve their business behavior.
3. It can also provide recommendations to develop a code of conduct which would make the business more effective.
4. It provides recommendations to the government to amend or regulate any policy that affects the interest of consumers. The government should respond to OFT’s recommendation within ninety days.
5. A clean bill of health is provided that addresses the public concerns and interests in the markets. 
6. It can also consult the competition commission when the results show certain markets or combination of markets affect competition.

This is an example report provided by the office of fair trading on quick house sales, you can use this to understand the nature of reports and how the office of fair trading conducts market studies.

Market Investigation References

The system of market investigation is an important tool that helps to control the adverse effects of competition. The procedure of market investigation is a very unique tool that is found in the competition legislation by the United Kingdom. The market investigation is basically a detailed investigation carried out by the competition commission. The competition commission identifies a particular competition concern in a particular market and conducts an extensive inquiry for two years.

Overview of the system of market investigation

The system of market investigation has a very detailed procedure and various steps have to be followed for carrying out the investigation. The market investigations reference provisions provided in the act has replaced the provisions of the fair trading act. The act provides various powers like the power to make references and the discretion to make references. The Enterprises act, 2013 has come up with amendments with respect to the reference process in certain cases, by changing the process for intervention by the Secretary of State and also cases raising public interest issues and introducing a new power to make cross-market references.

Guidelines and other relevant publications

Part 4 of the Enterprise Act, 2002 deals with market investigations and its procedures. There are various supplementary documents released by the office of fair trading that helps in carrying out the process.  The office of fair trading has released a market investigation reference guideline known as OFT 511, that provides guidance about making references under Part 4 of the Enterprises act. The OFT 511 clearly describes the reference process, powers of the person making references and procedure of making references. The guidelines released by the competition commission is an amended version describing the powers and procedures. The competition and market authority (CMA) have also released supplemental guidance in the year 2014 describing how to carry out the market investigation.

The making of references

The references can be made by the OFT, sector regulator or even sometimes certain ministers can make references to the competition commission when they have a reasonable ground to believe certain types of market combinations will affect the competition. The references are of four types:

1. Ordinary references- These references do not include public interest issues.
2. Cross market references- They are new types of reference with respect to specific features or combinations that exist in more than one market.
3. Restricted public interest reference– The secretary of state can make this reference where the CMA investigates the competition issues while the secretary of state investigates defined public interest.
4. Full public interest reference– The CMA has powers to investigate defined public interest along with the competition issues.

The discretion of the Competition and Markets Authority (CMA) whether to make a reference

Section 131 of the Enterprises Act, 2002  provides power to the office of trading to make references to the competition commission. The office of fair trading will make references to the competition commission only if certain statutory criteria appear to be met. The office of fair trading cannot make references on certain matters where ministerial reference is already made in the same matter and competition commission has not come to a conclusion about it. The references can also not be made if it is restricted under Section 156(1) of this act. Section 132 of the Enterprises Act, 2002 deals with the ministerial power to make references. The appropriate person to make references under this section is the secretary of state. Ministers also have reserved powers to raise ordinary and cross-market references under this section. There are certain situations where CMA has discretion not to make reference, these situations can be:

1. Markets concerned are not sufficiently important to justify the reference.
2. When the relevant customer benefits arising from the merger outweigh the adverse effects of a substantial lessening of competition.
3. In the case of anticipated mergers, the arrangements concerned are insufficiently far advanced or it is unlikely to proceed.

Relationship between the Competition act and Market investigation

Market investigation references address a wide variety of competition concerns that could not be addressed by competition act 1998. The multi-firm conducts are usually provided for reference, the conduct of single firms can be dealt with Competition Act 98 itself. A market investigation reference is the most appropriate way of dealing with the markets where vertical agreements are prevalent but no proper evidence of collusion. Market investigations look after the effectiveness of the competition whereas the competition act concentrates on particular anti-competitive agreements and abuse of dominance.

Relationship with Regulation 1/2003

Market investigation references also have a relationship with Regulation 1/2003 that is known as modernization regulation. The European Community has revised the main regulation implementing Articles 81 and 82 of the EC treaty and the process is famously known as ‘modernization’. The new regulation came into force in May 2004. It imposes an obligation on authorities and courts to apply Articles 81 and 82 where they apply national competition law to agreements or practices that affects the trade between the Member States. It also imposes certain limits on the use of national competition law.

Scale of the problem

The OFT will make references if it has a strong reason to believe it would affect the competition and it considers various factors before making such references like:

1. Size of the market.
2. The proportion of the market affected by the feature giving rise to adverse effects on the competition.
3. The persistence of features giving rise to such adverse effects of competition.
4. In rare cases, the office of fair trading will normally leave the weighing of benefits that makes reference to the competition commission.

Availability of remedies

The availability of remedies and prospective value of competition commission reports and investigations are the practical issues to be considered before making the reference. The office of fair trading will not decide to make a reference if it believes there would be no appropriate remedies even after direct investigation of competition commission. The office of fair trading will make direct application to the government authorities if it believes that the adverse effect is primarily because of the laws, regulations and government policies.

Consultation before making a reference

Section 104 provides certain duties of relevant authorities to consult before making a reference. The relevant authority has to consult the people concerned about what is proposed before making a conclusion. The relevant authorities must also take care of the restrictions imposed by the timetable and any need to keep the information confidential. According to Section 104A, the commission can go for public consultation in relation to media mergers. The commission must have regard to consulting the public if it feels that the relevant merger would affect the public.

Content and variation of references

Section 133 of the Enterprises act deals with the content of references. The market investigation reference must specify:

1. The enactment under which the reference is made.
2. The date on which the reference is made.
3. The description of goods and services to which the feature or combination of features is related.

The market investigation reference has to be made in order to confine the investigation to the effects of the features of the markets in relation to supply and acquisition. The description of the places where the goods and services are concerned and persons related to the goods and services.

Restrictions on the ability to make a reference

The OFT has discretion rather than a duty to make references. The OFT cannot make references if appropriate remedies are not available under the act. The office of fair trading will deal with the issues only if it feels it would not be appropriate to deal with the problem identified by means of undertakings in lieu of a reference. The secretary of state has the power to make references if the issue contains certain public interest.

The determination of references

There are various issues to be decided before providing it for references like the size of markets, does the competition of markets have an adverse effect on the customers and the nature of agreements.

The CMA Panel and market reference groups

The competition and market authority replaced the office of fair trading and the competition commission on April 1, 2014, as a part of amendments and reforms to the UK competition regime that was brought under enterprises act 2013. According to the present act, that is after the 2013 amendment competition and market authority is responsible for conducting both the market study and market investigation. There is a CMA board which ensures that all the statutory duty and functions are fulfilled. The members are appointed to CMA panel by the department of business, innovation, and skills and the membership is usually for eight years.

Questions to be decided

 Section 134 of the Enterprises act provides various questions to be decided after undertaking market investigation references:

1. They have to decide whether certain features of the market or combination of markets distort or restrict the supply or acquisition of any of the goods in the UK,
2. Once it is decided that there is an adverse effect on competition, the commission has to decide a lot of additional questions like whether actions should be taken under Section 138 for remedying the adverse effect,
3. It can also decide whether it can recommend the taking of action,
4. If it is found that there is a detrimental effect on customers or future customers in the form of higher prices, lower quality, less choice and innovation of goods,
5. The need to achieve a comprehensive solution, 
6. The effect of any action on relevant customer benefits,
7. The procedure and publications of the report.

Ordinary and cross-reference

There are various questions to be determined before making an ordinary reference or cross-reference. In order to make a cross-market reference, the CMA must have proper reasons for doubting that a feature, or combination of features, of more than one market in the UK, prevents, restricts or distorts competition in the UK. Only features that relate to conduct can be the subject of a cross-market reference. The ordinary references do not contain any issues related to the public interest.

Procedure

The CMA provides an administrative timetable that provides different stages that have to be followed while carrying out the investigation. The CMA usually takes eighteen months to carry out the investigation and for publishing the reports. The time limits can be extended in certain complicated cases, and also there are no statutory time limits provided. The reason for an extension has to be mentioned before in the administrative timetable. The CC3 provides relevant procedures that have to be followed while carrying out the market investigation reference.

Stage of the Process

Investigations and reports

Section 174 of the Enterprises act 2002  deals with the investigation powers of the office of fair trading. Section 176 deals with the investigation powers of the commission. The office of fair trading may use its power for deciding whether to make a reference under Section 131 or to accept undertakings under Section 154. The office of fair trading has three investigatory powers according to the section:

1. To require the attendance of parties to give reference;
2. To produce any documents that are necessary for investigation;
3. To require the supply of specified information including estimates and forecasts.

Section 176 of the act provides various powers to the competition commission. The various powers are as follows:

1. Investigation officer has powers to procure the attendance and certain documents when necessary.
2. The commission can impose penalties when necessary.

The commission files different reports in various stages, the various types of reports are:

1. Provisional decision report- When the inquiry group has provisionally formed a view about the adverse effects of competition it will be published in the provisional decision report and it is provided for public reference and consultation will be held on the basis of them. It will also contain provisional decision on remedies.
2. Response hearings-  After the provisional decision report is filed, response hearings will take place with the main parties and potential third parties and the transcripts or notes of response hearings are recorded.
3. Final report-  The CMA will publish the final decision and necessary remedies in the final report.

Duty to remedy adverse effects

Section 138 provides a duty to remedy adverse effects. The commission has the power to provide any remedy that is actionable and practical. The remedy has to be published in the final report and the commission can deviate from the remedy provided when there is a necessary change in the circumstances. The commission cannot take any action if that does not provide any action to the adverse effect of competition. 

Market investigation guidelines

The  CC3 guidelines provided by the competition commission in the year 2003 is one of the main publications that provide the procedure and various rules related to conducting market investigations. The CC3 guidelines have been revised in the year 2013. Section 171 ( 3) of the Enterprises act mandates the publication of guidelines. The guidelines have four parts which deal with the various stages and queries regarding the market investigation:

1. Part 1 deals with- References and statutory power to make references.
2. Part 2 deals with the processes and procedures followed by the competition commission.
3. Part 3 deals with the three mains issues to be considered while applying the test of an adverse effect of competition
4. Part 4 deals with remedial actions that the competition commission can provide after the inquiry.

Public Interest Cases

The act allows the ministers to ask the competition commission to consider the implications of its competition analysis for any public interest issues. The competition commission is under a duty to inform the secretary of the state that the case raises a public interest issue. Section 152 provides a duty to OFT and competition commission to recommend such cases to the secretary of the state. The cases which affect national security is mostly considered as a valid public interest issue. It is the discretion of the secretary of state to decide whether to make a full or partial reference depending on the complexity of the issue.

Issuing intervention notices

Section 139  deals with issuing public interest intervention notice by the secretary of the state. The secretary of state can provide notice to the competition commission and also to the office of fair trading. The secretary of state can issue intervention notice when market investigation reference has been made to the commission and not more than four months have been passed after making such references. The intervention notice is provided to the office of fair trading when the OFT is considering to accept an undertaking under Section 154 instead of making a reference under Section 131 or if the office of fair trading has published a notice under Section 155(1) or (4).

The intervention notices must contain:

1. The subject matter.
2. Date of publication.
3. The public considerations may be relevant to the case.
4. If a market study notice has not been published, then it will contain the date of which process of consultation began and the subject matter of consultation under Section 169 of the Enterprises act 2002.

Restricted public interest references

Section 141 of the act deals with the questions to be decided by the commission. In the restricted public interest reference CMA does not have the power to investigate public interest issues and it is only concerned with the issues affecting the competition. There are certain questions to be decided by CMA following a restricted public reference, they are:

1. Whether any feature or combination of features of the market has an adverse effect on competition.
2. If CMA figures out there is an adverse effect, it has to decide two kinds of questions on remedy, that is what action should be taken by the state and what action should be taken by the commission.

Full public interest references

The CMA has complete authority when it is a full public interest reference. Following a full public interest reference the CMA has to decide various questions like;

1. Any feature or combination of features that would have an adverse effect on competition.
2. If there is an adverse effect, any feature or combination of features that gave rise to adverse effect operates or may be expected to operate against the public interest.
3. Actions that must be taken to remove the adverse effect on public interest or recommendations of actions to the secretary of the state.
4. If the CMA does not find any adverse effect on public interest but if it finds adverse effects on competition, then actions to remove those adverse effects.

Enforcement

Chapter 3 is concerned about enforcement. The competition commission decides whether to implement remedies by means of accepting an undertaking or making an order is determined by the nature of the case. It considers various practical issues and comes to a conclusion.

Undertakings and orders

The content of orders made by the competition commission is limited whereas the subject matters considered for undertakings are vast. The process involving the agreeing of undertakings provides flexibility and suitability in implementing remedies, but this process is also time-consuming. Since the market investigation is market-wide and is not concentrated on the conduct of a particular firm, the implementation of remedies through order would be an effective option as it involves less time.

Undertakings in lieu of a reference

Section 154 deals with the concept of undertakings in lieu of a reference. The undertakings are an alternative option available to the office of fair trading instead of making a reference under Section 131. The undertaking provides a comprehensive solution and it also provides OFT more time to analyze the presence of adverse effects present in a certain combination of markets. When the adverse effect is due to the conduct of certain firms then the undertakings in lieu of reference will be a reasonable solution provided that OFT is confident it will come up with a comprehensive solution.  In assessing the customer benefits OFT will consider the same factors like the competition commission. When an undertaking has accepted the office of fair trading may not give a market investigation reference involving the same goods or service for a period of twelve months. Section 155 of the act discusses the procedural requirements that have to be followed to carry out the undertaking. Before accepting an undertaking the office of fair trading has to publish a notice of the proposed undertaking and it has to consider any representation made according to the published notice.

Interim undertakings and orders

Section 158  deals with the interim orders. The relevant authority may come up with certain orders for the purpose of preventing pre-emptive action. The relevant authorities can prohibit or restrict the doing of anything and sometimes they can allow any carrying of any action for safeguarding the assets that are available. The order under this section can come into force when determined by the order or it can be revoked or varied by another order.

Final power

Section 159 deals with the final undertakings. According to this section, an undertaking comes into force when it is accepted. The commission may in accordance with Section 138 accepts from any persons it considers appropriate undertakings to take actions specified or described in undertakings. The secretary of the state can also accept in accordance with Section 146 of this Act.

Review of enforcement undertakings and orders

Section 164 provides enforcement undertakings and orders. The relevant authority has the right to enforce the order to any person who is required to comply with that. The duty shall be owed to any person who may be affected by the contravention of undertaking or order.

The relevant authority under this section is the secretary of state or the competition commission. Compliance with an enforcement undertaking or an enforcement order shall also be enforceable by civil proceedings brought by the OFT for an injunction or for an interdict or for any other appropriate relief or remedy.

Supplementary Provisions

The Enterprise Act, 2002 provides the supplementary provisions which deal with various concepts like regulated markets, the duties of authorities to consult and gain information. The supplementary provisions also deal with the powers of investigation available to the authorities and the penalties to be awarded for certain offenses.

Regulated markets

Section 168 deals with the regulated markets. The Commission or the Secretary of State can decide whether such action would be reasonable and practicable, have regard to the relevant statutory functions of the sectoral regulator concerned. There are various sectoral regulators like civil aviation authority, the office of communications, postal services commission and the secretary of state-provided in the section.

Consultation, information, and publicity

Section 169 provides duties of consultation to certain relevant authorities. If the authority concerned feels is proposing to make a relevant decision in a way that the relevant authority considers is likely to have a substantial impact on the interests of any person. The relevant authority shall, so far as practicable, consult that person about what is proposed before making that decision. In consulting the person concerned, the relevant authority shall, so far as practicable, give the reasons for the relevant authority for the proposed decision. 

Powers of investigation and penalties

Section 174  provides powers to the office of trading to investigate a matter. The office of fair trading has powers to make a reference under Section 131 or it can carry out undertaking instead of making references under this section. The office of fair trading has the power to collect relevant documents and it can give notice to any person concerned to provide the relevant documents needed. It can also give notice to the person carrying out the business requiring him to submit the office of fair trading estimates, forecasts, returns and other information needed to carry out the investigation.

Reports

Section 177 provides that the Secretary of the state has the duty to publish reports. The secretary of state can exclude certain matters based on his discretion if he considers the publication of the matter would be inappropriate. The authority must have regard to certain considerations provided in Section 244 before disclosure of any information.

Review of decisions under Part 4 of the Enterprise Act

Section 179 deals with the review of the decision under Part 4 of the Enterprises Act. Any person aggravated by the decisions of the office of fair trading, appropriate ministers or secretary of the state in connection with the reference or possible reference may apply to the competition appeal tribunal to review the decisions. The competition appellate tribunals will apply the same principles applied by the court in the application of judicial review.

The Market Investigation Provisions in Practice

The competition commission follows the various procedures while conducting the market investigation provisions in order to balance various demands. The competition commission chooses an appropriate procedure after considering various factors like statutory time limits provided by the competition commission, effective usage of various resources provided by the competition commission and investigations must be fair and thorough. There are various stages of procedures that are in  practice like:

1. Formation of inquiry groups,
2. Providing statutory rules and obligations that have to be compiled with,
3. Overreaching procedural issues,
4. Managing a large number of parties involved,
5. Carrying out the procedures that have been decided before,
6. Thorough investigation with the help of all the materials available.
7. Providing reports after carrying out an investigation.

Meaning of ‘adverse effect on competition’

To determine whether certain markets or a combination of markets has an adverse effect on competition, the AEC test is followed. There are certain questions considered in the test like:

1. The main characteristics of the market,
2. Composition of the relevant markets within which competition may be harmed, 
3. Outcomes of the competitive process,
4. The features which are harming the competition in the relevant market.

Market definition

The market is defined as a collection of goods and services provided in a certain geographical area connected by the process of competition. The competition commission can also conclude the definition of market wider or lesser than what is provided in order to conclude the relevant market and accommodate certain types of markets. There are various determining factors that help to define the relevant market like:

1. Participating firms, 
2. Traded products,
3. Participating customers.

These factors help competition commission provide a wide definition of the term market and it also helps to assess the source of power. Market definition is thus a useful tool, but not an end in itself, and identifying the relevant market involves an element of judgment. The boundaries of the market definition do not conclude the outcome of the competition commission’s assessment of a market in any way. The assessment will also take into account the various other constraints from outside the market. The nature of competition in a particular market might require the commission to identify more than one market for the same product so that it can understand different features of the competition. For example, in some industries, certain aspects of competition are determined at a national level, while certain aspects of competition occur at a local level. The competition commission can provide various insights after looking after how competition occurs at various levels.

Theories of harm

Theories of harm is a comprehensive tool used by the competition commission to provide focus and structure to its assessment while figuring out the effects of competition in certain types of markets. The market investigations work like terms of reference already done by the referring body is used to determine various theories of harm. The initial theories are published in the issue statement that is released during the early stages of an investigation. There are five main sources of competitive harm:

1. Unilateral market power which also includes market concentration,
2. Barriers to entry and expansion, 
3. Coordinated conduct, 
4. Vertical relationships,
5. Weak customer response.

Performance and prices

The performances and prices is another important provision that is in practice and is followed while conducting the market investigation. The competition commission usually prefers four types of research while figuring out the price performance like pricing patterns,price-cost margins; price comparisons and profitability. The competition commission finds out various factors that cause a fluctuation in prices and it analyses how it affects competition. The pricing patterns may be static or it can be parallel pricing sometimes. The pattern pricing can also be found by figuring out the price concentration studies, that is how price varies with the concentration of markets.

Findings of adverse effects on competition

The competition commission while conducting the assessment will seek to establish whether or not any of the possible features, or any combination of them can be expected to harm competition when measured against a theoretical benchmark. The competition commission has the flexibility to investigate various market features in order to figure out which has an adverse effect on competition. It can investigate both the structural features of the market and the conduct of the market participant. The conduct of market participants includes any failure to act and it can be unintentional sometimes. The five sources of harms are assessed using various procedures and the findings will help the competition commission to figure out whether any aspects of the market which will have an adverse effect on competition.

Remedies

During the process of identifying and implementing a remedy to an adverse effect, the Competition Commission may have to interfere directly in the structure of established markets or it can address the conduct of firms and their customers. The competition commission has to consider various legal, factual and economic considerations before choosing an appropriate remedy. The competition commission has a wide variety of remedies to be provided in case of a presence of adverse effects. The remedies can be structural, behavioral or it can also provide recommendations when it is necessary.

Evaluation of the system

The competition commission while reaching a remedy, considers both the positive and negative of that judgment on persons who would be affected by it. The CC will also consider the impact of remedies on those businesses subject to them and on other affected parties, such as other businesses like potential entrants, or firms active in upstream or downstream markets. The CC will explain what effects it expects to result from a remedy option and will form a view of their significance. 

Orders and Undertakings Under the Fair Trading Act 1973

The fair trading act is a very important statute in New Zealand which encourages effective competition and protects the customers from adverse effects of competition. The courts in New Zealand have a lot of powers to provide orders if it feels any person is acting in contravention of the offenses provided in the acts. The court can provide these orders after the application of the commission. According to Section 42 of the act, the court has the power to order any person to disclose any information necessary. The court can also make orders to protect the interest of any person if it feels that the person would have an adverse effect due to certain arrangements. Section 43 of this act provides the court the power to give other orders like declaring the parts of contracts or sometimes the entire contract as void. The court can also provide orders to certain persons to pay compensation to another person when there is an adverse effect.

Conclusion

The Enterprise Act, 2002 is a very effective piece of legislation that has covered all the aspects of competition and provides protection to the customers. The adverse effects of competition are clearly analyzed using market studies and market investigation. The procedures and guidelines provided by the supplementary documents are very detailed. The amendment made in the year 2013 has covered all the defects in the Enterprises Act, 2002 and one of the major developments was the substitution of CMA authorities instead of competition commission and the office of fair trading. Thus the Enterprises act, 2002 is comprehensive legislation that protects consumer’s interest.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Enterprise Act, 2002: Market Studies and Market Investigations appeared first on iPleaders.

So today is the day! We are finally announcing the winner of our Blog Writing Competition of 3rd week of November 2019 (From 2nd December 2019 To 8th December 2019) 

We’d like to say a big thanks to everyone for participating! It has been a great pleasure receiving your articles on a different legal topic, they were all amazing! 

And now we’d like to congratulate our top 5 contestants who become the undoubted winners. They will receive Prize money of Rs 2000, LawSikho store credits worth Rs. 1000 and a Certificate of Merit from team LawSikho.

They will also get an opportunity to intern at LawSikho under the direct mentorship of Ramanuj Mukherjee, Abhyuday Agarwal, Harsh Jain and Komal Shah. Their articles got published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

Their entries (see below) received maximum marks based on the average marks given by the panel of editors, and has been crowned the winners!

Meet our next 5 contestants who made it to top 10 here. They will receive a Certificate of Excellence from team LawSikho.

They will also get an opportunity to intern at LawSikho under the direct mentorship of Ramanuj Mukherjee, Abhyuday Agarwal, Harsh Jain and Komal Shah. Their articles got published on iPleaders blog (India’s largest legal blog). Click here to see other perks available to them.

Click here to see all of the contest entries. Click here to see our previous week’s winners.

Our panel of judges, which included editors of iPleaders blog and LawSikho team, choose the winning entry based on how well it exemplified the entry requirements.

The contestants have to claim their prize money by sending their account details at uzair@ipleaders.in within 1 month (30 days) of the date of declaration of results and not afterwards. Certificates will be sent on the email address given by the contestant while submitting the article. For any other queries feel free to contact Uzair at 8439572315 LawSikho credits can be claimed within three months from the date of declaration of the results (after which credits will expire).

Congratulations all the participants!

Regards,

Team LawSikho

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article is written by Parth Verma, a first-year student at Symbiosis Law School, NOIDA. The author here explains in detail about theft and extortion and the difference in between these two terms. The author here helps in defining the thin membrane which cuts these two terms apart.

Theft

Section 378 of the IPC defines theft as, “Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property to such taking, is said to commit theft”. There are five explanations to the said definition, mentioned in the code (IPC) which are further illustrated by 16 examples.

Hence we can say that section 378 of the IPC defines ‘theft’ as the dishonest removal of moveable property ‘out of the possession of any person’ without the consent of that person.

Intention

Intention (be it in any form, like dishonesty) in theft plays a major role. Hence, if B owes money to C for getting his car repaired and if C keeps the car with him lawfully, as a security for a debt, and B takes the car out of C’s possession, with the intention of depriving C of the property (car) which acted as a security for B’s debt, B commits theft, in as much as he takes it dishonestly. Thus, it can also be concluded from the above situation that a person can be convicted of stealing his property if he takes it dishonestly from another.

However, Section 378 (Illustration clause ‘p’) suggests that when anything is taken under a claim of right, provided that claim is fair, good and bona fide, the thing so taken, cannot be dishonest. Thus, such taking cannot amount to theft.

Fine For Theft

Section 379 of the IPC, penalizes ‘theft’. It lays down the punishment for theft as either imprisonment for a term (which may extend to three years), or with fine, or both.

Ingredients for Theft

Theft has the following defining ingredients which must be proved in a given case, namely:

• Dishonest intention to take the property;
• The property must be moveable;
• It should be taken out of the possession of another person;
• It should be taken without the consent of that person;
• There must be some moving of the property to accomplish it’s taking;
• In the name of justification to theft, if a man in extreme want of food or clothing steals either to relieve his present necessities, the law allows no such excuse to be considered.

In other words, as per law, one can’t steal no matter what.

Movable property

The subject matter of theft must be moveable property. It must not be a static one (immovable property). Moveable property is defined in Section 22 of the IPC.

Animals

While mentioning above about the movable property in section 378, it also includes ‘animals’ in its definition. The section itself explains the matter related to animals. 

Any animal which is a pet, i.e. any animal within the possession of the owner is considered to be the property of the owner. Any property, which is taken away from the owner without the consent of the owner, amounts to theft.

Hence if A, being Z’s servant is entrusted by Z with the care of his dog takes and sells the dog to some other party, without Z’s consent. Here A’s act will amount to theft.

Section 379 of IPC as mentioned earlier, quotes punishment for theft as imprisonment for a term up to three years, or fine, or both.

As in any other theft case, the procedure here remains the same. When a person

approaches the police station with a complaint regarding the theft of an animal (pet), the complainant must give a detailed description of the lost animal and if possible, along with the photograph. It should be immediately filed as an F.I.R, a copy of which should be duly signed, stamped and dated, along with the time and should be handed to the complainant. The duty officer of the police station is responsible for making all the necessary entries. The complainant has the right to file an F.I.R. Hence animals under movable property’s definition are capable of theft.

Fish

Fish in their free state are regarded as ferae naturae (a Latin word meaning, of a wild nature. Animal (roaming freely) is not the subject of absolute ownership. A qualified property in such animals might be acquired by taking or taming them or while they are on one’s estate), but they are said to be in the possession of that person who has possession of any area full of water like a tank. Fishes are also regarded as being in the possession of a person who owns an exclusive right to catch them in a fishery, but only within that spot. Thus, theft can be said to have been committed if fish from a tank which is in the possession of its holder, is caught by the offender without the consent of the owner.

Human corpse

Dealing with a human corpse in IPC can be considered to be a special case. There can be many arguments to support this statement like a dead body is not a “person” in the eyes of the law. Hence, it not being a person, removal of moveables from a dead body can not amount to theft. To be considered theft, the movable property has to be taken out of the possession of any person without his consent and a dead body is not a person. Removing ornaments from the dead body hence, can not be equated to the removal of ornaments from the possession and consent of a person. However, the proper provision to deal with this kind of a case is Section 403 of IPC (Criminal misappropriation).

Electricity

Theft of electricity is a cognizable offence and police can investigate without any complaint by the electrical inspector. The investigation does not require any complaint filed by the person aggrieved by the theft or at the instance of the government.

Possession

As per Salmond, possession means, “the continuing exercise of a claim, to the exclusive use of a thing constitutes the possession of it”. Possession means, “the state of having, owning, or controlling something”. Although there are many kinds of possessions, some of the most important ones are constructive and joint possession.

Constructive Possession: It refers to situations where a person has no hands-on custody of an object. It can also be said that constructive possession exists where a person knows an object and the ability to control it (object), even if the person has no physical contact with it.

Joint Possession: Under this, there are two points to be considered, which are as follows:

• Mere Custody doesn’t Amount to Possession;
• Temporary Deprivation or Dispossession is also Theft.

For any act to come under the definition of theft, it must make sure that the property must be taken out of the possession of its holder without his/her consent.

Dishonest Intention

Intention (be it in any form, like dishonesty) in theft plays a major role. Hence, if B owes money to C for getting his car repaired and if C keeps the car with him lawfully, as a security for a debt, and B takes the car out of C’s possession, with the intention of depriving C of the property (car) which acted as a security for B’s debt, he commits theft, in as much as he takes it dishonestly. Thus, it can be concluded from the above situation that a person can also be convicted of stealing his property if he takes it dishonestly from another.

However, Section 378 (Illustration clause ‘p’) suggests that when anything is taken under a claim of right, provided that claim is fair, good and bona fide, the thing so has taken, cannot be dishonest. Thus, such taking cannot amount to theft.

One of the ingredients to the offence of theft is dishonest intention to take property. The intention is one of the most important deciding factors which helps in making sure that the given act is theft. The intention to take dishonestly must exist at the time of the moving of the property.

Without Consent

For better understanding on the concept of free consent and what constitutes of free , please click here. The con­sent could be implied or express. Further, it may be of the person in possession, or by any person having implied or express authority for that purpose.

Another example of this could be where A asks for charity from Z’s wife. Z’s wife gives A money, food, and clothes, of which A is aware that they belong to Z, her husband. Here A may think that Z’s wife is authorized to give away alms (money or food given to poor people). If this was A’s intention in the form of an impression then he has not committed theft.

The case would have been entirely different if, A was an illicit lover of Z’s wife and she (Z’s wife) gives a valuable property, which A knows to belong to her husband Z, and Z has not given authority to his wife to give that property away at her discretion. Here if A takes the property (dishonestly), he commits theft.

Moving or taking

A puts a treat for B’s dog to induce the Z’s dog to follow him. Here, if A intended to dishonestly take Z’s dog out of Z’s possession without his consent, A has committed theft as soon as Z’s dog had begun following him.

If A meets a bullock carrying a box of treasure and he drives that bullock in a certain direction for dishonestly taking the treasure in his possession, A commits theft of treasure, as soon as the bullock begins to move.

Difference between Larceny and Theft

Going by the literal definition, larceny is illegally taking away somebody’s personal property, with a depriving intention. Theft, on the other hand, is an act of taking of property with an intent to deprive the rightful owner of it. Hence we can conclude that larceny is a kind of theft restricted to personal property. Further, we can hence conclude that theft is an umbrella term under which lies larceny. Hence we conclude that larceny and theft are two entirely different things.

Punishment for Theft

Section 379 of the IPC establishes the punishment for theft as imprisonment up to 3 years or fine or both. Other succeeding provisions contain more severe punishment for theft under aggravating circumstances. For example, Section 380 of IPC punishes the commission of theft in a building, tent or vessel used for dwelling or residence. The object of this provision is to provide greater security to properties in dwelling premises. The punishment for this is imprisonment up to 7 years along with fine.

Aggravated Forms of Theft

Robbery

According to Section 390 of IPC, there is theft in every robbery. In other words, robbery is an aggravated form of theft. Theft essentially means to take a movable property out of a person’s lawful possession without obtaining his consent. Robbery generally takes place when, while committing theft, the offender, either attempts to actually cause or merely cause fear of instant death/hurt/wrongful restraint to any person.

Thus, theft becomes robbery when the offender commits any of the above acts while committing theft. It can also happen when he completes the theft and tries to move the property away.

Dacoity

Dacoity is the aggravated form of robbery which inturn is an aggravated form of theft. Dacoity is said to take place when robbery is committed by 5 or more people and they all share common intention.

Extortion

In literal terms, extortion refers to the illegal practice of obtaining anything by the means/usage of threat or force. Section 383 of IPC defines extortion as, “whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property, or valuable security or anything signed or sealed which may be converted into a valuable security, commits extortion”.

For example;

If A threatens to publish a defamatory statement concerning Z unless Z gives him money. A thus induces fear in Z to give him money. Hence, A has committed extortion.

If X sends club-men to threaten Z unless Z signs and delivers the required bonding to the club-men. Here X commits extortion.

If X threatens Z that he/she will keep the child of Z under wrongful confinement and tells Z that it can be avoided only when Z signs and delivers the promissory note to X. This note states that Z needs to pay certain money to X. Here, X commits extortion.

Ingredients

For any offence to be extortion it must have the following ingredients:

1. Putting a person in fear.
2. The fear so caused must be a fear of injury either to himself or to people of his interest.
3. The fear must be caused intentionally.
4. As a consequence of the exercised fear, the person put in fear must be induced by the offender to deliver any property or any valuable security or anything signed or sealed to any person which is capable of being converted into a valuable security.
5. The offender must act dishonestly in doing so, i.e., he must act to cause wrongful gain or wrongful loss.

Theft and Extortion: Distinction

The offence of extortion differs from the offence of theft in many ways as these two terms are entirely different from each other. The following are some differences:

Delivery of property is a major distinguishing factor when it comes to distinguishing between theft and extortion. In theft, the property is removed or taken away without the consent of the person who has possession of the concerned property. In the case of extortion, there is a delivery of property with consent which is wrongfully obtained, by inducing fear.

Immovable objects and moveable objects both can be made the subject matter of extortion. However, in case of theft, and only movable object can be the subject matter.

Another important distinguishing factor is the mode of delivery of the property:

In case of theft, the property is taken by the offender without the consent of said property’s holder. Hence we can conclude that the property in case of theft is delivered by the offender to himself. However, in case of extortion, the property is delivered to the offender by the person having possession of the said property because he/she is induced to fear of injury either to him/her or to the person of his/her interest. Hence, the delivery of property in extortion is done by obtaining the consent of the property’s holder, but wrongfully.

Sri Hari Singh Gour in his book, “The Penal Law of India” has explained and distinguished the offence of extortion in the following words: “The intimidation by which the extortionist dishonestly victimises another is the principal distinguishing feature of the offence which is otherwise allied to cheating and theft and other offences of which the object is dishonest deprivation of property”.

The offence of extortion is more like cheating than like theft since cheating is also capable of being committed in respect of immovable objects.

In a nutshell, it can be concluded as:

Conclusion

Hence, we saw that Theft and Extortion are two entirely different things, despite their similar appearance. Both have different ingredients. The intention is the gist of theft, whereas it’s not the case with extortion. We saw what is possession. Now it is clear that larceny is illegally taking away somebody’s personal property, with a depriving intention. Theft, on the other hand, is an act of taking of any property with an intent to deprive its rightful owner. Hence, we can conclude that larceny is a kind of theft restricted to personal property. Punishment for both, theft and extortion under IPC is either imprisonment of three years or fine or both. Aggravated forms of theft include robbery and dacoity. An ethical message to the readers, let’s become that generation in which these terms don’t exist. Let’s not be a mere paper generation who can write on paper good things, but let’s be doers of the word. Let’s create an atmosphere where we don’t find such a term’s usage anymore. Let’s be the best citizens the world has ever seen. Let’s do our job of law, to the best level possible. Let’s give this world, new hope. Let’s be a new hope-giving light to this world. Let’s be that source of light that shines forever and in whose light nations come. Nations receive the glory which we carry. People get enchanted when they come to India and be thrilled by our country and be like this is the kind of country we want ours to be. On this note I conclude my article.

References

• https://indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf
• http://lawtimesjournal.in/theft/
• https://shodhganga.inflibnet.ac.in/bitstream/10603/132472/10/10_chapter%205.pdf
• http://www.awbi.org/awbi-pdf/APL.pdf 
• https://legal-dictionary.thefreedictionary.com/Constructive+Possession
• http://www.shareyouressays.com/knowledge/the-most-essential-ingredients-of-thefts-378-indian-penal-code-1860/111710https://www.quora.com/Burglary-dacoity-robbery-and-theft-are-all-different-crimes-under-the-IPC-How-do-we-differentiate
• http://devgan.in/ipc/?a=ipc&q=extortion
• http://www.shareyouressays.com/knowledge/what-are-the-main-ingredients-of-extortion/120076
•  http://lawtimesjournal.in/difference-between-theft-and-extortion/
• https://www.academia.edu/4364238/Differences_Between_Theft_And_Extortion
• https://www.lawnn.com/difference-theft-extortion/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Theft and Extortion Under IPC appeared first on iPleaders.

The article has been written by Ayush Verma, 2nd year student at RMLNLU, Lucknow. The article provides the descriptive understanding of bail with the help of various provisions and case laws.

Introduction

The term “bail” has not been defined under CrPC. It is a security given by the accused that he will appear before the court for answering the accusations that have been made against him and include personal bonds and bail bonds. An arrested person is trusted to his sureties upon their security that the said person would appear at the designated place and time, to the jurisdiction of the court. The sureties to whom the arrested person is delivered become the bailor as they are responsible for his presence when required. A person is bailed on the bond given by the sureties and the surety must have an authority to bail the arrested person.

Meaning of bail

Bail is derived from the old French word “ballier”, which means to give or deliver. According to the Cambridge Dictionary, bail is an amount of money that a person accused of a crime pays to a law court so that he can be released until his trial. The payment is a way of making certain that the person will be available to the court for trial. In simpler words, a sum of money given as a guarantee that a person will show up before the court for hearings.

Objective of bail

According to the legal principle of presumption of innocence, a person is innocent until proven guilty. So, the concept of bail is to acknowledge this principle that a person should not be put behind the bars unless his guilt is proved. Therefore, bail is granted to such a person where he is left free of the custody or imprisonment. However prima facie (at first sight), there is a presumption of guilt in the cases of criminal offence, therefore, the conditions are put on the bail that the person would have to appear in court on the fixed date and time when called for. The purpose of such appearance can be an appeal for revision, to plead guilty, or to give evidence etc. The provision also seeks to ensure that the personal liberty of the person granted under Article 21 of the Constitution must not be curtailed, until the person is found guilty.

Classification of offences

There are two types of offences under Section 2(a) of CrPC: bailable and non-bailable.

Bailable offence

According to Section 2(a), an offence which is shown in the First Schedule of CrPC as bailable, or which is made bailable by any other law in force would be a bailable offence. First Schedule consists of two parts: the first part relates to offences under the Indian Penal Code and the second part deals with offences under other laws. The second part says that offences that are punishable for less than three years or with fine only are bailable offences. Some examples of it would be bribery or public nuisance etc. In this type of offence, bail can be claimed as a matter of right, as they are less severe.

Non-bailable offence

According to Section 2(a), any offence which is not included in the First Schedule as a bailable offence is non-bailable offence. In the second part of the First Schedule, the offences that are punishable with death, imprisonment for life or imprisonment for more than seven years are defined as non-bailable offences. In this type of offence, a person cannot be bailed as a matter of right but can request the court to grant bail. The discretion is vested with the court to grant bail or not, subject to the conditions mentioned in Section 437.

Release on bail

Circumstances in which release on bail is important

There are certain circumstances when the release on bail is extremely important. Such circumstances are those where the accused person is:

• less than sixteen years old;
• woman;
• sick or infirmed.

Cases other than those of non-bailable offence

According to Section 436, a person who is accused of an offence other than non-bailable offence, is arrested or detained without a warrant and is prepared to give bail, such person shall be released on bail. The bail in this case may be granted by the police officer having custody of the accused or by the court.

In the case of Rasik Lal v. Kishore, the Supreme Court held that in case of bailable offences, the right to get bail is absolute and if the person accused is prepared to give bail, the court or the police officer is bound to release him.

Procedure: A person needs to fill Form 45 given in the First Schedule and have to apply it to the court for getting bail.

If investigations are not completed within the prescribed number of days

In the case of Uday Mohanlal v. State of Maharashtra, the Supreme Court held if the investigation agency is not able to complete the investigation within the period prescribed in Section 167(2), the person accused is entitled to bail, if he is prepared to and furnishes the bail to the magistrate.

No reasonable grounds for believing the accused guilty of a non-bailable offence 

Under Section 437(2), if at any stage it appears to the court or the officer that the person has not committed a non-bailable offence on reasonable grounds, and there are sufficient grounds for further enquiry, the accused shall be released on bail till such enquiry is pending, subject to the provisions of Section 446A. Such release by the court or police officer can be given on a bond of the person without sureties.

Trial not concluded within 60 days

According to Section 437(6), in a case triable by a magistrate, the person accused of a non-bailable offence is entitled to bail if his trial did not conclude within sixty days from the first date on which evidence was to be taken, and the person was in custody for the whole time.

After trial but before judgement

According to the Section 437(7), a person can be granted bail in case of a non-bailable offence, after the trial but before judgement, if the court finds reasonable grounds showing the innocence of the person, on the execution of bond for his appearance to hear the delivered judgement.

Post-conviction bail

Section 389 lays down the rule for getting bail after conviction. It says that a person can be granted bail after conviction if the sentence awarded by the trial court is less than three years. Such bail can be granted even by the trial court by suspending his sentence, during the pendency of the appeal. However, if the sentence is more than three years, bail can be granted only by the appellate court.

Discretion in granting bail in cases of non-bailable offenses

The discretion to grant bail in non-bailable offences is vested with the court under Section 437 of CrPC.

Exceptions in granting bail

There are certain exceptions given in Section 437 in which bail cannot be granted to the accused person. These exceptions are:

• Where a person has been convicted of an offence that is punishable with death or imprisonment for life, or
• Where a person is a habitual offender and has been previously convicted of offences punishable with three years or more.

Requisite conditions to grant bail

Under Section 437(3), certain conditions are imposed by the court while granting bail where the accused is punished with imprisonment of more than seven years, or abetment, conspiracy, or attempt to commit any such offence:

• That such person shall act, according to the conditions of the bond.
• That such person shall not commit an offence similar to the one he is accused of.
• That such person shall induce any other person to not disclose the facts regarding the case, or tamper with the evidence.
• Other conditions may also be imposed in the interests of justice.

Powers of High Court or Court of Session

Section 439 talks about the powers of High Court or Court of Session in granting bail. They may coordinate:

• That an accused person in custody be discharged on bail, and if the offence is of the nature included in subsection 3 of Section 437, may enforce any condition that it considers fundamental for reasons given in the said sub-section.
• That any condition imposed by a magistrate be set aside or may modify them.

Also, according to Section 439(2), it may direct the person discharged on bail to be arrested and taken in custody.

Cancellation of bail

Section 437(5) provides that, any court which has discharged a person on bail as per subsection 1 and 2 of Section 437, if the court finds it necessary to do so, may direct that such person be arrested and taken in custody. It must be noted that the court which has given the bail may only cancel it, under this subsection. In a case where bail has been granted by a police officer, bail cannot be revoked by the court. In such a case, bail has to be revoked by invoking the powers of High Courts in Section 439.

The cancellation of bail under Section 439 does not require some pre-conditions. It’s just a discretionary power given to the High Court or Court of Session. The court, however, bases its cancellation on subsequent events that take place after the release of a person in bail. In the case of Surendra Singh v. State of Bihar, Patna HC laid down certain grounds on which bail may be cancelled:

• Where the accused is found to be tampering with the evidence either during investigation or trial.
• Where the accused commits a similar offence or some other heinous offence.
• Where the accused absconds and the trial gets delayed due to such act.
• Where the offence committed by the accused has caused severe law and order problems in the society.
• Where the High Court finds that lower court has wrongly granted the bail.
• Where the accused misuse the privilege of bail.
• Where the life of the person accused is in danger itself.

Anticipatory bail

Object

The provision of anticipatory bail was brought to prevent the gross misuse of powers of arrest. There were a lot of cases being filed in the court which led to innocent people being arrested without any fault. Therefore, this provision prevents such arrests. However, if a person is found guilty, the person may be arrested. So the whole idea of anticipatory bail is to prevent unreasonable arrest.

Meaning

Anticipatory bail has not been defined under CrPC. It is a misnomer. Section 438 talks about the anticipatory bail. It is stated as “Direction for grant of bail to person apprehending arrest”. From its wording only, it can be inferred that the bail is given in anticipation of arrest. Here, bail is granted even before a person is arrested. 

Jurisdiction of Courts

In Section 438, the words are clear that the person may ask for anticipatory bail from a High Court of a Court of Session. Therefore, the two courts have been given the power to grant anticipatory bail.

Reasonable apprehension of arrest for a non-bailable offence

A person having a reasonable apprehension that he might be arrested on accusation of non-bailable offence, may apply to the High Court or Court of Session to grant him bail. The bail can be granted by taking into account several factors given in Section 438:

• Nature and gravity of the accusation.
• History of the person, taking into account whether such person was previously convicted in respect of a cognizable offence.
• Possibility of the applicant to evade justice.
• Whether accusation was made with the intent of injuring or humiliating the applicant by having him arrested.

Wide discretion in granting anticipatory bail

There is a wide discretion vested with courts in granting anticipatory bail due to the presence of the term “may, it thinks fit” in Section 438. Such bail must be granted after taking into account the facts and circumstances of the case and by the imposition of conditions that the case may warrant.

Requisite Conditions

There are certain conditions on which anticipatory bail is granted by the court. These conditions are given in Section 438(2) as:

1. That the person shall be available to a police officer as and when required.
2. That the person shall not induce any person for not disclosing the facts of the case.
3. That the person shall not flee from India without the previous permission from the court.
4. Conditions under subsection 3 of Section 437 may be imposed as if the bail were granted under the said section.

Reasons to believe

There must be a reason for a person to believe that he might be arrested for committing a non-bailable cognizable offence. In the case of Adri Dharan Das v. State of Bengal, the court held that the reason to believe must be on the reasonable ground and not the whims and fancies of the applicant.

No “blanket order” of anticipatory bail

No blanket order can be passed giving anticipatory bail to the applicant without looking into the offence he has committed. The applicant should be able to show specific accusations on which relief can be given to him. An order must not interfere with the rights of police to investigate the matter.

Interim order and notice to Public Prosecutor

An interim order under Section 438 can be passed without giving notice to the public prosecutor in urgency cases. But the notice should be issued to the Government advocate or the public prosecutor simultaneously. In such a case, the order of giving bail should be re-examined taking into concern the contentions of both the parties.

After the amendment of 2005 in the CrPC, it is mandatory to hear the public prosecutor before granting anticipatory bail.

No anticipatory bail after arrest

No anticipatory bail can be granted once a person is arrested. This provision is only available before an arrest. After an arrest has been made, a person then needs to apply under Section 437 or 439 to get bail but cannot apply under Section 438.

Cancellation of anticipatory bail

Section 439(2) relates to cancellation of the anticipatory bail. Though there is no specific provision under CrPC for cancelling an anticipatory bail, it can be implied that the court which has the power to grant such bail also has the powers to revoke that bail. The power to grant anticipatory bail shall not be abused in any manner. Courts have opined that the power to cancel such bail must be exercised to meet the ends of justice.

Powers of Appellate Court to grant bail

Under Section 389, if an appeal filed by the convicted person is pending, the Appellate Court may after recording the reason in writing, order that the sentence or order against the person be suspended, and if the person is in confinement, that person be released on bail or on his own bond. However if the if the person is sentences with death, imprisonment for life or imprisonment not less than ten years, give the opportunity to the public prosecutor to show cause against such release. The bail can only be granted by the Appellate Court where the accused person is:

• already on bail, and the sentence given to him is not more than three years imprisonment, or
• where the offence committed by him is a bailable one.

However, there must not be any special reasons for refusing such bail. Under this provision, the intention of the applicant to file for appeal is a sufficient reason for releasing him.

It must be noted that bail under this Section is for a limited period only and can only be granted to a convicted person.

Power of the courts of revision to grant bail

The High Court or the Court of Session in the exercise of its revisional powers under Section 397 can ask for examining the record of any proceeding by an inferior court to check its legality, correctness or propriety. While doing so, the courts may direct that the execution of the sentence or order be suspended, and where the accused is in confinement, that the person be released on bail or on his bond pending the examination of the record.

Power to grant bail where a reference has been made to the High Court

When a reference has been made to the High Court under Section 395 by a magistrate for getting an opinion on any act, regulation or ordinance or any other section under the CrPC, the magistrate may during the pendency of such reference, either commit the accused to jail or release him on bail to appear when called upon. Such discretion by the magistrate may be made after taking into account the nature and severity of the punishment provided in that act, regulation or ordinance.

Cancellation of bail granted by High Court

Neither the Magistrate nor the Sessions judge has the power to cancel the bail granted by the High Court under Section 438 unless the order passed by the High Court is temporary or applies only to a certain stage in the proceedings. Such power may be available if the new circumstances arise during the trial after bail has been granted by the High Court.

Bail-bond

A bail bond is a document where a prisoner and one or more sureties guarantee to pay an amount fixed by the court for release of the prisoner, that he would attend the hearings of the charge that has been made against him.

There are two types of bonds:

• Personal bond: This is the bond stating that the person shall appear when called for the hearings. Here the accused doesn’t have to post but forfeits the amount if he fails to appear before the court according to the bond.
• Surety bond: In this type of bond, a person furnishes his bond with one or more sureties, and in such a case, if the person fails to attend, then the sureties would be made liable to pay the amount for his absence.

General provisions regarding bond of accused and sureties

Amount of bond and reduction thereof

Under Section 440, the amount of every bail bond executed in this chapter shall be fixed after taking due consideration of the circumstances of the case and the bond, in any case, should not be excessive.

Also, the High Court or Court of Session has the powers to direct the bail given by a police officer or a magistrate to be reduced.

Condition and execution of bonds

Section 441 deals with the provision relating to the condition and execution of a bail bond. Before releasing a person on bail or on his own bond, a bond must be executed by that person, and such bond shall be according to the police officer or court, as they think fit. 

Also, if the person is released on bail where a bond has been given by one or more sufficient sureties, it must be made sure by the sureties that such person shall attend according to the time and place mentioned in the bond and shall continue unless otherwise asked by a police officer or the court.

If any other condition is to be imposed for the release of the person, such condition shall also be there in the bond. Such a bond may also require the released person to appear before the High Court, Court of Session or other courts for answering the charge.

For checking that the sureties are fit, the court may require them to file the affidavits for such fitness and sufficiency, and may also order an inquiry itself or by the magistrate to check their fitness or sufficiency.

Declaration of bond

As per Section 441A, every person acting as surety for the accused must declare before the court the number of persons to whom he has stood as security including the accused and should give therein all the relevant particulars.

Discharge from custody

Section 442 deals with discharge from custody. It says that as soon as a bond is executed for release of the person, such person shall be released, and if he is in jail, then the court in which the bond was executed shall direct the police officer of that jail to release the person, and the police officer may do so on receiving the receipt of that order.

Sufficiency of sureties and discharge of sureties

According to Section 443, if a person acting as surety is insufficient or is afterward found insufficient, then the court may issue a warrant for arrest of the accused person and ask such a person to get a sufficient surety, and if he fails to do so, then the court may commit him to jail.

Section 444 deals with the discharge of the sureties. It says that any of the sureties or all of the sureties joint may anytime for the appearance or the attendance of a person, apply to a Magistrate for wholly discharging their bond or in its relation to the applicant. 

On such request, the Magistrate for the arrest of such a person and to be brought before the court, and shall direct the bond to be discharged on appearance of the person in so far as it relates to the applicant, and ask the applicant to find another sufficient surety or sureties, and in his failing to do so, may commit him to jail.

Bond in case of a minor

Section 448 talks about the bond required from a minor. Where the person who is to be released is a minor, then the bond should be executed by a surety or sureties only. A minor himself cannot get a bond executed for his release.

Landmark cases on bail

Hussainara Khatoon v. State of Bihar

This case dealt with the rights of the under trial prisoners, concerning habeas corpus rule.

Facts of the case: A petition of habeas corpus was filed regarding the administration of jails in the State of Bihar. It was found that a large number of prisoners including men, women, and children were put behind bars for years, awaiting their trial. Many of those prisoners had committed offences, for which they would have been given punishment not more than a few months or in some cases, two years, but they were behind jail for three to ten years and that too without any trial. 

Here the court wanted the immediate release of those prisoners. Court said that fairness under Article 21 is impaired where a person is not given a speedy trial, where a person is not given pre-trial should be released on bail on a personal bond, where the person accused is indigent and there are no chances of him to abscond, where a person has been kept under trial for a time greater than the punishment he would have been awarded, where he is not given free legal aid, and where he is too poor to engage a lawyer, provided that the lawyer given by the state is not objected by him. 

Regarding personal bonds, the court said that where a person has roots in the community and is not likely to abscond, the person shall be released. Court asked to take the following factors for ascertaining his roots in the community:

• His length of residence in the community.
• His employment status, history, and financial condition.
• His family ties and reputation in the community.
• His prior criminal record.
• The nature of offence committed, the apparent probability of conviction and the likely sentence.

Moti Ram v. State of MP

In this case, a poor mason was convicted. The apex court referred the matter to Chief Judicial Magistrate (CJM) to release him on bail, without making any specifications as to sureties, bonds etc.

The CJM fixed Rs.10,000 as surety and bond and subsequently refused to allow his brother to become surety as his property was in the adjoining village. The petitioner challenged it to the apex court.

Justice Krishna Iyer criticized the actions of the judge and said that the courts should be inclined to bail, not jail. The court said that the accused cannot be asked to furnish surety from the same district where the offence is being tried. Court further emphasized that bail can be given on personal bonds, as well as on sureties bond; the court shall also keep in mind the condition of the person while fixing the amount of the bond. And where an indigent person is involved, the court should be liberal in releasing them in the personal recognizance.

Bench-hunting or Forum-Shopping

Bench hunting refers to an offer by a litigant, along with its lawyers, to refer their matter to be heard by a specific judge or a bench to get a favourable order or judgement. It is also known as forum shopping. It can happen in three ways:

• By seeking a case to be referred to a specific judge,
• By avoiding a specific judge, or
• By writing a bogus complaint to Chief Justice of India to get an honest judge removed from a specific case.

Emerging trends in granting bail

The major changes relating to bail have been witnessed in the cases of anticipatory bail which has evolved over a period of time. The first case which laid down the principles for granting bail was Sibbia v. State of Punjab. Here, the court held that the power of granting anticipatory bail under Section 438 is extraordinary and cannot be exercised unless there are special circumstances. The court also said that such discretion should not be exercised in cases involving serious economic offences, due to public interest.

However in the recent case of P. Chidambaram v. Directorate of Enforcement which was a case involving serious economic offence, the court granted bail to P. Chidambaram saying that the availability of the appellant for further investigation, interrogation and facing trial is not jeopardized and he is already held to be not a ‘flight risk’ and there is no possibility of tampering the evidence or influencing the witnesses. The issue has been widely dealt here.

Conclusion

It is now clear that the primary objective of granting bail is not to release a person but to ensure that the person appears for the trial. The provision is also brought to prevent the personal liberty of a person and to make sure that no malicious complaint is filed. However, this is not an absolute right but subject to various limitations.

References

• https://www.lawyersnjurists.com/article/general-study-bail-crpc-laws/
• https://lawtimesjournal.in/anticipatory-bail/
• https://www.lawyersclubindia.com/articles/The-basic-rules-for-grant-or-denial-of-bail-under-CrPC-8996.asp
• https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-grants-bail-to-chidambaram-in-inx-media-case/articleshow/72359875.cms

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article is written by Kavya Vijay, This article is written by Shreya Bajaj, pursuing a Certificate Course in Advanced Corporate Taxation from LawSikho.com. Here she discusses “Five benchmark rulings by Authority for Advance Rulings”.

1. GTB Invest ASA (A.A.R. NOS. 932-933 OF 2010)

Facts- GTB Invest ASA has entered into an agreement with Spectrum ASA with the intention of hiring a vessel. It withheld taxes under section 195 of the Income Tax Act, 191 on the payments to be made by the said entity. The entity filed its return of income for the financial year 2009-2010. After having flung it, the applicant filed for the instant application before AAR raising the questions relating to TDS in respect of payments in question.

Authority: Justice Mr. P.K.Balasubramanyan (Chairman). Mr. V.K. Shridhar (Member).

Held-  “It was contended that the object of an Advance Ruling is to cut short the delay in dispute resolution as regards applicants who are eligible to apply, the bar enacted by the proviso to section 245R(2) of the Act must be strictly construed. It is also pointed out that the purpose is to attract foreign investment and keeping that in view, no applicant should be turned away by interpreting the proviso too widely and restricting the jurisdiction of this Authority. It is also submitted that a restriction on a jurisdiction conferred, should be construed strictly and jurisdiction ought not to be declined unless the case comes strictly within any one of the clauses in the proviso. It is argued as a Corollary that what is barred by clause (i) of the proviso is a case where the question raised in the application is already pending before any Income-tax Authority, Tribunal or Court and the filing of a return of income does not result in a ‘question’ pending before the Income-tax authority. It is contended that unless the question has pointedly been raised by the Income-tax Officer, the question would not arise. The Assessing Officer may not raise the question at all or the assessee may have no occasion to raise it while the assessment is being completed and hence the question cannot be said to arise merely on the filing of a return. Therefore, on the filing of a return, the bar would not be attracted.”

2. Aircom International Ltd., United Kingdom (A.A.R. NO. 1329 OF 2012)

Facts- The applicant, a foreign company, (Aircom International) entered into a Management Service Agreement (MSA) with Aircom India to provide various MSS to downsize and standardize the business conducted by Aircom India in India in accordance with the international practices. It filed an application before the Authority for Advance Ruling to seek a ruling on the issue as to whether payments being made by Aircom International for the services will be characterized as ‘fees for technical services’ (FTS) or as royalty; under article 13.

Authority- Justice Dr. Arijit Pasayat (Chairman) Mr. TBC Rozara (Member).

Held- “It was submitted that when the return of income is filed it should be treated as pending before the Income-tax authority. In this case return of income for the assessment year 2010-11 was filed on 30.9.2011 and for the assessment year 2011-12 on 22.12.2011. Notice under section 143(2) was issued for the assessment year 2011-12 and the assessment proceeding is pending. The application was filed on 30.5.2012. The matter is therefore already pending before filing the application before the Income-tax Authorities and the application is barred by proviso to section 245R(2) of the Income-tax Act, 1961.  In the present case return of income was filed before filing an application to the Authority for Advance Rulings. However, notice under section 143(2) was issued after the application was filed before the Authority. There is no dispute about the facts”.

3. Trade Circle Enterprises LLC (A.A.R. NO. 1242 OF 2012)

Facts- The applicant, a company registered in the UAE, is engaged in the business of developing and investing in the infrastructure and real estate sector. The applicant intends to invest in an entity, a 100% subsidiary company in India under the established FDI regulations. This Indian subsidiary company of the applicant intends to setup consortium by way of partnership firm under the Partnership Act, 1932 with another Indian Company namely, MEP Infra Private Limited (MEPPL). This consortium (partnership firm) proposes to acquire the undertaking of MEP Infra Private Limited, entered into with the Maharashtra State Road Development Corporation, a Corporation (MSRDC) owned by the Government of Maharashtra (‘Undertaking’). The said undertaking comprises of various bridges constructed within Mumbai and the last bridge was completed on 30th September 2006. The operating of toll roads referred to above was started by MSRD from dates prior to awarding a contract for operating and maintenance to MEPPL by the state Government of Maharashtra. MEPPL was awarded the said contract with effect from 19th November 2010 for a period of 16 years. The present Undertaking is eligible for the tax deduction of 100% of its profits and gains from such undertaking for a period of 10 consecutive assessment years out of the 20 assessment years as per provisions of Section 80IA(4)(i) of Income-tax Act, 1961. MSRDC and MEPPL have not claimed any income tax benefit under the said section.

Click Above

Authority- Justice Dr.Arijit Pasayat (Chairman) Mr. T.B.C. Rozara (Member).

Held- “There is no transaction or proposed transaction with the Indian companies mentioned in the question. At the time of hearing the learned counsel for the applicant argued that the language employed in sub-clause (i) of section 245N(a) is wider in scope in contrast with the language employed in sub-clause (ii) in as much as there is no specific requirement in sub-clause (i) that determination should relate to the tax liability of a non-resident. In order to bring in the question within the scope of section 245N of the Act, there has to be either a transaction undertaken or proposed transaction to be undertaken by the non-resident applicant. This is not the case in the present application. “Transaction” or “proposed transaction” is not the same as mere intention. In this case the applicant intends to invest in a 100 per cent subsidiary company in India which in turn intends to set up a consortium by way of partnership firm with the Indian company and the partnership firm propose to acquire the undertaking of the Indian company which is stated to be eligible for deduction u/s 80IA of the Income-tax Act, 1961. The Authority was of the view that the 100 per cent subsidiary company has to exist in reality and the partnership firm has to be set up in order to make a transaction or proposed transaction of the applicant with the Indian company/subsidiary. Hence, the application was not admitted and consequently rejected as incompetent.”3 

4. SEPCOIII Electric Power Construction Corporation ( A.A.R. NO. 1009 OF 2010)

Facts- The AAR refused to acknowledge application filed by the applicant holding that applicant has filed a return of income for the relevant year even before filing the application under section 245Q of the Income Tax Act, 1961, it must be taken that the question that is posed before the AAR for a ruling was already pending before the Assessing Officer within the meaning of clause (i) of the proviso to section 245R(2). The applicant filed an instant application contending that the reasoning leading to the invocation of the bar contained in section 245R(2) was incorrect and required to be corrected. It contended that bar under clause (i) of the proviso to section 245R(2) was only where the question raised in the application was already pending before the Assessing Officer; that mere filing of a return would not mean that the question was already pending before the Assessing Officer.

Authority- Justice Mr. P.K.Balasubramanyan (Chairman) Mr. V.K. Shridhar (Member).

Held- “So far as reliance on the Hand Book on Advance Ruling is concerned, this Hand Book itself says that it should not be construed as an exhaustive statement of law. Even otherwise, what is stated in the Hand Book cannot control the rendering of a decision with reference to the relevant provisions. It nowhere states that on a return being filed, the question cannot be said to be pending. What was referred to was an issuance of a notice under section 142(1). Section 142 itself covers three different situations and one of them is to call upon a person to file a return of income if he had not filed a return within the time allowed under section 139(1). The observations relied on, even if understood as a correct reflection of the legal position, it is confined to a situation where a notice is issued calling upon the applicant to file a return. It does not deal with a situation where a return has been filed. The applicant also submitted that it has not shown the income in respect of which the ruling is sought for in return and unless the Assessing Officer conducts a roving inquiry, he would not be able to discover the arising of any such income or the question that is now involved in the application before this authority. This is countered on behalf of the revenue by pointing out that on an application made in connection with this payment under section 197(2), an order was made directing the withholding of tax in terms of section 195 and there was no need for going in for any roving inquiry. Apparently, without claiming that the particular income is not taxable, the applicant could not have an assessment of the income for the relevant year completed under the Act. If that be so, it cannot be said that the question raised before the authority is not a question pending before the Assessing Officer in respect of the return already filed by the applicant. Therefore, the authority had not committed any mistake in refusing to entertain the application made by the applicant under section 245Q on the facts and in the circumstances of the case”.  

5. AB Holdings, Mauritius-II (A.A.R. NO 1129 OF 2011)

Facts- Applicant was a company incorporated in Mauritius with a valid Tax Residency Certificate granted by Mauritius tax authorities. It was set-up to invest in ‘S’ sector in India – For the purpose to achieve said objective, the applicant invested in shares of an Indian company through banking channels and FIRC was also obtained from RBI showing that remittances were for acquisition of shares. Subsequently, as a part of the reorganization, which indicated a long-term business and commercial purpose, shares owned by the applicant in Indian company were transferred to another group company located in Singapore.

Authority- Mr. R.S. Shukla, Incharge (Chairman) Mr. Ashutosh Chandra, Member (Revenue).

Held- “The applicant would be entitled to the benefits of the agreement between the Government of Mauritius and the Government of the Republic of India for the avoidance of double taxation and the prevention of fiscal evasion, and the income and capital gains arising to the applicant from the proposed sale of shares in ‘AB’ International to a group company in Singapore would not be liable to tax in India in terms of article 13 of the said Treaty. And that there will be no obligation to withhold tax under section 195 of the Act. The transfer pricing provisions contained in sections 92 to 92F of the Act would apply to the proposed transaction. And that the provisions of section 115JB shall not be applicable.”

Endnotes

1. A.R. NOS. 932-933 OF 2010
2. A.A.R. NO. 1329 OF 2012.
3. A.A.R. NO. 1242 OF 2012.
4. A.A.R. NO. 1009 OF 2010.
5. A.A.R. NO. 1129 OF 2011.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Five benchmark rulings by Authority for Advance Rulings appeared first on iPleaders.

This article is written by Ravi Karan, pursuing a Diploma in Companies Act, Corporate Governance and SEBI Regulations from LawSikho.com. Here he discusses “Five reasons why auditors resign before their term”.

USD 1.47 Billion – What is the significance of this number?

Unethical practices of corporate tycoons such as Nirav Modi, Mehul Choksi, Vijay Malya, Shivinder Singh, Malvinder Singh & Ramalinga Raju brought a bad name to the business ethics of India Inc. Central Government was forced to explain wrongdoings, however, when they were made to stand in the witness box, they blamed auditors for all these unprecedented lapses. 

An auditor is solely responsible for vetting the financial statements of the company. “PERIOD”. 

We should not pass the buck to auditors for every illegal activity in the company. It is perceived generally that an auditor is a watchdog of an entity, therefore they should be investigated for any or every fraud. 

Having said that it cannot be concluded that the findings of the central government are inaccurate completely. But the situation demands a thorough examination of issues faced by auditors during the course of their client engagement.

Coming back to the question USD 1.47 Billion – What is the significance of this number?

India experienced its Enron moment during the twilight years of the first decade of the 21st century.  That moment leads to the biggest showdown for Indian auditing industry. 

Mr. Ramalinga Raju (founder and chairman of Satyam Computer Services Ltd) gave Enron Moment to India by admitting to manipulating accounts of the company by USD 1.47 Billion for several years. The sales revenue of the company was inflated by issuing more than 7000 fake invoices. 

The auditor of the company Price-Waterhouse Coopers (PwC) was accused of negligence in their audit work that subsequently leads to SEBI issuing an order banning all the network firms of PwC in India. Recently the SEBI order was quashed by Securities Appellate Tribunal, however, such incidents make it difficult for auditors to perform their work diligently. 

There is a sense of fear among auditors that any action performed in good faith by them may lead to investigation or suspension in future for crimes or frauds that they were unaware of in the first place. 

With the formation of National Financial Reporting Authority (NFRA) by the Government of India along with supervision by Institute of Chartered Accountants of India (ICAI), there is a great degree of regulatory control on auditors now. 

NFRA has the power to monitor and enforce compliance with accounting and auditing standards, oversee quality of service under sub-section 2 of sec 132 of the companies act 2013, and investigate under sub-section 4 of sec 132 of the companies act 2013 for all the listed companies (whose securities are listed on any stock exchange within India or abroad) ; Unlisted public companies with paid up capital >= INR 500 Cr or annual turnover <= INR 1000 Cr or total outstanding loans, debentures, deposits <= INR 500 Cr in preceding financial year; insurance companies, banking companies, electricity generation/supply companies, companies formed under special act; Any company referred by central government; Associate/Subsidiary company whose income/net-worth exceeds 20% of consolidated income/net-worth of a company which falls under the specified criteria.

NFRA has taken up the responsibility of:-

• Recommending auditing and accounting policies and standards to the central government.
• Ensuring compliance with regards to auditing and accounting standards.
• Overseeing quality of service of the professionals 
• Power to investigate any corporates and individuals registered as members under Chartered Accountants Act 1949.
• Code of civil procedure, 1908 will apply in matters such as asking firm/individual to produce books of account, registers, any other documents; summoning of persons; issuing commissions for examination of witnesses/documents

Professional auditing firms are now pro-active in taking up auditing assignments and are calling it quits on their clients upon facing any suspicious activity during the course of their engagement. 

There can be innumerable reasons for terminating the contract before the expiration of the term. In this article, we will discuss five instances when it becomes inevitable for auditors to resign before their term expires.

1. Hiding of information that can have a material impact on the accounts

Section 143 (1) of the companies act 2013 empowers the auditors to have access to the books of account and vouchers of the company at all times. An auditor is also entitled to inquire about any information or explanation from the officers of the company. At times the company may not disclose necessary information to the auditors fearing they might fail an audit. An auditor may approve the financial statements without being given access to information that could have resulted in disapproval of the same, subsequent to which the onus of accepting the fault if discovered will come on the auditing firm.

Failure to furnish requisite information by the company upon being asked by the auditor that can have a material impact on the accounts may trigger the auditors to resign from their assignment. 

Case law/laws where auditors resigned from their assignment on account of hiding of information 

• PWC resigned as the auditor of Vakrangee Ltd due to lack of information about its election books, bullion and jewellery business. 
• PWC resigned as the auditor of Atlanta Ltd due to lack of disclosures about significant observations by tax authorities. 

2. Reputational Impact

There is a lot of competition among big accounting firms and a mushroom of relatively small size firms/ independent professionals to acquire and retain niche clientele. Therefore a firm’s reputation in the market is of paramount importance. Often a fraud committed at board level of the company may escalate to such stage that it becomes a prestige issue for not only the company but also for their suppliers & consultants. In this modern era of internet connectivity where the news spreads across in no time, auditing firms tend to back off from such companies citing irreparable reputational impact that may happen to them due to their association with the accused company. A recent example of such event is fraud detected at IL&FS that became a topic of national importance. The news leads to a spate of auditors’ resignation from the company citing the reputational risk of staying put with IL&FS.

Case law/laws where auditors resigned from their assignment citing reputational risk.

• KPMG (Germany) resigned as auditors of public company – ComRoad AG following their accounting scandal.
• BSR & Associates LLP (India) resigned as auditors of IL&FS financial services citing reputational risk after a financial fraud of massive scale was discovered at IL&FS.

3. Code of Ethics requirement as slated by ICAI

The Code of Ethics requires an auditor to consider resigning from an engagement when it is concluded that a requirement established by the Code of Ethics cannot be met and hence resignation is the only available alternative. Auditor compliance with the fundamental principles may be threatened by a broad range of circumstances. 

Some of these are explained in detail below: –

3.1) Self – interest

If an auditor is concerned about losing a client or has any other business relationship with them, that may create self-interest threat for the auditor.  This is against the ethical code requirement by ICAI, the auditor must resign from the engagement.

3.2) Self-review

If the auditor has recently been a director or officer of the client or has been in a position where he or she could have significant control over the subject for which the auditor has been engaged for then it will create a self-review threat. In such cases, the auditor should avoid taking up such assignments or resign from existing ones.

3.3) Advocacy

Advocacy threat includes circumstances where the auditor is acting as a representative for a client in litigation or disputes. Therefore auditor should consider resigning from their auditing assignments as there is a genuine intention of defending their client in litigation or disputes that may lead to biased opinion.

3.4) Familiarity

There are cases when a member of the engaged auditing firm may be a relative of director or officer of the client. Such incidents will lead to familiarity threats that are against ethical practices. 

3.5) Intimidation

If the auditor is threatened or pressurized to resign from the engagement by the client wherein a client may push auditor to reduce their fees or can ask for any uncalled demand, It may lead to intimidation threat which is against the code of ethics and calls for the resignation of the auditor from such assignments.

Case law/laws where auditors resigned from their assignment due to code of ethics 

• PWC resignation as auditors of Reliance Capital and Reliance Home Limited due to unethical practices of the firms.

4. Investigation by regulatory bodies

The central government has tightened the noose on corporate governance so as to bring an enhanced level of transparency in the business environment of India. As the government is pushing for more FDI in the country, it is important for them to implement mechanisms for proactive fraud detection.

Recent amendments in companies act 2013 has introduced strict monetary penalties and imprisonment clauses for every fraud or contravention. Section 147 (2) of the companies act 2013 states an auditor shall be punishable with fine up to INR 5 lakhs and possible imprisonment for up to a one-year term in case of willful intent to deceive the company. 

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Section 447 of the companies act 2013 imposes fine of up to INR 50 lakhs and imprisonment of up to 10 years to any person who is found to be guilty of fraud. 

Such actions by the central government have created ripples across India Inc, as a result of which companies are getting more compliant. Whenever a company comes under the scanner for violation of provisions of companies act, the auditors try to distance themselves by resigning from their engagement in fear of being cross-examined by the regulatory bodies.

Case law/laws where auditors resigned from their assignment due to investigation by regulatory bodies

• Grant Thornton resigned as auditors of Sports Direct (an FTSE 250 listed company) due to a financial reporting council investigation. 

6. Termination

It is not always the case that auditors resign at their own will before the expiration of their term. Sometimes the client may terminate the contract in case of violation of terms by the auditor. Infibeam Avenues Limited terminated the contract of S.R.B.C & Co, LLB, an audit firm affiliated to Ernst & Young citing unauthorized distribution of company’s unpublished price sensitive information by the auditing firm. A significant data breach leads to the breakdown of trust by the company on its auditor.

Case law/laws where auditors resigned from their assignment due to termination by the client

• Infibeam avenues terminated services of SRBC & Co Auditors for sharing unpublished price sensitive information 

Conclusion

Father of English literature Geoffrey Chaucer coined a term in THE KNIGHT’S TALE – “EACH MAN FOR HIMSELF”. While at the time of origin of this phrase it was meant “if you don’t look out for yourself, no one else will”; However, in today’s world, we can relate this to be a selfish act where every man wants to protect their own interests. 

Nobody wants to end up in a legal soup or suffer from irreparable reputational or financial loss. Similarly, auditors may find any reason to retreat from their client engagement if there is substantial evidence of putting their self-interest at risk in the near future. Many times, the reason to call it quits been given is PRE-OCCUPATION. Ministry of corporate affairs has reprimanded the auditing firms for citing pre-occupation as the reason to dishonour their commitment with their client and demands a detailed explanation that can be considered as a solid reason for their resignation. Perhaps it is not always the client who is at fault. 

If I have to summarize how the trend has changed for auditors over the decades, I can say

• In the decade of 2000 when auditors were in doubt, they use to disclose it in the notes to accounts.
• In the next decade, whenever they were in doubt, they use to qualify the audit report.

As this decade is coming to end when auditors are in doubt, they RESIGN.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article is written by Gauraw Kumar, a student of BVP-New Law College, Pune. In this article, he covers ‘Cognizance of Offences’ and tries to explain all the Sections of the Cr.PC related to it in easy words.

Introduction

‘‘Cognizance’’ in general meaning is said to be ‘knowledge’ or ‘notice’, and taking ‘cognizance of offences’ means taking notice, or becoming aware of the alleged commission of an offence. The dictionary meaning of the word ‘cognizance’ is ‘judicial hearing of a matter’. The judicial officer will have to take cognizance of the offence before he could proceed with the conduct of the trial. Taking cognizance does not involve any kind of formal action but occurs as soon as a magistrate as such applies his mind to the suspected commission of an offence for the purpose of legal proceedings. So, taking cognizance is also said to be the application of judicial mind.

It includes the intention of starting a judicial proceeding with respect to an offence or taking steps to see whether there is a basis for starting the judicial proceeding. It is trite that before taking cognizance that court should satisfy that ingredients of the offence charged are there or not. A court can take cognizance only once after that it becomes ‘functus officio’.

If a magistrate involves his mind not for reason of proceeding as mentioned above, but for taking action of some other kind, example ordering investigation under Section 156(3) or issuing the search warrant for the purpose of the investigation, he cannot be said to have taken cognizance of offence.

The term ‘Cognizance of offence’ has not been defined in the Criminal Procedure Code. Section 190, 191, 192, 193, 194, 195, 196, 197, 198, and 199 deals with methods by which and the limitations subject to which various criminal courts are established to take cognizance of offences. However, the meaning of the term is well defined by the Courts. Taking cognizance is the first and foremost steps towards the trail. The judicial officer will have to take cognizance of the offence before he could proceed to conduct or trail.

In the case of R.R Chari v. State of U.P., it was held by the Apex Court that:

“Taking cognizance does not mean any formal action or expected action of any kind but occurs as soon as a magistrate as such involves his mind to the suspected commission of an offence.”

Cognizance of offences by Magistrate

In Section 190, Any Magistrate of the first class and the second class may take cognizance of any offence-

1. Upon receiving a complaint of facts related to offences.
2. Upon police reports of facts.
3. Upon information received from a person (other than a police officer), or upon his own knowledge.

In Section 190(2), it is given that Second class magistrate can be empowered by Chief Judicial Magistrate to take cognizance under Section 190(1).

Transfer on the application of the accused

Section 191 deals with ‘Transfer on the application of the accused’.

When a Magistrate takes cognizance by another person other than a police officer, or upon his own knowledge, then accused is entitled to have the case inquired into or tried by another judicial magistrate. If accused or any of accused object to further proceedings before the magistrate taking cognizance, the case shall be transferred to such other magistrate specified by the Chief Judicial Magistrate.

In simple words, when a Magistrate takes cognizance by another person other than a police officer, or upon his own knowledge, then accused can change Judicial Magistrate according to his desire before taking any evidence.

Making over of cases to Magistrates

Section 192 deals with ‘Making over of cases to Magistrates’.

Any Chief Judicial Magistrate can make over the case for inquiry or trial to any competent Magistrate subordinate to him. The Chief Judicial Magistrate can give general or specific order to any first-class magistrate to make over the case for inquiry or trial to another competent Judicial magistrate.

Cognizance of offences by Courts of Session

According to Section 193, “Courts of Session are not allowed to take cognizance of any offence (as a court of original jurisdiction) unless the case has been committed to it by a Magistrate.” When it is expressly provided by this code or by any other law, then only Courts of Session are allowed. 

Limitations on the power to take cognisance

Prosecutions for contempt of the lawful authority of public servants

According to Section 195(1)(a), “Court will not take cognizance to those cases which punishable under Section 172 to Section 188 of Indian Penal Code unless a written complaint is made by a public servant.” Section 172 to 188 of IPC deals with offences related to contempt of public servant. The court will not take cognizance in case of an attempt, conspiracy, abetment of offence given in Section 172 to 188 of IPC.

According to Section 195(2), ‘‘Court will not further proceed with the trial when the order of withdrawal is given by a superior officer of a public servant (who has complained).’’ Provided that if trial in the court has been concluded then no such withdrawal shall be ordered.

Prosecution for offences against public justice

According to Section 195(1)(b)(i), ‘‘Court will not take cognizance to those cases which are offensive under Section 193 to 196, 199, 200, 205 to 211 and 228 of Indian Penal Code unless a written complaint is made by that court or by some other court to which that Court is subordinate.” Above mentioned sections of IPC deals with offences against public justice. The court will not take cognizance in case of an attempt, conspiracy, abetment of offences against public justice.

Prosecution for offences relating to documents given in evidence

According to Section 195(1)(b)(ii), ‘‘Court will not take cognizance to those cases which offensive under Section 463, or punishable under Section 471, 475 or 476 of the IPC unless a written complaint is made by that court or by some other court to which that Court is subordinate.” Above mentioned sections of the IPC deals with offences related to documents given in evidence. The court will not take cognizance in case of an attempt, conspiracy, abetment of offences relating to documents given in evidence.

Section 195(3) deals with the meaning of ‘court’ in Section195(1)(b). ‘Court’ means a Civil, Revenue or Criminal Court, and included a tribunal constituted by or under a Central, Provincial or State Act if that Act has declared as Court for the purpose of this section.

Section 195(4) deals with the concept of the superior court and subordinate court discussed in Section 195(1)(b). When Court ‘A’ has appel jurisdiction of the decision given by Court ‘B’, then we will say that Court ‘B’ is subordinate to Court ‘A’.

Prosecution for offences against the state

According to Section 196(1), ‘‘Court will not take cognizance to those cases which punishable under Chapter VI (Of Offences against the State) or under Section 153A, Section 153B, Section 295A or Section 505 of Indian Penal Code except with the consent of the Central Government or of the State Government.”

Above mentioned sections of IPC deal with offences against the state. Chapter VI of IPC deals with the offence against the state. Section 153A of IPC deals with harmony, 295A deals with the offence of statements which result in infringements of religious belief. Section 505 deals with an offence related to public mischief.

Prosecution for the offence of criminal conspiracy

According to Section 196(2), “Court will not take cognizance to offences of any criminal conspiracy under Section 120B of Indian Penal Code (other than a criminal conspiracy to commit a cognizable offence punishable with death, imprisonment for life or rigorous imprisonment for two a term of two years or upwards) unless consent in writing is given by the State Government or the District Magistrate to initiation of the proceedings.”

Where Criminal Conspiracy under Section 195 applies, no such consent shall be necessary.

According to Section 196(3), “A preliminary investigation by a police officer (not below the rank of inspector) is necessary before giving consent by Central Government, State Government or District Magistrate.”

Prosecution of Judges and Public Servants

According to Section 197(1), “Court will not take cognizance to offences done by Judges, Magistrates or any Public Servants during the course of employment unless consent in writing is given by the State Government(when offender is under course of employment of state government) or the Central Government(when offender is under course of employment of central government) to initiation of the proceedings.” In the case of State emergency in any state, only Central Government will give consent for such proceedings.

There is no consent requires for cognizance when Judges, Magistrate or Public Servants has done offence which is punishable under Section 161A, 161B, 354A to 354D, 370, 376, 376A, 376B, 376C and 509 of Indian Penal Code.

Prosecution of members of Armed Forces

According to Section 197(2), “Court will not take cognizance to offences done by any member of the Armed Forces of the Union during the course of employment unless consent given by the Central Government.”

According to Section 197(3), “Section 197(2) will also apply to such class or category of the members of Forces charged with the maintenance of public order.”

According to Section 197(4), “The Central Government and the State Government may determine the person who will prosecution of such Judge, Magistrate or public servant.”

Prosecution for offences against marriage

According to Section 198(1), “Court will not take cognizance to offences punishable under Chapter XX (Of Offences related to Marriage) of Indian Penal Code unless complaint made by the victim”.

1. With the consent of Court, the third person can also make a complaint on behalf of a victim who is idiot, lunatic, minor, sick, women(who can’t appear in public). According to Section 198(3), ‘Initially, guardian of the victim has reasonable opportunities to be heard’.
2. Third-person who is authorised by husband (serving in the armed forces of union and unable to get leave) can make a complaint on his behalf. According to Section 198(4), ‘Authorization given by husband shall be in writing, signed or attested by husband, countersigned by his Commanding officer and shall be accomplished by a certificate signed by that officer’. According to Section 198(5), ‘Any Certificate and signed document which is discussed in Section 198(4) is not presumed genuine and received in evidence unless the contrary is proved’.
3. Father, mother, brother, sister, son or daughter or by her father’s or mother’s brother or sister of the wife who is the victim under Section 494 of Indian Penal Code can make the complaint on behalf of the wife.

According to Section 198(2), “Court will not take cognizance to offences punishable under Section 497 or Section 498 (where the victim is husband) of the IPC unless the husband makes a complaint. Provided that in case of absence of the husband, some person who had care of the women on his behalf can make a complaint on behalf of the husband”.

Prosecution of the husband for rape

A husband can also rape his own wife when the wife is under fifteen years of age. According to Section 198(6), “Court will not take cognizance to offences punishable under Section 376 of Indian Penal Code if more than one year has elapsed from the date of commission’.

According to Section 198(7), Section198 also applies on abetment or attempt to commit an offence under chapter XX of IPC”.

Prosecution for defamation

According to Section 199(1), “Court will not take cognizance to offences which are punishable under Chapter XXI (Of Defamation) of the IPC unless the complaint is made by the victim’’. Provided that the third party can also make a complaint on behalf of the victim, with the permission of the Court when the victim is not able to make a complaint.

According to Section 199(2), “Court of sessions will take cognizance to offences which are punishable under Chapter XXI of the IPC, alleged to have been committed against the President of India, the Vice President of India, the Governor of a state, the Administrator of a Union territory or a Minister of the Union or of a state or of a union territory, or any other public servant employed under state or union. The complaint in writing made by the Public Prosecutor”. Section 199(2) is an exception to Section 193.

Section 199(3) deals with ‘Contents of Complaint’. It includes information about facts of the offence, the nature of that offence and information about every sufficient point in a complaint through which sufficient notice is given to accused who have done offence of defamation.

According to Section 199(4), ‘‘Court will not take cognizance to offences which are punishable under Chapter XXI of the IPC, alleged to have been committed against Governor, Public servant and Minister of State unless the complaint is made by the Public prosecutor with the consent of State Government’’ and if the same is alleged to have been committed against the President, the  Vice President, Public Servant employed under Union, then also Court will not take cognizance unless the complaint is made by the Public prosecutor with the consent of the Central Government.

According to Section 199(5), ‘‘It is mandatory to the complaint by the public prosecutor in the above section within 6 months of the commission of the offence’’.

According to Section 199(6), ‘‘Public Servant can also make complaint himself in Magistrate Court’’.

Complaints to magistrates

Examination of complainant

Section 200 deals with ‘Examination of the complainant’. The complaint shall examine upon oath the complainant and the witnesses present, and it should also be in writing and signed by the complainant, witnesses and also by Magistrate. Provided that, the Magistrate need not examine the complainant and the witnesses when the complaint is made in writing.

There is no need for re-examination in case of a ‘complaint by a public servant or court’ and ‘Magistrate makes over the case to another Magistrate under Section 192’.

The procedure by Magistrate not competent to take cognizance of the case

According to Section 201, ‘‘If a complaint is made before a Magistrate who is not competent to take cognizance of the case, then Magistrate will do two things are follows-

1. If Complaint is made in writing, then Magistrate will refer that case to that proper Court.
2. If the Complaint is not in writing, then Magistrate will direct the complainant to the proper Court.’’

Postponement of issue of process

According to Section 202, ‘‘The Magistrate authorised to take cognizance or made over to him under Section 192 may postpone the issue against the accused, and either inquire himself or by police officers or other persons as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding”.

Dismissal of the complaint

According to Section 203, “The Magistrate can also dismiss the complaint if inquiry or investigation under Section 202 result no ground for proceedings”.

Conclusion

The word ‘Cognizance’ is not defined in the Criminal Procedure Code. Basically, it means applying the Judicial mind in a suspected commission of the offence. Chapter XIV of Cr.PC deals with ‘Conditions Requisite for initiation of proceeding’ and Chapter XV of Cr.PC deals with ‘Complaints to Magistrates’.

References

• Indian Kannon
• Bare Act of Cr.PC
• Bare Act of IPC

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Cognizance of Offences appeared first on iPleaders.

This article is written by Saurab Verma student of 2nd year persuing B.A.LL.B. from Dr. Ram Manohar Lohiya National Law University, Lucknow.

Introduction

Sexual offences as we all know are basically the offences related to physically harm the private or the sexual parts of a woman. These offences include offences like rape, child abuse, gang rape, sexual harassment etc. This article will wholly cover the ambit of the provisions related to sexual offences under the Indian Penal Code, 1860. In this article, the main focus will be on the provisions related and the way these provisions have been interpreted by the courts along with the need to reform some provisions given under IPC. This article is gender-neutral and not biased only towards women because the law is equal for both men and women.

Rape 

Rape in India is now a common crime than murder. If we see in terms of crime rate, India stands at 2.2 in terms of murder while stands at 5.2 in terms of rape according to the National Crime Record Bureau(NCIB) till 2017 even if we exclude the other sexual offences like acid attacks, sexual harassment, voyeurism(practice of spying of people involved in intimate behaviours), disrobe a woman etc. Also, these crime rates are made according to the cases filed in the court but what about those incidents which are never reported in the police station due to illiteracy, lack of awareness, fear of respect, fear from society, just think of that. Also, we cannot blame the laws related to sexual offences because now the courts after the outrage of the severe cases, especially after the Nirbhaya case have made very important amendments like they have widened the definition and scope of rape because earlier the definition was just restricted to the ‘Sexual Intercourse’ which was interpreted as “Mere slightest or partial penetration of the male organ with the labia majora or the vulva or pudenda is sufficient to commit a rape” but after The Criminal Law Amendment Bill, 2013 they have explained the whole definition and made it very clear. Now, the definition of the term “Rape” under Section 375 of IPC is defined as “ A man is said to commit a rape if he penetrates his anus into any extent into the vagina, mouth, urethra or anus of a woman or inserts any object, to any extent, or any part of a body other than the anus into the vagina, urethra and anus of a woman or applies his mouth into the vagina, urethra or anus of a woman or makes her to do so with him or any other person”. Also, this definition is further subjected to the several circumstances like if the act is done against her will or without her consent or if the consent is taken by coercion or if the consent is obtained by fraud or if the consent is obtained when the girl was in intoxication or was unsound at that time or obtaining the consent of a girl which is not able to communicate and the most important when the act is done with or without the consent of a girl below 18 years of age. After, the Nirbhaya case, the age of consent was extended from 16 years to 18 years because the court believed that even at the age of 16, the girl is capable of giving the consent and the accused is also capable of the act which he is doing and therefore he should not be prosecuted under the Juvenile Justice Act.

Essential ingredients

As stated above, there are basically seven essential ingredients to constitute a rape-

• Against her will;
• Without her consent;
• With consent obtained by putting her or any other person in whom she is interested under fear of death or of hurt;
• With consent given under a misconception of fact that the man was her husband.
• Consent is given by the reason of unsoundness of mind, or under the intoxication of any stupefying or unwholesome substance;
• Women under the age of eighteen with or without consent;
• When a woman is unable to communicate consent.

‘Against her will’ 

The term “will” basically implies the desire of whether to do any act or not. However, both these expressions ‘Against the will’ and ‘Without the consent’ sounds similar but there is a difference between them because an act is done’ Against the will’ is obviously ‘without consent’ but its converse is not true. The concept of ‘Against her will’ was first explained by the court in the case of Chotelal vs State of Uttar Pradesh, where it was held that ‘Against her will’ means that the sexual intercourse has been done despite the woman has resisted and has opposed to the intercourse.

‘Without Her Consent’

The term ‘Consent’ basically means the voluntary agreement by the words, gestures, direct or indirect form, a verbal or non-verbal form of communication to engage herself in sexual intercourse. It is the most essential element to constitute rape because consensual intercourse does not amount to rape, and obviously, if the intercourse has been done by the consent, then, it defeats all the provisions related to sexual offences under IPC. Also, there is no obligation on the man to prove that whether the consent was there or not at the time of the intercourse the burden of proof is on the woman to proof for the consent. However, it has been interpreted by the courts that have incorporated in several sections of the IPC that consent obtained by misrepresentation or fraud is not consent. The focus related to this ingredient should be on the cases where prostitutions are involved because it involved consent in return of the monetary consideration by the man, therefore, if we see technically and according to the legal provisions, this is valid but actually, prostitution is illegal, therefore, the legislation should be made on the prostitution under IPC that whether consent obtained in return of money is a consent or not.

‘Consent Obtained under Fear of Death or of Hurt’

Section 375(c) of the IPC asserts that consent of the woman in order to exonerate the accused of the charge of rape must be given freely and voluntarily without any fear of death or injury. In such a case the consent obtained will not be valid consent. The scope of the clause has been widened by the Criminal Law (Amendment) Act 1983 by the insertion of the words “or any person in whom she is interested” after the words “putting her” in fear of death or hurt in the clause. In the case of Prakash vs State of Maharashtra, where there was sexual intercourse with the wife by the businessman and policeman where they obtained the consent because they started beating her husband. The court held them liable and said that the actual force is not necessary but a threat to use force is sufficient to obtain the consent for intercourse.

‘Consent Obtained by Fraud’

As incorporated in Section 375(4) of the IPC that consent given by a woman to a person for intercourse believing the person to be her husband whereas, in fact, he is not her husband, is no consent in law. In such a situation the person knows the fact of deception and pretends to be the husband of the woman. These cases are basically related to the bigamy which means that at the time of the marriage, the accused has another spouse living and the consent is obtained by making believe to his wife that he is unmarried to obtain the consent for sexual intercourse with the victim. Its applicability is interpreted by the court in the case of  Bhupinder Singh v. Union Territory of Chandigarh, where the complainant Manjit Kaur married the accused Bhupinder Singh, who she had met through work, in 1990 and they engaged in the intimate relations. Later, she became pregnant but accused made her abortion in 1991. When she was pregnant again in 1994, she met her husband’s two friends who told her that he was already married and had children from his first wife. On being confronted her husband left her on the pretence of work and did not turn up even after she gave birth to a daughter. She made a complaint and he was held guilty of rape because prosecutrix married accused without knowledge of his first marriage. The consent for cohabitation was given under the belief that the accused was her husband. It was also held that delay in lodging complaint by prosecutrix couldn’t, in any event, wash away the offence because there was no consent. Therefore, the Supreme Court refused to interfere with the order of conviction passed by the High Court.”

Is Promise to Marry the Victim a Misconception of Fact Viciating her Consent?

There is a difference between a ‘breach of a promise’ and ‘a false promise’. Breach of promise is done in a bonafide form, where the consent to engage in sexual intercourse is made by making promise to marry but later the situations and circumstances are such that later he refuses to marry, that does not amount to rape because the intention was good at the time of the intercourse and he genuinely wanted to marry her later whereas ‘false promise’ includes the consent obtained only for having sexual intercourse with a woman and is having mala fide intention at the time of obtaining the consent, and where promise to marry was used as a tool to obtain the consent, therefore, this amounts to rape. Therefore, it totally depends upon the intention of the man or a woman, however, the burden of proof is on the woman to proof the mala fide intention of the man to prevent the man from being accused against the malicious and false proceedings against them. 

Consent of an Insane or Intoxicated Woman

Section 375(5) of the IPC states that if the consent has been taken of the woman who at the time of giving the consent was intoxicated or not of sound mind or if the consent is taken by administration by him personally by any stupefying substance to which the woman is unaware about the consequences of that to which she gives consent. This clause was incorporated by the Criminal Law Amendment, 1983 to prevent the girl from being raped in a condition where she is not aware of the consequences of her actions and the man knowing about this condition can not take advantage of that woman by obtaining the consent in that situation. This was also been interpreted by the court in the case of Tulsidas Kanolkar vs State of Goa where the accused had sexual intercourse with the girl when she was intoxicated and the girl later became pregnant. The Apex court held him liable and was given the rigorous imprisonment of ten years with the fine of Rs.10000.

Consent of a Woman under Eighteen Years of Age

As incorporated in Section 375(6) of the IPC, a man is said to commit a rape, if the consent has been taken of a girl who is below the age of eighteen. Earlier, the age for giving the consent was sixteen but after the Criminal Law Amendment Act, 2013, it was extend to eighteen years after the Nirbhaya Case to prevent the sexual offences and abuse to the teenagers, because the courts have interpreted that girls of the age group from 13 to 18 years are not that mature to understand the consequences of the acts related to intimated relations, therefore, the courts have immuned them. Also, the fact that every person gets its every right when he/she becomes an adult and the age is considered as eighteen years, therefore, the age for giving the consent is to be made as eighteen years.

Marital Rape—An Exception to ‘Rape’

Marital Rape is the sexual intercourse between the husband and the wife without the consent of the wife. It is recognized as an exception in the definition of rape as incorporated under Section 375 of IPC stating that “Sexual intercourse or sexual activities with a man with his own wife, the wife not being under fifteen years of age, is not rape”.This topic has two sides, from the view of a man and the other from the woman. If we see from the woman side, sexual intercourse with a wife without her consent amounts to physical and sexual violence as held in the case of State of Karnataka vs Krishnarappa, also, in the case of Suchita Srivastava vs Chandigarh Administration, Right to make choices were given related to sexual activities, with right to liberty, privacy, dignity and bodily integrity under Article 21 of the constitution. The constitutionality of this exception has also been challenged in several petitions as violative of Article 14 and 21 of the Indian Constitution. As Article 14 states about the equality before the law and equal protection of laws, the woman is discriminated against the criminal law who are the victims who have been raped by the husbands. This section also discriminates against the married woman by denying them equal protection from rape and sexual harassment. One more concern if we see especially from the side of a married woman, this exception has created the classification between the married and unmarried woman, because unlike married woman, unmarried woman is protected under IPC but if a married woman is being raped by her husband, then, she cannot claim justice under IPC due to lack of legislative provisions regarding marital rape under IPC, they can just move to the court with the offence of domestic violence, whose punishments are different and are less strict as compared to the provisions under IPC.

 If we see it under the ambit of Article 21 of the constitution, this violates their right to life with dignity, because it is totally the choice of a woman to engage herself in sexual intercourse or not and you cannot force her. Thus, it had been recognized in the case of Justice K S Puttaswamy(Retd.) vs Union of India, where the court held that the right to privacy as a fundamental right and held that right to privacy also includes ‘Decisional Privacy’, especially an ability to make intimate decisions primarily consisting of a sexual or procreative nature and also which is in respect of the intimate relations. If we look from the man’s side, if this exception is criminalized under IPC, then, it will lead to increase in a number of false complaints just for the sake of personal revenge and ego and it will overburden the judiciary. Another big concern is intercourse with the husband denies the concept of ‘Against her will’ because as we know from the earlier times, India has been known to as a patriarchal society end at the time when IPC was made, the woman was considered not as a separate entity but as a chattel of her husband but Indian law has recognized woman as separate entity and laws are made accordingly. Also, this fact should be considered that if the woman is married, then she becomes the wife of her husband and not the slave of her husband and thus she has the right to whether to engage herself in the intimate relations or not and therefore legal provisions should be made on Marital Rape.

Punishment for Rape

The provision for punishment for rape is stated under Section 376 of the IPC where the rigorous imprisonment for not less than 10 years is given which can be extended up to imprisonment for life. Also, some entities are specified separately, namely, public servant, police officers, members of armed forces, management of staff or jail or if the rape is committed repeatedly on the same woman, are also subjected to liable for the rigorous imprisonment for not less than 10 years and can be extended up to imprisonment for life and will also be liable for fine for the same. Also, if the rape is committed to a woman who is under the age of twelve, he will be liable for the imprisonment which shall not be less than 20 years and can extend to imprisonment for life as incorporated under Section 376AB of the IPC. The legislation have made further and separate provision for the sexual intercourse by a person in authority which basically means if there is a fiduciary relationship between a man and a woman meaning thereby, where one person is in a position to dominate the other like the relationship between a doctor and a patient, or by the manager of a jail of a  custody, where a man who has committed the offence is liable to the rigorous imprisonment for not less than 5 years which can extend up to 10 years and is incorporated under Section 376B of the IPC. This provision was made to restrict the sexual abuse to a woman by the doctor because “ doctor ” is a position which can easily influence the patient and the patient believes in them easily, thus, no questions can be raised against their acts to the patients, therefore, this provision limits the sexual abuse especially by the doctors. Also, after the Nirbhaya Case, 2012, some provisions were modified and some new provisions were added like earlier the punishment for rape was earlier 7 years of imprisonment but changed to 10 years, stalking was also made as an offence and imprisonment up to 3 years was made for the same under Section 354D of the IPC, the imprisonment for the offence of Gang rape was increased from not less than 10 years to not less than 20 years under Section 376D of the IPC. Also, earlier there were no provisions made for the unwelcome physical contact, words or gestures, demand or request for several favours, showing pornography against the will of a woman or making sexual remarks but now all these activities are recognized as an offence and laws are made under IPC.

Gang Rape

Section 376D of the IPC defines gang rape as the rape committed by one person or more than one constituting a group or acting in furtherance with the common intention and each of those persons shall be liable for the imprisonment for not less than twenty years which can be extended to imprisonment for life and they would also be liable for fine and the fine will be reasonable to the medical expenses of the victim and the rehabilitation of the victim. As stated above, earlier the punishment was for imprisonment for not less than ten years was there but was later changed after The Criminal Law Amendment, 2013 to imprisonment not less than twenty years.

 If we critically analyse this provision, we can see that no exception is given to a person who is below the age of eighteen years and would be prosecuted as an adult because earlier there was a loophole that if a man who is not the age of eighteen and involved in the rape were treated under the Juvenile Justice Act, 2000 and so was able to escape from the rigorous punishment but the court has realized later especially after the Nirbhaya Case where one man who was not of the age of eighteen was also involved, that, a man who is of the age of sixteen is still able to know the consequences of his actions and cannot the take the defence of a minor and thus will be treated as an adult. Further, some provisions were also made taking into consideration the age of the victim. As Section 376DA of the IPC states about the life imprisonment for the gang-rape committed to a woman who is below the age of sixteen years and would also be liable for the fine and Section 376DB of the IPC which stated for the imprisonment for life if the rape is committed to a woman under the age of twelve years of age, by both these sections, the age group of a woman from thirteen years to 16 years are prevented under IPC.  

Rape Causing Death or Resulting in Persistent Vegetative

The court has defined ‘Persistent Vegetative State’ as ‘a person who is alive but does not show any evidence of being aware of his environment is known to be in a position of ‘Persistent Vegetative State. This definition and the term was not under the IPC before 2013, but its need occurred after the Nirbhaya Case because in that case the victim after being raped was left in such a position that she was not in an aware state and was later died, thus, after several discussions, this provision was incorporated under Section 376A of the IPC under the Criminal Law Amendment, 2013 which states that when the offence is committed under Section 375 of the IPC and in the course of commission inflicts an injury which causes the death of a woman or causes the woman to be in a persistent vegetative state will be liable for the rigorous imprisonment of not less than twenty years which can be extended to imprisonment for life.

Repeat Offender

As incorporated in Section 376E of the IPC, whoever has been previously convicted of an offence punishable under Section 376 or Section 376A or 376AB, 376D, 376DA or 376DB shall be liable for imprisonment for life. But I think that the accused who has the courage to repeat the same offence means he has no fear of the law and he is ready even for imprisonment for life and therefore there should be the punishment of death penalty for the accused who has previously been convicted under these sections because by doing these crimes and even actually two times, he has destroyed the life of two girls and therefore he is not entitled to the second chance and again the imprisonment should not be given whether it is for even life.

Consensual Sexual Intercourse not amounting to Rape

As the term ‘Consensual Intercourse’ suggests, it means the sexual intercourse between a man and a woman with the consent of the woman. However, this statement seems to be simple that obviously sexual intercourse with the consent of a woman is not rape but the problem occurs in those cases where a man obtains the consent of a woman by making a promise that he will marry her but later refuse to do so. These cases are witnessed mostly in live-in relationship cases. Also, the Supreme Court have differentiated between the rape and consensual intercourse emphasising on the distinction between “breach of promise” and “false promise” as breach of promise means that at the time of the intercourse, the consent was obtained with the bonafide intention but later the circumstances were such that the man has later refused to marriage and therefore it does not amount to rape because that refusal could be due to the family pressure or other domestic problem and therefore that intercourse does not amount to rape whereas, for a false promise, the requirement is that there had to be the mala fide intention of a man and he had made the promise to marry for just obtaining the consent of a woman and therefore he will be liable for rape under Section 375 of the IPC. The court also said that it is not every time the man wants to engage in the intimate relations but there may be the cases where the woman agrees to engage herself in the intimate relations on the account of “her love and passion for the accused” and not based on the “misconception made by the accused”.One big concern regarding this situation is that the court says that if there has been consensual sexual intercourse has been done between a man and a woman by obtaining the consent of a woman to marry her and later refuses, then, he will be liable only if it is been proven that his intention was mala fide at that time, so, the burden of proof is on the woman to prove the bad intention of a man and it is very difficult to prove but on the other side, it is mandatory also otherwise, it will lead to the malicious proceedings by the woman. So, I think this law is gender-neutral and its application will depend on the facts and circumstances of each case.

Evidence of Prosecutrix

As written in the definition of rape, the word ‘penetration’ is mentioned which is itself sufficient to constitute rape and it does not exclude ‘partial penetration’. It has been strictly interpreted by the court in Nirbhaya Case, that even slight penetration will amount to rape. Other evidence can be the biological evidence which is obtained by the crime laboratories like semen, blood, vaginal secretions, vaginal cells, these can be identified. Also, tools like rape kits are very useful in determining the extent of penetration. DNA profiling method is also used to identify the accused. Motile sperm are also collected by the crime laboratories which is produced during the recent coitus to identify the accused and in these cases, the statement of the victim is considered as strong evidence and mainly the primarily evidence.

Disclosure of Identity of Rape Victims

Section 228-A of the IPC which was inserted after the Criminal Law Amendment Act, 1983 states about the disclosure of the identities of certain offences, in which it has been specifically written that whoever prints or publishes about the identity of the victims related to the offence mentioned in Section 376, 376A, 376B, 376C, 376D, 376DA, 376DB, 376E will be liable for imprisonment for either description of the term which may be extended up to two years and shall also be liable for the fine. It has also been mentioned in Section 23 of the POCSO (Prohibition of Children from Sexual Offences) Act, 2012 to imprisonment for two years if any person has revealed about the name, address, photograph, family details, schools, neighbourhood and similarly the restrictions are also made in Section 21 of the Juvenile Justice Act, 2000. The proposed idea behind this was to save the victim from the post offence atrocities of society which came in the form of ridicule and deterioration of marriage prospects. Rape and sexual assault victims were commonly targeted as one who was abetting the crime. Surrendering to the social stigma of victimization after the crime, the legislature came up with Section 228A prohibiting anyone from making the identity of a victim of such offence known. While it cannot be denied that the media houses and news reporting agencies are cautious about such law, still there have been instances where there have been willful or negligent breaches. But the irony and apathy about these provisions are there have been many instances where the judiciary whether the Supreme Court, the High Court or the Trial Court have rashly disclose the identity of the victims in several cases and these judgements were widely circulated by the websites, social media. However, the courts have conveniently ruled that provisions given under Section 228-A are not applicable to the judicial servant acting in a bonafide manner. 

The Hon’ble Supreme Court in the case of State of Karnataka vs Puttaraja has stated that in the cases related to sexual offences, the name of the victim will not be revealed by the courts but instead of name, they will be called as ‘victim’ in the case for the social object to prevent the social victimization of the sexual offence for which the Section 228-A was enacted. Also if we emphasis this section, it has been made as a non- compoundable offence to prevent the powerful media houses from purchasing the victim’s approval from money for selling the news. As these days, care should be taken on social media rather than to media houses because now the news spread very fast through Whatsapp, Facebook etc. and people share it in the bonafide intention and not to harm the reputation of the other but they are unaware about the consequences of their act, therefore, certain restrictions should be made by the Ministry of Information and Technology to prevent the sharing of the identities of the victim because reasonable restrictions can be imposed by the state to right to freedom of expression guaranteed under our Constitution.   

Unnatural Offences

Provision related to unnatural offences is incorporated under Section 377 of the IPC mentioning about imprisonment for life or of ten years against the one who is voluntarily doing carnal intercourse against nature with any man, woman or animal and shall also be liable for fine. This section came into existence in 1861 during the British rule where the term “against nature” included homosexual activities. Unnatural offences also include sterilization, sodomy, bestiality etc. This section has not made any classification between the married or unmarried woman because in marriage under Hindu Law(Hindu Marriage Act, 1954) also sodomy, bestiality or sterilization are the grounds for the annulment of the Hindu marriage. Also, the concept of bestiality revolves around the consent as how can you obtain the consent of an animal when they are not able to communicate, similarly ‘anal’ or ‘oral’ sex is equally unnaturally because both these two are out of the scope of the normal sexual intercourse and are physically harmful to both men and woman and are not the essential ingredients for a sexual intercourse.

Constitutional Validity of section 377

Section 377 was first challenged by an NGO, Naz Foundation and AIDS Bhedbhav Virodh Andolan in the Delhi High Court in 2001 as violative of the Article 14, Article 15 and Article 21 of the Indian Constitution on behalf of the Lesbians, Gay, Bisexual, Transgenders because no educational, constitutional rights were there for them, they were not treated like the ordinary man or woman and thus their conditions were worst. Then, by taking into consideration the conditions of the transgenders, in 2014, the Court has made the transgender quota and has categorized them into the Other Backward Castes(OBC). Later Supreme Court in the Right to Privacy judgement also called for equality and condemned discrimination, stating that the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine. In January 2018, a three-member bench of the SC heard the petition by filed by five people to review the judgement given in Naz Foundation Case and the SC have finally decriminalized homosexuality by declaring Section 377 of the Indian Penal Code as unconstitutional. The Apex Court unanimously ruled that individual autonomy, intimacy and identity are protected fundamental rights and scrapped the controversial Section 377 of IPC- a 158-year-old colonial law on consensual gay sex. The Supreme Court reversed its own decision and scrapped section 377 of IPC that criminalized homosexuality and opined that the application of Section 377 to consensual homosexual sex between adults was unconstitutional, irrational, indefensible and manifestly arbitrary. But Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality.

Proposals for Reform

The punishment given under the provision related to rape under IPC is for imprisonment for not less than ten years which can extend up to imprisonment for life. These are the following proposals which should be made regarding these offences-

• There should be the provision of the death penalty for the accused where the rape is of such extent that it has amounted to the death of the victim. Also, the accused which we witness in these cases, they are not different species but they exist between us only, therefore, changes are required in the minds of society rather than the law, like, there should be a strict ban on porn websites, adult entertainment because nowadays in the time of technology, these are accessible to everyone in the society and can be accessed by even the child who is not even a teenager, therefore, the Ministry of Information and Technology should take strict action about this problem.
• There should be some awareness programs in urban as well as rural areas where the children, especially girls should be made aware about the good touch and the bad touch, this will help to prevent the cases of child abuse. 
• There should be legal awareness programs primarily in the rural areas, about not to fear from filing a case, if the offence is related to rape, it has to make them understood, that now the crime has committed and the police, the judiciary will be able to help them if they wanted them to.
•  Another big concern is the speedy trial, it is to suggest that in the cases where there is constructive evidence like CCTV recording etc. where it is clearly seen the identity of the accused, then, those proceedings should be done quickly. 
• There should be the programs regarding the sex education to be organized in schools, so as to aware the students about these things because it is important to aware about the reproduction process, especially make them aware about the sodomy, bestiality or sterilization, about the contraceptives which make them aware about these private things.

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article is written by Kartikeya Kaul, a first-year student pursuing BA.LLB. from Symbiosis Law School, Noida. This is an exhaustive article dealing with the Protection of Minorities under Company Law.

Introduction

In a country like India, we can always see in the news about crimes regarding battery, assault, discharge etc, such crimes are very common in our country and happen almost every single day, one may argue that it happens hourly and because of this, people were facing a lot of problems, the government had to step in and so they made certain laws that ensured strict punishment to all those people who committed such crime and thus it reduced to number of such crimes in our country. 

Criminal Force 

When a person intentionally uses force on another person without that person’s consent, in order to commit an offence and with the prior intention of causing harm to that person in the form of injury, fear or annoyance to whom the force is used, is said to use criminal force on the other person. It comes under Section 350 of the Indian Penal Code.

Force

A person is said to be using “force” on another person when he causes a change in motion, cessation of motion or a substantial change in motion of another person, or brings a substance in contact with another person’s body or it affects another person’s sense of feeling. The term force in Section 349 is force used in connection with the human body. 

Consent

In criminal force, a person may use undue force on another person without the consent of that person so as to cause harm to him. If there is consent, it won’t be counted as criminal force.

Assault

When a gesture is made to any person, knowing that the person is going to apprehend it as the person is going to use criminal force on that person is known as assault. Mere words do not consist of an assault. But a person may use certain gestures and expressions or preparation, such gestures, expressions and preparations may amount to assault. For example:

• X shakes his fist at Y, intending or knowing that may cause to believe Y that X is about to strike Y. X has committed assault.
• X loosens the muzzle of a ferocious dog knowing that the dog will cause harm to Y. So, X has committed an assault upon Y.
• A takes up a stick, says to Z, “I am going to beat you up”. Here, although the words employed by A may in no case amount to a direct assault, and although the mere gesture, unaccompanied by the other circumstances, may not amount to an assault, the gesture explained by the words might amount to an assault.

Ingredients

Gesture or Preparation

When a gesture or preparation is made from one person to another person with the intention to use criminal force, it is said to commit assault. 

Cause Apprehension of Assault

Generally speaking, assault happens when someone causes harm to other person’s body which may be usually followed by battery, as this may include things like unlawful physical conduct, violence or unlawful sexual contact. Though, all threats are not considered assault. Also, to rise to the level of actionable offence, the plaintiff may file the suit:

• The act was intended to cause apprehension of harm or offensive contact;
• The act caused apprehension in the eyes of the victim that he would be harmed by the other person’s actions. 

Difference between Assault, Criminal Force and Hurt

When a person intentionally uses force on another person without that person’s consent, in order to commit an offence and with the prior intention of causing harm to that person in the form of injury, fear or annoyance to whom the force is used, is said to use criminal force on the other person. It comes under Section 350 of the Indian Penal Code whereas assault is when a gesture is made to any person, knowing that the person is going to apprehend it as the person is going to use criminal force on that person is known as assault and whoever causes bodily pain, disease or infirmity to another person is known as hurt. It is defined in Section 319 of the Indian Penal Code. 

Punishment for Assault or Criminal Force

When someone assaults or uses Criminal force another person based on sudden and grave provocation by another person, he may be sentenced to prison time of a term which may be extended for a term of three months or a fine of up to INR 500, or both. It is defined under Section 352 of the Indian Penal Code.

Aggravated Forms of Assault or Criminal Force

Aggravated forms of assault or use of criminal force includes aggravating elements that consist of the intention to outrage the modesty of a woman and he has the knowledge that will outrage his modesty. It comes under Section 354 of the Indian Penal Code.

Assault or Criminal Force to Deter Public Servant

Assault or criminal force on another person to discharge him from duty, this comes under Section 353 of the Indian Penal Code. Whoever assaults any public servant when he is in the course of his or her duty, or with the intent of deterring the person of his duty, the person shall be imprisoned for a term which may be extended for up to 2 years, or a fine, or both. 

Assault or Criminal Force to Woman to Outrage her Modesty

A person who assaults another woman, intending to outrage her and thus likely to outrage her modesty, shall be punishable under this act under Section 354 of the Indian Penal Code. It consists of assault or use of criminal force, mere knowledge is also sufficient without any deliberate intention.

Assault or Criminal Force with Intent to Disrobe a Woman

Any man who assaults or uses criminal force on another woman abets such act with the intention of disrobing or compelling her to be naked, shall be punished with the sentence of the term of 3 years minimum with the sentence also extending to seven years and also shall be liable to a fine. This comes under Section 354B of the Indian constitution. 

Assault with Intent to Dishonour a Person

Whoever assaults or uses criminal force on that person, hereby intending to dishonour that person, otherwise on grave and sudden provocation given by that person, shall be imprisoned for two years or be fined, or both. This comes under Section 355 under the Indian Penal code. 

Assault in Attempting Theft

Whoever assaults or uses criminal force to another person to commit to attempt theft on any person that he is wearing or he owns, shall be punished for a term which may extend to 2 years, or a fine, or both. This comes under Section 356 of the Indian Penal Code.

Assault in Attempting Wrongful Confinement

Any person who assaults or uses criminal force on another person with the intention to wrongfully confine another person, shall be imprisoned for a period of one year or be fined Rs. 1000 or both. This comes under Section 357 of the Indian Penal Code. 

Specific Acts Offending Decency of a Woman

There are specific acts which offend the modesty and decency of a woman. Whoever, intending to insult the modesty of any woman, utters any word, says something bad, makes any sound or gesture, such an action may be seen by the woman, and in order to protect her privacy, shall be punished with imprisonment for a term which may simply be for a year, or a fine, or with both. 

Sexual Harassment

A man committing any of the following acts: 

• Physical contact and advances involving unwelcome and specific sexual overtures. 
• A demand or request for sexual favours.
• Showing porno against the desire of a woman.
• Making sexually coloured remarks shall be guilty of the offence of sexual harassment.

Any man that commits the offence laid out in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be penalised with rigorous imprisonment for a term which can extend to 3 years, or with fine, or with both of these.

Any man that commits the offence laid out in clause (iv) of sub-section (1) shall be penalised with imprisonment of either description for a term which can be one year or with fine, or with both. This comes under Section 354A of the Indian Penal code. 

Voyeurism

Any man that watches, or captures the image of a lady participating in an exceedingly personal act in circumstances wherever she would typically have the expectation of not being discovered either by the culprit or by the other person at the dictation of the culprit or disseminates such image shall be penalized on initial conviction with imprisonment of either description for a term that shall not be but one year, however, it may add up to 3 years, and shall even be at risk of a fine, and be penalized on a second or subsequent conviction, with imprisonment of either description for a term which shall not be but 3 years, however, which can add up to seven years, and shall be liable to fine. 

Explanation: For the aim of this section, “private act” includes an act of observation allotted in a place that, within the circumstances, would fairly be expected to produce privacy and where the victim’s private parts, posterior or breasts are exposed or covered solely in underwear; or the victim is employing a lavatory, or the victim is doing a sexual act that is not of a form unremarkably done in public.

Where the victim consents to the capture of the pictures or any act, however not to their dissemination to third persons and wherever such image or act is disseminated, such dissemination shall be thought of an offence under this section. This comes under Section 354C of the Indian Penal Code. 

Stalking

In the groundswell of support for exploited women, the one common experience most girls have undergone has been that of stalking. Before the advent of the internet age, the offence was not even recognized in the statute. Social media platforms like Facebook, Twitter, etc. have given stalkers a replacement weapon to victimize girls and harass them online. The recognition of stalking as an offence was a slow and gradual method that finally got introduced within the statute once the 2013 criminal law amendment. The Indian Penal Code, 1860, being a colonial law, did not contemplate stalking as an offence at all.

The only protection to girls was under Section 354 for harassment and Section 509 of IPC for victimization words or gestures to insult the modesty of a lady. Under Section 354 of the IPC, whoever assaults a woman knowing that it would outrage her modesty is liable to be punished under the law. The essence of a woman’s modesty is her sex.

The ultimate check to be seen if the lady’s modesty is incensed is to examine if the act or assault would be enough to stun the sense of decency of a woman. The law makes it punishable providing 3 ingredients are met- i.e, the assault should be on a lady, the suspect should have used criminal force and that it should outrage her modesty. This comes under Section 354D of the Indian Penal Code. 

Conclusion

Assault is basically the apprehension that the other person is going to get hurt. It is done to another person with the use of criminal force with the ill will to harm the other person. People face a lot of problems because of this, especially women. So, it was inevitable that strict laws regarding Assault and Criminal force had to be put in place and be implemented properly so that every person is protected by the law. Any person who assaults any other person by using criminal force, he may be punished or fined, or both, according to the Indian Penal Code. 

References 

• http://devgan.in/ipc/chapter_16.php#s351
• http://vikaspedia.in/social-welfare/social-awareness/legal-awareness/law-on-outraging-modesty-sexual-harassment-and-stalking-of-women
• https://indiankanoon.org/doc/1569253/
• https://barandbench.com/me-too-law-protects-you-stalking/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article is written by Vineet Kumar S, pursuing a Diploma in Entrepreneurship Administration and Business Laws from LawSikho.com. Here he discusses “Export Licensing and Schemes for Defence Export”.

Background

Historically, defence exports were never the focus area of ​​Indian governments in the past. By 1991, Indian defence exports were almost negligible. After the liberalization of the economy, a slight increase in defence exports was seen in the year 2001 with the 40th rank among 86 arms exporting countries of the world according to SIPRI data. From 2001 to 2011, India did not make any significant progress in the field of defence exports. In 2011, India was ranked 37th among the 74 exporting countries, accounting for 0.01 percent of the total global arms trade. However, with the announcement of the strategy for defence exports and streamlining SOP for grant of NOCs for exports, there has been a slow but steady improvement in India’s global ranking in relation to defence exports. The period from 2014 to 2018 was witnessed with significant progress in Indian defence exports.

Need for Enhancing Defence Export

Self-reliance and indigenization in defence is important for both strategic and economic reasons and, therefore, has been an important guiding principle for the government. Although India has made rapid progress in defence technology and industrial base in recent times, it still remains to cover an important base in terms of the scale of development and production of new products. The domestic defence industry will have limited scope for investment in research, development and production if it depends only on domestic demand.

There is a need to boost investment in defence sector both in R&D and production, thereby resulting in high self-reliance and indigenization. A policy of maximizing indigenous production without a well-supported R&D policy and export strategy may not bring the desired results. Therefore, the defence industrial policy should be supplemented by a strategy for defence exports without which the economic base of the defence industry would be difficult to sustain in the present economic competitive environment.

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Defence exports are a testament to the country’s technological prowess and the proficiency of its industry. They are also valuable foreign exchange earners and major tools of geopolitical engagement. These are some of the drivers that propel India from a majority importer of defence equipment to a self-sufficient net exporter.

International Regulatory Framework

All countries are required to maintain export control in accordance with UNSC Resolution-1540. Exports of defence products are characterized by multilateral export control regimes, which are ‘The Nuclear Suppliers Group’, ‘The Wassenaar Arrangement’, ‘The Australia Group’ and ‘The Missile Technology Control Regime (MTCR)’. India is also a signatory to international conventions on nuclear non-proliferation, the Chemical Weapons Convention (CWC) and the Biological and Toxic Weapons Convention (BWC).

To gain access to advanced technology products, India is trying to gain membership of these international control regimes. India joined the Missile Technology Control Regime (MTCR) and became the 35th member on 27 June 2016. India joined the Wassenaar Arrangement and became the 42nd participating state on 08 December 2017. Further, in January 2018, India was admitted as the 43rd member to Australia Group through consensus decision. Therefore, India is currently a member of three of the four major multilateral export control regimes.

Domestic Regulatory Framework

1.  The Foreign Trade (Development and Regulation) Act, 1992 (FTDRA) forms the basis for India’s export trade regime, including the defence industry. It empowers the government to regulate, restrict, prohibit all or specified classes of exports / imports. The government prepares the Foreign Trade Policy (FTP) and the FTP Handbook to lay down the procedures under this Act. The administration of FTDRA and FTP is the responsibility of the Directorate General of Foreign Trade (“DGFT”). DGFT periodically provides a list of goods and services that may or may not be exported and or imported, as the case may be.
2. The Weapons of Mass Destruction and Their Delivery Systems (Prohibition of Unlawful Activities) Act, 2005 (“WMD Act”) authorizes the government to regulate the export, re-transfer, re-export, transit, transhipment of any goods related to or linked to the development, manufacture, operation, storage, etc. of weapons of mass destruction. The WMD Act is to be read with FTDRA appreciating India’s policy framework regarding conventional weapons. No person or entity can do any export if they are aware that the transaction is related to prohibited activity including development, storage, transmission, etc. of WMDs.
3. SCOMET: Potential dual-use items for both civilian applications as well as weapons of mass destruction are classified as “Special Chemicals, Organisms, Materials, Equipment and Technology (SCOMET)” items. SCOMET items are listed under nine (9) categories. Each category has a complete list of items that fall under that category. Special conditions applicable to goods under different categories are mentioned there-under. In addition, the SCOMET list is periodically updated and revised and aligned to reflect India’s commitments to multilateral export control regimes and conventions.

The Directorate General Foreign Trade (DGFT) laid down policy and procedure for regulating the export of such controlled items for the items listed in categories 1 to 5 and 8 of the SCOMET list included in Appendix 3 to Schedule 2 of the ITC (HS) classification of Export and import items, which is available on DGFT’s website. The relevant documents regulating export of SCOMET items are as under: 

• Foreign Trade Policy 2015-20 ( Para 1.03, 2.09, 2.16 to 2.19)
• Handbook of Procedures 2015-20 ( Para 2.73 to 2.82)
• Appendix 3 of Schedule 2 of ITC (HS) Classification (Revised as on 03.07.2018)

4. No Objection Certificate (NOC) for defence export: DGFT Vide Notification No. 5 / 2015-2020, dated 24 April 2017 notified the Munitions List in Category 6 of Special Chemicals, Organisms, Materials, Equipment and Technology (SCOMET). The export of goods referred in category 6 of SCOMET (Munitions List), (excluding those covered under notes 2 and 3 of CIN note of SCOMET and items in categories 6A007 and 6A008 of SCOMET) are governed by the extant Standard Operating Procedure (SOP) issued by the Department of Defence Production (DDP)  vide No. 1 (4) / 2016-D (EPC) dated November 1, 2018. Unless prohibited, export of munitions list items are permitted against authorization issued by DDP. Detailed procedures are provided in SOP for various processes such as actual exports, exports for testing and evaluation purposes, participation in tenders/exhibitions, exploring business opportunities abroad and transfer of technology/software. NOC issued by DDP is equivalent / same as export license for the purpose and validity specified in it.

MHA vide Notification No. V11026/164/2018-Arms dated 01/11/2018 has delegated its powers & functions exercised performed by it under Section 10 of the Arms Act 1959 to Department of Defence Production for export of Arms & Ammunition specified in Schedule I of the Arms Rule 2016. 

Government Initiatives and Support

Ministry of Commerce & Industry already has an overall Export Policy in the form of Foreign Trade Policy (FTP), which, inter-alia, includes various export promotion schemes, duty/ tax exemptions and other facilitative measures.  Therefore, there is no separate Defence Export Policy; accordingly, government has taken certain initiatives and schemes for encouraging defence exports within the overall ambit of FTP. The main initiatives are as follows:

• Export Promotion cell under DDP, MoD has been formed to co-ordinate and follow-up on export related action including enquiries received from various countries and facilitate private sector and public sector companies for export promotion. 
• An Export Steering Committee has also been formed under the chairmanship of Secretary, Department of Defence Production. The committee will also have representatives from the Armed Forces, DRDO, Ministry of External Affairs and DGFT. The functions of this committee include consideration and decision on matters of export permission (which are outside the purview or scope of subordinate officers/committees), especially the export of indigenously developed sensitive defence equipment, monitor the progress in defence exports and suggest specific steps/strategies to promote exports.
• Incentives and government support through trade missions, diplomatic support, financial and fiscal incentives such as ease of obtaining credit, line of credit, etc.
• The Offset Policy is being reviewed and aligned towards final integration of weapons /systems in India and promoting export of such systems from India.
• A certification scheme for prospective defence exporters launched to improve marketability of their products globally under which DGQA, DGAQA, DGQA (N) and other agencies notified by the DDP/ Government will issue a certificate to exporter for their product as ‘Fit for Indian Military use’ after due trial and evaluations.
• Scheme for promotion of MSMEs in defence has been launched to unlock the potential of the non-defence sector MSMEs located in Tier II and Tier III cities across India by providing them with relevant information about the Government of India’s ‘Make in India’ programme in defence. One of the objectives of this scheme is to give a new impetus to the development of defence production in the country both for its domestic needs and also for exporting to friendly countries, by involving the MSMEs in larger numbers.

Conclusion

The Defence Ministry has set an ambitious export target of Rs 35000 crore by 2025. This is achievable, but it will require foresight, policy making and business environment support to the right areas and direction. It is difficult to create a niche for India in this highly competitive industry. Success in this sector is about getting many interlinked factors right, which is not easy, but is possible through learning from case studies, best practices and examples that can be adopted or rejected. The government has to streamline processes, build dedicated institutions, train and re-train its diplomatic assets and adopt concerted and pragmatic go-to-market strategies keeping in view the strengths and weaknesses of Indian industry and global opportunities. More attention should be given to market research, the country’s defence acquisition process, business culture and the role of geopolitical scenarios to formulate successful strategies for defence exports.

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This article is written by Shivangi Tiwari, a second-year student pursuing B.A.LL.B. from Hidayatullah National Law University, Raipur. This is an exhaustive article dealing with Appearance and Non- Appearance of parties.

Introduction

Appearance and non-appearance of the parties in a civil suit is the important factor upon which the fate of any case depends. A mere non-appearance of a party in front of the court on a determined day may result in an adverse decision with respect to the non-appearing party. The general provisions contained in the Civil Procedure Code of 1908 is based on the principle that no proceedings which are detrimental to the interest of any of the parties to the suit shall be conducted in the court of law. It is the duty of the parties to the suit to show up before the court of law on a due date which has been fixed by the court. In case of non-appearance of any of the parties to the suit, the judgement of the court may turn in favour of the party appearing in front of the court. However, in situations where a suit is determined irrespective of the fact that any of the parties to the suit are absent on the due date. Then, the non-appearing party in order to safeguard its interest can revive the suit by following the provisions of Civil Procedure Code, 1908.

The provisions with respect to the consequences in case of non-appearance of parties and other related provisions are contained in the Order IX of Civil Procedure Code, 1908. The rules regarding the consequences of appearance and non-appearance of parties to the suit under the Order IX of CPC are as follows:

• Rule 2– the consequences of non-deposition of fees by the plaintiff.
• Rule 3 and Rule 4–  the consequences of non-appearance of both the parties to the suit.
• Rule 8, Rule 9 and Rule 9(A)– consequences of non-appearance of the plaintiff to the court of law.
• Rule 6, Rule 13 and Rule 13(A)– provisions with respect to non-appearance of the defendant to the court of law. 

Appearance of parties

The word “appearance” under civil cases has a well-known meaning. It means the appearance of the party to the suit before a court of law. The appearance can be by the party in person or through his advocate or through any person along with the advocate of the party.

The mere presence of the party before the court of law is not what the word “Appearance”  under the Order IX of the CPC,1908 means. But the word “appearance” under CPC means the appearance made by the pleader who is able to answer all the material questions which are relevant to the judicial proceedings in question before the court of law in a duly prescribed and recognized manner and on the date allotted by the court to each party unless the court has adjourned the proceedings of the case to some other day.

Rule 1 of Order IX is related to the appearance of the parties on the date of first hearing of the case. It declares the mandatory presence of the parties before the court of law on the day fixed by the court under the summon issued on the defendant.

According to Rule 2 of the Order IX, the failure on the part of the plaintiff to submit any processing fee determined by the court of law on any stipulated date. Then such a failure would result in the dismissal of the suit by the court. However, no such dismissal to the case can be made where the defendant in person or through his agent attend the proceedings of the court and answers all the material questions possessed by the court.

Where neither party appears

Rule 3 and Rule 4 of Order IX of Civil Procedure Code, 1908 deals with the cases where neither of the parties in a case appears before the court of law on the date fixed by the court of law. According to Rule 3 of the Order IX of CPC. In such a case, the suit shall be dismissed by the court and according to Rule 4, the plaintiff can file a new suit in the court of law if he is able to satisfy the court that there was a sufficient cause for his non-appearance in court.

In Damu Diga v. Vakrya Nathu, the plaintiff sued the defendants, D1 and D2. on the date fixed by the court for appearance of the parties to the suit only D2 appeared in the court. The subordinate court erred while passing the order of dismissal of the case. However in an appeal against the decision of the court. It was held that the present case comes under the purview of Rule 4 of Order IX of CPC and court should take into consideration the fact that not only the plaintiff in the case was absent from the proceedings. But, defendant number 1 was also absent and the according to Rule 4, the court must allow the plaintiff to apply for an order setting aside the dismissal of the case by the court.

Where only the defendant appears

Rule 8 of the Order IX of the CPC talks about the legal consequences of the non-appearance of the plaintiff and the appearance of the defendant in the court of law. According to the rule, in a case where the defendant makes an appearance in the court of law on the due date and the plaintiff remains absent from the proceedings. The court shall make an order of dismissal of the case unless the defendant admits a claim or parts thereof as in such a case the court can pass a decree against the defendant upon such admission or where only the part of the claim is admitted. If the case of the plaintiff has been dismissed by the court under Order IX of the CPC then the plaintiff has two options to revive his case in the court of law. Which are as follows:

• The plaintiff can file a fresh suit in the court of law if the same has not been barred by any law in force; or
• The plaintiff can file a petition under Rule 4 of Order IX of Civil Procedure Code, 1908. According to Rule 4 of the Order where a case has been dismissed in pursuance of Rule 2 or Rule 3 of the Order IX then the plaintiff can apply for an order for the dismissal of the case by the court.

In the case of The Secretary, Department of Horticulture, Chandigarh and Anr. Vs. Raghu Raj, the court held that the plaintiff should not suffer because of the non-appearance of the counsel appointed by him with good faith that he will make an appearance without any reasonable cause in the court of law whenever the plaintiff is called for in the court. As such non-appearance by the counsel representing the plaintiff without any reasonable cause is not only unprofessional and unfair to the plaintiff but is also unfair and discourteous towards the court of law. And so the plaintiff should not suffer because of the fault of the counsel he has hired in good faith.

Where a summons is not served

Rule 6 of Order IX, when the plaintiff is present but the defendant is absent on the date of peremptory hearing on a prescribed date. According to Rule 6 of Order IX, when the plaintiff is present but the defendant is absent on the date of peremptory hearing on a prescribed date of hearing then the court takes the decision about the consequence of such non-appearance with respect to the status of summon which is served to the parties in the case by the court of law. Following are the consequences of non-appearance of the defendant and the appearance of the plaintiff with respect to varying statuses of the summon which is served: 

• In the case where the summon is duly served the court can declare that the suit shall be heard ex-parte;
• In the case where the summon is not duly served then, the court can order the issue of a second summon and that the same to be served to the defendant;
• When the summon is served to the defendant but the sufficient time was not given to him to make an appearance in the court of law and answer the material questions in the case on the day fixed by the court. The court shall postpone and fix the hearing of the case to some other day which shall be notified to the defendant;
• When in a case the delay in issuance to the defendant is caused due to the fault of the plaintiff, the court may order the plaintiff to pay the costs occasioned by the delay in the proceedings.

Ex parte decree

Rule 6(1)(a) of Order IX of the Civil Procedure Code empowers the court to pass any judgement ex parte in case the defendant party in a case absents himself from the proceedings on the due date fixed by the court of law which has been informed to him by the summon duly served on him of the case. An Ex parte decree is neither void nor inoperative but it is voidable at the option of one party which may seek the order of annulment of the decree.

Remedies

The Code provides the following remedies to the defendant against whom an ex parte decree by the court has been passed:

• An application under Order IX, Rule 13 of the Code;
• Annulment of the decree under Section 12 of the Code by proving that the decree has been obtained on the ground of any of the vitiating factors like a fraud;
• Filing of a review petition under Section 114 of the Code;
• Filing the application for rehearing of the case on the grounds of violation of the principles of natural justice;
• Filing of an appeal under Section 96 of the Code.

Setting aside ex parte decree

Rule 13 of order 9 of the Civil Procedure Code contains provisions related to Setting aside of the Ex parte decree passed by the court. The Rule specifies that the defendant against whom the ex parte decree has been issued can apply for setting it aside. In case there are more than two defendants any one or more than one defendant can apply for setting it aside. 

The court in the case of Santosh Chopra V. Teja Singh held that the meaning of the expression “defendant” under the Rule is wide enough to include a person who is adversely affected by the ex parte decree and therefore, even a purchaser of mortgaged property can make an appeal of setting aside an ex parte decree.

An application for setting aside the ex parte decree can be filed in front of the court which has passed such an order. However, in a case where the ex parte decree has been affirmed by any superior court then the appeal for setting aside the decree can be made in that superior court. The following are the grounds for applying for the order of setting aside decree against the ex parte judgement of the court:

• The defendant has to prove in front of the court of law that the summon was not duly served on him: Rule 6 of order 9 mandates that an ex parte order against the defendant can be passed by the court if the plaintiff is able to prove in the court of law that the defendant has absented himself from the proceedings of the court even when the summon was duly served on him.
• The defendant has to prove in front of the court that there was a sufficient cause which prevented him from appearing in the proceedings on the due date: The term “sufficient cause” is nowhere defined under the code and therefore, the meaning of the term ‘sufficient cause’ has to be determined by the courts liberally keeping in view the facts and circumstances of the case. No party should be condemned unheard unless there has been something equivalent to misconduct or gross negligence on his part.

Appeal

Section 96 to 112 of Part VII of the Civil Procedure Code, 1908 deals with an appeal. Appeal means the removal of a cause from a subordinate court to a superior court in order to test the soundness of the decisions passed by the inferior court. It is the continuation of original proceedings before the superior court which is approached. The superior court need not always be high court as it can even be a subordinate district court. Following people can file an appeal against any order in the court of law:

• Party to the suit who has been adversely affected by the orders of the case;
• An auction purchaser in the exercise of a decree in order to annul the purchase on the grounds that he was defrauded or so on;
• Any person who is bound by any decree which operates res judicata against him and the person has been allowed by the appellate court to file an appeal.

The right of appeal empowers the superior court to rehear the whole dispute unless it has been expressly prohibited under any of the statutes. The superior court is not bound by the ratio decidendi of the subordinate court based on which the judgement was passed by the court. According to Section 96 of the Civil Procedure Code, an appeal can lie against all the decrees passed in exercise of civil jurisdiction exercised by the court. However, this Section is not applicable to the following decrees:

• Consent decree,
• The decree passed by the court under Section 9 of the Specific Relief Act,
• A final decree passed by the court, the preliminary decree of which was not challenged.

Revision

The dictionary meaning of the word revise is to examine something again in order to improve its present state. Revision is the act of revising anything. Section 115 confers the revisional jurisdiction to the High courts in the country. Under the revisional jurisdiction, the High Courts can entertain any revisional petition filed by any party which is aggrieved by any judgement, order or decree passed by any subordinate court in the country. The limitation period for filing any revisional petition against any order, decree or judgment is 90 days from the passage of such an order, decree or judgement. The main objective behind the incorporation of the provision of revision petition against the order of the subordinate court is to prevent them from acting arbitrarily, capriciously, and unlawfully by ensuring the check on their actions by the High courts. The following conditions are required to be satisfied before the exercise of the revision jurisdiction of the courts can be made by the High Courts:

1. The judgement of the case must be passed by a court of competent jurisdiction;
2. The court which has decided the case must be subordinate to the High Court;
3. The order which is passed by the court must be the one against which an appeal can be made;
4. The court passing the judgement must have exceeded the jurisdiction vested upon him, or has failed to exercise the jurisdiction vested on it.

Review

The literal meaning of the review is to study or examine something again. In the legal sense, the meaning of review is to examine the facts and judgment of any case again. The power of review of facts and judgments are vested only on the courts. The provisions with respect to review are contained in Section 115 of the Civil Procedure Code. There are no specific conditions or limitations specifically provided for review. Under Section 115 of the Civil Procedure Code. However, order 47 of the Civil Procedure Code provides for the limitations and conditions with respect to the review of the cases. The Supreme Court Rules, 1966, provides that the limitation period for filing a review petition against any decision passed by the court is 30 days from the date of passage of such an order.

The grounds for review of judgement are as follows:

• When the applicant discovers a new evidence material to the determination of judgment of the case which due to negligence or any other reason was not able to present the evidence in front of the court of law when it passed the decree;
• The order of review is passed only in such cases where the error is in the face of records and not with respect to the facts of the case. What constitutes the face of records has to be determined by the courts on a case to case basis keeping in view the facts and circumstances of the case;
• Any misconception on the part of the court may be regarded as a sufficient cause to review the judgement.

Suit

The word review has not been defined under the provisions of the Civil Procedure Code but by the various judgements passed by a court of law, the meaning of the term suit ordinarily means the civil proceedings initiated by the means of the institution of plaint. The decree is the outcome of a suit as without suit there can not be any decree issued. There are four essentials of a suit. Which are as follows:

• Name of parties: In any suit, there have to be two parties contending different claims. One is the defendant and the other is the plaintiff party. There is no limitation on the number of people representing either of the parties.
• Cause of action: Cause of action is the set of facts and circumstances which a plaintiff has to prove. Any person becomes a party to the suit when the cause of actions are proved against him. Cause of action is basically the set of those events, acts and circumstances which results in the institution of civil proceedings in the court of law. Every plaint must essentially disclose the cause of action and if a plaint fails to disclose the same then the court shall reject such a plaint.
• The subject matter of the case: There must be an express declaration of the subject matter of the case which basically is the reason for the filing of the plaint and thus, bringing the matter in front of the case. Section 9 of the Civil Procedure Code empowers the court to try all the cases unless they are expressly or impliedly barred from being tried by the statutes.

• Relief: Relief is the compensation or damages which are paid to the plaintiff by the defendant on the express orders of the court to do so. The courts are not obliged to provide relief to the plaintiff unless he has expressly asked for it. Reliefs are of two types which are alternative relief and specific relief.

Conclusion

The concept of appearance and non-appearance of the parties in the civil suit is the basic concept on which the ultimate fate of each and every case depends upon. On one hand, the courts are free to dismiss any case in the case of non-appearance of any party to the suit which is also the need of the hour keeping in view a large number of cases which are pending in the courts. But at the same time, the courts are bound to continue the proceedings even in the cases where the non-appearance of any party is due to any special circumstances established by such a party. This is important in order to uphold the ultimate objective of every judicial system which is the welfare and creation of an egalitarian society.

References

• Damu Diga v. Vakrya Nathu,(1920) 22 BOMLR 328
• The Secretary, Department of Horticulture, Chandigarh and Anr. Vs. Raghu Raj, Civil Appeal No. 41 of 1979
• Santosh Chopra V. Teja Singh, AIR 1977 Del
• https://www.shoneekapoor.com/difference-between-review-revision-and-appeal-in-civil-cases/
• https://lawtimesjournal.in/meaning-and-essentials-of-suits/
• https://lawtimesjournal.in/ex-parte-decree-remedies/
• http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_8277IN11.PDF
• https://blog.ipleaders.in/review-judgement-cpc/
• http://legalviewsofsourav.blogspot.com/2014/05/consequences-of-appearance-non.html

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article is written by Shreya Kalyani, pursuing a Diploma in Companies Act, Corporate Governance and SEBI Regulations from LawSikho.com. Here she discusses “IFSC Companies and Benefits Available to Them”.

Introduction

IFSC companies are incorporated in the country itself but operate for the jurisdiction which is outside the original jurisdiction of the company. IFSC companies are approved by the Central Government under section 18(1) of the SEZ Act, 2005. It is an unlisted company and operates in Special Economic zones, provided there can be only one IFSC in a Special Economic Zone. It basically, serves to people outside the domestic economic jurisdiction of the country to expand the zone of world class services to residents as well as non- residents. It acts as a facilitation centre, for boosting of export services.

They provide services which include raising of funds for individuals, government and corporations; Global tax management and cross border tax liability optimization; Risk management operations such as insurance; Merger and Acquisition among transnational companies etc. 

Earlier, around 2007 it was suggested on making Mumbai as an IFSC Centre. However, the global financial crisis in 2008 forced India to dismiss the plan. Then in 2015 GIFT City had been introduced through the Union Budget of 2015 aiming to make it as global financial hub. 

Now the question comes to mind is what kind of entities can set up offices in IFSC? All the entities which are regulated by RBI or SEBI or IRDA are eligible to set up offices in that area, such as Banks, Insurance companies, Brokerage Firms, Investment Advisors, Transfer Agency services etc. 

How do companies at IFSC work?

IFSC operates as a foreign territory governed by Indian Laws. It allows companies incorporated outside India to raise money in foreign currencies by listing their shares on stock exchange of IFSC, where an individual or institutional investors from India abroad including NRIs would be allowed to trade. Mutual Funds and alternative investment funds set up in an IFSC can also invest in securities listed here. GIFT City has two zones: domestic and special zones. All rupee denominated transactions can be undertaken from the GIFT domestic area. Special economic zone is an area located within the country’s national borders, in which the business and trade laws are different from the rest of the country. It is established mainly for increasing trade balance, increasing investment and job creation. Any intermediary operating within IFSC shall provide financial services to a person non-resident in India, non-resident Indian, a person or financial institution who is eligible under FEMA to invest funds offshore. Even mutual funds and Alternative investment funds in IFSC can invest in securities listed in IFSC.

Why has the IFSCs been introduced? 

The aim behind setting up of IFSC is to create a world class smart city that provides global financial services. Currently, these services are being rendered by Indian Corporate Entities or financial institutions from other overseas branches and financial centres. IFSCs provide services across borders. India’s first IFSC is GIFT City in Gujrat as part of a Special Economic Zone. GIFT city project is implemented by GIFT City Co. Ltd., a 50:50 joint venture between Infrastructure Leasing and Financial Services Ltd. and Gujrat Urban Development Company Ltd. The smart city GIFT in Gujrat, which is the first IFSC of India has attracted many real estate developers which have also signed MoUs to set up hospitals, hotels, residential and commercial complexes. 

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How is it regulated? Does company law regulate it in any way?

Companies Act, 2013 is applicable on all private and public companies of IFSC. The issuer of securities within IFSC are required to prepare a statement of accounts in accordance with Companies Act, 2013. However, government has relaxed certain provisions of the Act and compliance with other Regulations to facilitate the participation of entities in IFSC. Since it is related to financial services, at present three regulatory bodies i.e. Reserve Bank of India, Securities Exchange Board of India and Insurance Regulatory Authority of India. 

Budget 2019 has proposed many amendments for IFSC that will facilitate the regulatory framework and improve the ease of doing business. International Financial Services Centre Authority Bill, 2019 The dynamic nature of business in the IFSCs makes it important to have a high degree of inter-regulatory coordination. This Bill aims to bring a unified authority for regulating all financial services in the IFSCs.

Benefits available to them to boost their coming:

There are certain benefits available to private and public companies set up in IFSC such as:

1. Securities Transaction Tax is a tax which is levied at the time of purchase and sale of shares, units or equity oriented funds and all other securities listed on stock exchange in India. However, there is an exemption from security transaction tax liveable on securities transactions entered into by non- residents through IFSC.
2. There are other taxes and custom duties from which the companies of IFSC are exempted such as: Custom Duty, Excise Duty, Central Sales Tax, Service Tax, Commodity Transaction Tax, Long Term Capital Gain Tax, Dividend Distribution Tax, VAT and Stamp Duty.
3. The government has also exempted from the charge of Global Depository Receipts that are made by non-residents on recognised stock exchanges of IFSC.
4. Under Companies Act, every company having net worth of Rs.500 crore, or turnover of Rs.1000 crore, or net profit of Rs.5 crore rupees shall contribute something as their corporate social responsibility. However, companies under IFSC are exempted from Corporate Social Responsibility norms for 5 years. 
5. Exemption from the requirement of taking approval from NCLT for following a different financial year than April- March. Not even in a case where a company under IFSC is a subsidiary of a foreign company.
6. SEBI has relaxed shareholding and net worth requirements for intermediaries setting up their subsidiaries in IFSC.
7. As per Budget 2016, MAT rate is 9% where for other companies it is 18.5%
8. Time given to IFSC for filing of resolutions and agreements with ROC is of 60 days while for other companies it is 30 days under the Companies Act, 2013. Therefore there is relaxation in filing their documents.
9. Under the Act, for all the companies only an officer of the company can authenticate documents and other contracts. However, for IFSC companies any person other than officer, provided he is authorised by the company, can authenticate documents and contracts.
10. IFSC companies are allowed to make private placement offers without being restricted by earlier incomplete or withdrawn offers,
11. IFSC companies do not need to comply with the secretarial standards prescribed by ICSI. For instance, they may or may not include their annual return in the Board’s report.
12. IFSC companies need only Internal audit, provided their Article of Association permits so. Such companies are also allowed to make investments through more than 2 investment companies.
13. They are exempted from the payment of Dividend Distribution Tax on dividends declared.
14. Under the Income Tax Act, tax holidays have been extended for IFSC units to 100% of business profits for 10 consecutive years out of period of 15 years.
15. After the Budget of 2019, it is also proposed to exempt the interest income earned by non-residents in respect of money borrowed by any IFSC units after September 1, 2019.
16. Mutual funds located in IFSC are exempt from the tax that is chargeable under section 115R of Income Tax Act, on any distribution of income derived from transactions made on stock exchange in IFSC.

Benefits available under the SEBI Regulations for issue of securities:

1. Eligibility and shareholding limit for stock exchanges, clearing corporations and depositories, which are desirous of providing services in IFSC, has been relaxed to the requirement of having at least 51% of their paid up equity share capital with them and rest may be held by other stock exchanges.
2. Net worth requirements for stock exchanges, clearing corporations and depositories, which are desirous of providing services in IFSC, have been relaxed. It is 25 crores for stock exchange and depository while for a clearing corporation it is 50 crores.
3. The provisions of Securities Contracts (Stock Exchange and Clearing Corporations) Regulation, 2012; Securities    and Exchange Board of India (Depositories and Participants) Regulations, 1996 are not applicable to the stock exchange operating in IFSC.5
4. Depository receipts, debt securities and equity shares can be issued by both domestic and foreign companies. In addition to the Indian residents, there are Non- resident Indian, foreign individual and institutional investors who are eligible to participate in IFSC.

How is it different from a normal company?

• IFSC companies can be set up only when it is limited by shares.
•  Every company shall have ‘IFSC’ as suffix in its name. 
• Object clause of IFSC shall and must mention that “they will carry out the objects as required and mentioned in SEZ activities and in compliance with SEZ Rules”.
• A registered office of an IFSC company must be located in a Special Economic Zone.

Conclusion 

IFSC companies are playing the crucial role of bringing offshore financial transactions to the Indian Territory. Primary aim was to bring back the financial services and transactions that were being carried out in offshore financial centres by the Indian corporate entities. Currently, the financial sector institutions such as banks, insurance companies, stock exchanges, mutual funds, alternative investment funds and other SEBI registered institutions are permitted to be set up at IFSC. With the help of such fiscal incentives; support by SEBI, IRDA, benefits and exemptions provided by different regulations, IFSC are being provided with the needed impetus to become a success in India. RBI has opened up opportunities for all Indian and Foreign banks having operations in India to set up units in IFSC. IFSC provides Indian Companies easier access to global financial markets and also opens the door for employment in the financial sector.

Endnotes

1. https://www.thehindu.com/business/Economy/indias-first-ifsc-becomes-operational/article7089835.ece
2. https://economictimes.indiatimes.com/markets/stocks/news/monetary-policy-cant-solve-structural-problems-it-can-only-address-cyclical-shocks-viral-acharya/articleshow/72182142.cms?utm_source=ETMyNews&utm_medium=ASMN&utm_campaign=AL1&utm_content=10
3. https://economictimes.indiatimes.com/markets/stocks/news/gift-international-financial-services-centre/articleshow/69642735.cms?from=mdr
4. https://www.india.com/business/sitharaman-to-introduce-taxation-laws-amendment-bill-ifsc-authority-bill-in-lok-sabha-3855669/
5. SEBI (International Financial Services Centre) Guidelines, 2015.

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This article is written by Nishtha Pandey (batch 2023), student of Dr. Ram Manohar Lohiya National Law University, Lucknow. This article deals with various aspects of the appeals made to the Supreme Court. Special focus is laid on the provisions present in the Civil Procedural Code, 1908 and the Indian Constitution,1950.

Introduction

Supreme Court is the apex court in the country. Being at the top of the pedestal it enjoys varied jurisdiction:

• Original jurisdiction- Acts as a guardian of the law.
• Appellate jurisdiction- Hear appeals from the lower court. It is also the final court for appeals in the country.
• Writ jurisdiction- Issuing writs for the enforcement of Fundamental Rights.
• Advisory jurisdiction- Supreme Court has the power to give advice to the president on the important questions of law.

Supreme Court is the highest court of appeal in India. Appeals from every court present in the country ultimately go to the Supreme Court, if not settled at the lower courts. The appellate jurisdiction of the Supreme Court is enshrined in Article 132 and 133 of the Indian Constitution,1950  and Section 109 and 112 of the Civil Procedural Code, 1908.

Meaning

The appellate jurisdiction is one of the most important jurisdictions exercised by the courts in the country. This jurisdiction enables a person to approach the higher court in case he is not satisfied with the judgment given by the lower courts. In the appellate jurisdiction, the higher court is asked to review and revise the judgement given by the lower courts. This also helps to eradicate any misinterpretation of law or misconstruction of facts, in the proceedings of the lower court.

Conditions for an appeal to the Supreme Court

Following are the conditions for appeal in the Supreme Court-

1. When the judgement, decree or order passed by the High Court.
2. When the issues in the case involve a substantial question of law.
3. When the High Court deems it fit that case must be dealt with by the Supreme Court only.

Appellate jurisdiction of the Supreme Court is further divided into

• Civil Matters
• Criminal Matters
• Constitutional Matters
• Special Leave Petition

Criminal Matters

An appeal can be filed against any judgment, final order or sentence of a High Court in a criminal proceeding in the following situations:

• The concerned High Court has reversed an appeal by an order of acquittal of an accused person and sentenced him to death, imprisonment for life or imprisonment for a period of not less than ten years.
• The High Court has withdrawn for trial before itself of any case from any of its subordinate courts and in such case, the accused has been convicted and sentenced to death or imprisonment for life or not less than 10 years. 
• The High Court certifies that the case is a fit one for an appeal to the Supreme Court.
• A person convicted on a trial held by the High Court in its extraordinary original criminal jurisdiction is also appealable.
• However, no appeal can be filed by a convicted person if the sentence passed against him by the HC does not exceed the term of 6 months or a fine not exceeding Rs. 1000 or both.
• The criminal appeal can be filed if the High Court disregarded or misapplied the established principles of criminal law.

No court fee is applicable in case of criminal appeal

Limitation Period

• If the certificate of fitness is granted by the High Court, then the appeal must be made within 60 days of such grant of certificate, otherwise, the appeal should be filed within 60 days of the final order or judgement.
• Time spent on obtaining a copy of the judgment as order appealed from or the time spent on obtaining the certificate and order granting the certificate are excluded.
• However, if sufficient cause is shown for the delay, then in such cases the delay could be condoned.

Constitutional Matters

The High Court under Article 132(1) grants a certificate to the party, which permits it to file an appeal in the Supreme Court if the High Court deems it fit that such case involves a substantial question of law. The Supreme Court acts guardian of the constitution, hence all the matter relating to important aspects of the constitution or if there is a need to interpret the constitution, then the case should be referred to the Supreme Court.

Civil Matters

Article 133, deals with the appeals of the civil suit from the High Court. Certain conditions are present for the same.

Judgment, decree or final order

Article 133(1), states that the appeal against any order, judgement or decree from any High Court present in the Indian territory would lie to the Supreme Court if the High Court certifies it under Article134(A). 

Judgement- Defined under Section 2(9) of the CPC, 1908. It is a statement that is made by the judge based on decree and order passed.

In fact, in the case of Balraj Taneja vs Sunil Madan, the Court held that the judge can’t simply say that the suit is dismissed or suit is decreed but has to give reasons for the same. Judgements are very important because they form part of the future precedents, and also a check on the judges that they do not use their discretionary powers blindly.

Essentials of Judgement

• A concise statement of the case.
• The points for determination.
• The decision thereon.
•  The reasons for such a decision.

The decisions from the small cause courts would contain only the second and the third points. Moreover sketchy orders which could not be used as future judgements. Conversely, an order passed by the Central Administrative Tribunal is not “judgement”. The meaning of “judgement” in the definition of the letter patent is wider than the actual definition of “judgement” and cannot be said so in the current reference.

Content of Judgement 

• Judgments of the Court of Small Causes need not contain more than the second and third points for determination and the decision.
• Judgments of other Courts shall contain a concise statement of the case, the points for determination, the particular decision, and the reasons for such decision.

The judgement should be a self-sufficient document, in which the entire reasoning of the judgement must be given. The judgement should describe the controversy that the court sought to settle and the mode for doing so and the conclusion reached in this process.

Judgement cannot be altered once signed except to correct any clerical or arithmetical errors, accidental slips or omissions or in case of review.

Order- It is defined under Section 2(14) of the CPC,1908. It means a formal expression by any civil court which is not a decree. As a general rule, an order is founded on objective considerations and as such the judicial order must contain a discussion of the question at issue and the reasons used by the court which led to the passing of the order.

Decree

It is defined under Section 2(2) of the CPC, 1908. It is a formal expression of adjudication, which according to the Court, describes the rights of the party concerned with respect to all or any of the issues in the case, it could be preliminary or final or partly final and preliminary.

It shall, however, not include:                                                                            

1. a) Any adjudication from which an appeal lies as an appeal from a particular order.                                
2. b) Any order of dismissal for default.

Essentials of Decree

• The formal expression of an adjudication.
• The adjudication must be with regard to a suit before the court.
• The concerned court shall determine the rights of the parties with regard to all or any issue in the case.
• The adjudication in question should be conclusive.

Types of Decree

Preliminary Decree

When the rights and liabilities of the parties are declared by the Court, but the actual result is to be decided in the further proceedings. In the case of Shankar vs Chandrakant, it was held that further inquiries are conducted with respect to the preliminary decree, the rights of the parties are fully determined and decree is passed in accordance with such determination which is final. 

Final Decree

• The time has lapsed to file an appeal against a preliminary decree, or the case has been decided by the highest court.
• When the concerned court feels that the case has been disposed of.

Partly Final And Partly Preliminary Decree

The issue of a decree being partly preliminary and partly final comes when the Court decides two questions by the same decree. Thus, in one issue is resolved in toto but the other issue is left to be resolved in the further proceedings.

The distinction between Decree and Judgement

• Judgement is a statement made by the judge on the basis of the decree. It is not important to pass a statement in a decree but it is in the case of a judgement.
• Judgement is a contemplation of a stage prior to the decree. 
• It is desirable and not mandatory to pass an order in a judgement.

The distinction between Decree and Order

• A decree can only be passed in a suit which arose through a plaint. An order may originate from a suit by plaint or may arise from a proceeding initiated by a petition or application.
• Decree conclusively determine the rights of the parties according to the case at hand and with respect to the concerned court. An order may or may not conclusively determine the rights of the parties.
• A decree may be preliminary or final or partly so, but an order cannot be preliminary.

The substantial question of law of general importance

The High Court under Article 134A, issue a certificate of appeal to the Supreme Court if it finds that there is a substantial question of law that is involved. The High Court can issue the certificate for appeal under two conditions:

(i) It deems fit on its own accord.

(ii) If an oral application is made by the parties or on their behalf, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, whether the certificate of the nature referred to in Article 132(1), or Article 133(1) or, as the case may be, of Article 134(1)(c), may be given in respect of that case.

Hence no interlocutory orders could be passed. Moreover, the test whether the order is final or not will depend on whether the controversy in the case is resolved or not. Under this Article, the party could plead in the Supreme Court, that the question of law decided by the lower court, wrongly interpreted.

“Substantial question of law” is not defined in the CPC,1908, therefore it must be construed from the facts of the case. One of the prime identification, of the substantial question of law, is to test whether the question would benefit the general public. A decision in the cases involving “substantial question of law”, acts as a precedent for the cases, regarding the same question and affect the public at large, rather than the parties concerned.

Need to be decided by SC

Furthermore, the High Court should be of the strong opinion that the particular question of law is of grave importance and hence should be decided by the Supreme Court only. Another reason for this could be the lack of competency of the High Court to consider the issues involved in the particular case.

Certificate of Fitness

Under Article 133, it is stated that the High Court grants a Certificate of Fitness to the party, so as to make the other party competent to file an appeal in the Supreme Court. The certificate could be granted on two conditions:

• The case involves a substantial question of law.
• The High Court thinks that the matter should be settled by the Supreme Court.

As per the 44th report of Law Commission of India, granting of the certificate of appeal to the Supreme Court should not be taken lightly. The certificate should be granted only when the High Court finds it extremely difficult to decide the matter itself or in exceptional circumstances. It is important to note that exceptional circumstances do not mean the high monetary value of the suit. Moreover, the High Court is in a better position to adjudicate matters involving within the state, as it is well versed with situation prevalent there, hence ordinary civil jurisdiction relating to the state matters must be dealt by the High Court itself.

Special Leave Petition

Special leave petition (SLP) means that an individual takes special permission to file an appeal against any verdict of the lower court. Thus it is not an appeal but a petition filed for an appeal. So after an SLP is filed, the Supreme Court may hear the matter and if it deems fit, it may grant the ‘leave’ and convert that petition into an ‘appeal’. SLP shall then become an Appeal and the Court will hear the matter and pass judgment. It must be noted that appeal in the Supreme Court is a matter of privilege and not a matter of right. It is only on the Supreme Court, to decide whether it will grant or not grant the right to appeal to a party. 

This leave is granted when the case involves a substantial question of law. Mere errors of fact, misinterpretation of evidence or facts are not grounds of appeal before the Supreme Court. The Supreme Court is only concerned if the law was correctly applied, whether the interpretation of the law was in accordance with the settled principles of law etc.

The Supreme Court can hold, reject or modify the earlier judgement, it can also send the case back to the lower court for fresh proceedings in accordance with the principles held by the Supreme Court.

Procedure at hearing

Application of leave and certificate of fitness

An appeal could be made in the Supreme Court only if the High Court grants a certificate of fitness to the party, which makes the party competent to file an appeal in the Supreme Court.

The Certificate could be granted under the following conditions:

1. The High Court thinks it fit to grant, on his own accord.
2. The aggrieved party or someone on their behalf, immediately after passing of the order, decree or judgement, make an oral application demanding the grant of such certificate. The court has discretionary power in this matter.

Effect of amendment in the Constitution

Article 134A was added by way of 44th amendment of the Constitution. Before this amendment, there was no provision in the Constitution regarding the time and manner of filing an application for the issue of a certificate by the High Court under articles 132, 133 and 134. 

Article 134A has to be read with articles 132, 133 and 134 as it seeks to streamline the High Court’s grant of certificates for an appeal to the Supreme Court. Articles 134A states that every High Court giving a “judgement, decree, final order or sentence” under its appellate jurisdiction under Articles 132, 133 and 134 in civil, criminal or other cases involving “a substantial question of law as to interpretation of the Constitution” “may”, on its own determine whether a certificate of fitness for appeal to the Supreme Court is to be given. But, it “shall” do so “as soon as may be” if an “oral application” is made by the aggrieved party “immediately after” passing of the judgement, decree, final order or sentence. The determination, in either case, has to be in accordance with the provisions of Articles 132(1), 133(1) and 134(1). Hence, to grant a certificate under Article 134A, the court has to ensure that the conditions under Article 132, 133 and 134 are fulfilled.

Security and deposit

Under Order XLV Rule 7 of CPC, 1908, the provision of “security” is provided. Where the certificate of appeal has been granted, the applicant has to, within ninety days, or if the satisfactory cause is given, within a further period of 60 days, from the date of decree complained of or within six weeks from the date when the certificate was granted, whichever is later.

• Furnish security in cash or in Government securities for the costs of the respondent.
• Deposit the amount required to manage the expenses of translating,  printing, and transmitting etc and to provide to the Supreme Court a correct copy of the whole record of the suit, except-

(i) Formal documents directed to be excluded by any Rule of the Supreme Court in force at that time.

(ii) Papers which the parties agreed to exclude.

(iii)Accounts, or portions of accounts, which the officer appointed by the Court for that purpose considers unnecessary, and which the parties were not asked specifically.

(iv) any other documents as the High Court may direct to be excluded.

Provided that the Court at the time of granting the certificate may, after hearing any opposite party who appears, order on the ground of special hardship that some other form of security may be furnished. Moreover, no delay shall be permitted to an opposite party to contest the nature of such security.

• The Court may also at any point of time during the proceeding revoke the security and give further directions. (Order XLC Rule 9 of CPC,1908).
• The Supreme Court after the admission of appeal but before the transmission of a copy of the record can ask for further securities if it appears inadequate. Time for furnishing such security is to be fixed by the Court and other sufficient security would be made (Order XLC Rule 10 of CPC, 1908).
• The Court can demand security in all cases in which the appellant is residing out of India, and is not possessed of any sufficient immovable property in India other than the property (if any) to which the appeal relates. 
• Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal.

Admission of appeal

Under Order XLV Rule 8, of CPC,1908, the procedure of the admission of the appeal in the Supreme Court is delineated.

Where the security has been furnished and the deposit has been made with the satisfaction of the Court, the Court shall:

(a) declare that the appeal has been admitted,

(b) give notice of such admission to the respondent,

(c) transmit to the Supreme Court, under the seal of the Court, a correct copy of the said record, except as otherwise directed.

(d) give to either party one or more authenticated copies of any of the papers in the suit if applies for the same and has paid reasonable expenses incurred in preparing them.

Powers of court pending appeal

The pending appeal is an order which temporarily suspends the Court proceedings or any effect accruing from it. The motion of pending appeal is filed when the party wants to stop all the proceedings of the case, from where the appeal was filed. However, it does not stop the other party from enforcing the judgement of a lower court.

According to Order XLV Rule 13 of the CPC, 1908, the powers of the Court pending appeal are:

1. The decree that is appealed from the Court shall be executed unconditionally unless directed otherwise, granting of a certificate of appeal is immaterial.
2. The court may grant power of pending appeal if interest is shown by the party interested in the suit or any other special cause like-

1. Impound any movable property in dispute.
2. The Court may take the security from the respondents as it may deem fit would be necessary for the performance of any order by the Supreme Court.
3. Stay the execution of the decree appealed from. The Court may ask for security from the appellant, which would be necessary for the performance of the decree or order on appeal.
4. Place the party under such conditions or give directions, considering the subject matter of the appeal, by the appointment of a receiver.

It must be noted that Right of appeal is a vested right and accrues on the date on which first proceedings (suit, application, objection etc.) take place. In the case of Videocon v. SEBI, it was held that if the right of appeal is taken away or restricted, it does not affect the right of appeal in respect of pending proceedings, unless expressly so expressed. However, this principle does not apply to “revisions”. 

Execution of orders of SC

Under Order XLV Rule 16 of the CPC,1908, the orders made by any Court which executes the decree, or order made by the Supreme Court, shall be appealable in the same manner and rules as the orders of that court relating to the execution of its own decrees.

Appeals under constitution

Article 132 provides for an appeal to the Supreme Court of any judgement, order or decree from civil or criminal cases or any other proceedings. But for that, the High Court has to certify that the issues in the case involve a substantial question of law, that could only be dealt by the Supreme Court or if there is a scope for the interpretation of the Constitution.

Article 133 provides for an appeal to the Supreme Court of any judgement, order or decree from a civil proceeding of a High Court if it gives a certificate to the party that the case revolves around an important question law that needs the opinion of the Supreme Court.

Article 133 provides for an appeal to the Supreme Court from any judgement, order or decree from any proceeding of a High Court if:

• On appeal, it has reversed the decision of acquittal of a person and has given him a death sentence.
• Withdrawn for trial before itself, any case from any Court subordinate to it and convicted the accused given him a death sentence.
• High Court certifies that the case is fit to be decided by the Supreme Court.

Article 136 provides that the Supreme Court may according to its discretion give “leave” to a case decided by any Court in the territory of India to become an “appeal”. The “Court” in this case should not be the one constituted under any law relating to armed forces.

Conclusion

Supreme Court is the topmost forum in the hierarchy of the Court. It is primarily the Court of appeal. It is the highest forum for appeal in the country. The power of appellate jurisdiction is given to the Supreme Court, by the Indian Constitution under Article 132, 133, 134, 134A.

Under these Articles, various conditions are present which need to be satisfied for filing an appeal in the Supreme Court. Filing an appeal in the Supreme Court is a matter of privilege and not a matter of right, hence the fulfilment of these conditions is mandatory.

Moreover, under Article 136, the Supreme Court has the power to convert any judgement, decree or order of any proceeding from any court in the country (except the court established under the laws of the armed forces) to an appeal. For this, the Supreme Court hears the matter and then decide upon whether to give a “leave” and make the case into an “appeal”. If it gets the consent, then the case would be filed as an appeal in the Supreme Court.

Moreover, there are also statutory provisions available for filing an appeal, like through Section 109 Civil Procedure Code, 1908, Section 379 of the Code of Criminal Procedure,1973, Section 130E of the Customs Act, 1962, Section 23 of the Consumer Protection Act, 1986, Section 35L of the Central Excise and Salt Act, 1944, Section 38 of the Advocates Act, 1961, etc.

References

• Subash C Kashyap Constitutional Law of India, National Book Trust, Edition 2nd, 2011.
• http://www.legalservicesindia.com/article/1409/Appellate-Jurisdiction-of-Supreme-Court—Kailas-&-Ors.-v/s-State-of-Maharashtra-and-Taluka-P.S.html
• https://lawtimesjournal.in/appeal-supreme-court/
• https://www.writinglaw.com/order-45-of-cpc/#7_Security_and_deposit_required_on_grant_of_certificate
• https://www.advocatekhoj.com/library/lawareas/supremecourtappeals/criminalcases.php?Title=Supreme%20Court%20Appeal&STitle=Criminal%20cases
• https://www.lawyersupdate.co.in/constitution-of-india/article-134-appellate-jurisdiction-of-supreme-court-in-regard-to-criminal-matters/
• http://www.theindianlawyer.in/blog/2016/09/09/special-leave-petition/
• http://www.legalservicesindia.com/article/1783/Understanding-of-the-term-Decree,-Order,-Judgment-and-Mesne-Profit.html
• https://lawtimesjournal.in/judgement-decree-order-cavet/

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This article is written by Shruti Singh, 2nd year Law intern from Hidayatullah National Law University pursuing B.A.LLB (Hons.) course. This article explains the various procedures, rules and rights of an accused in case of arrest.

Introduction

An Arrest is an act of taking a person into custody as he/she may be suspected of a crime or an offence. It is done because a person is apprehended for doing something wrong. After arresting a person further procedures like interrogation and investigation is done. It is part of the Criminal Justice System. In an action of arrest, the person is physically detained by the concerned authority.

If we look at the dictionary meaning of the word ‘arrest’ it means to seize or to capture, to bring to a stop or to make it inactive. From all the meanings it can be deduced that arrest means to bring a stop to a person’s activity. A person can be arrested by police or Magistrate. But can an individual arrest another individual? If yes, then when can he be arrested and for what reason? Does an arrested person has fundamental rights? How can he get it enforced? All these basic questions regarding Arrest have been answered in this Article. 

Significance of the topic

The Arrest is one of the most important subjects of the Criminal Justice System. Why is it important to study this topic? It is so because an arrest is used as a tool for a person who is accused of a wrong. It tries to prevent wrong that is happening in society. It is used to create a sense of fear among the people that if any wrong is committed, a person’s movement will be restricted to four walls with very basic amenities. A person values his freedom the most and action of arrest takes this freedom from a person. 

The great political philosopher Bolingbroke once said,

“Liberty is to the collective body, what health is to every individual body. Without health no pleasure can be tasted by man; without Liberty, no happiness can be enjoyed by society.” These points make it important for us to give full attention to this topic. As in either way it is a part of our everyday life.

Types of arrest

The term Arrest has been defined neither in the CrPC (The Code of Criminal Procedure,1973) nor IPC (Indian Penal Code,1860). The definition has not been provided even in any enactments dealing with Criminal Offences. The only indication of what does an arrest constitute can be made out of Section 46 of CrPC which deals with ‘How an arrest is made’.

If broadly characterized arrest is of two types-

1. Arrest made in pursuance with a warrant issued by the magistrate.
2. Arrest made without any warrant but within the established legal provisions.

Another type of arrest is Private Arrest in which a person is arrested by another person. But it is allowed only in case a person commits a non-bailable offence in another person’s presence or is apprehended of committing a crime against a person or his property and when he is not given the correct address of his residence or it is unknown. But before arresting a person there should be sufficient apprehension and justifiable cause to arrest that particular person.

Arrest by warrant

If a person commits an offence which is non-arrestable then a warrant is necessary to be issued. The police cannot make such kind of arrest without a warrant. The warrant is issued by a Judge or a Magistrate on behalf of the state. An arrest warrant authorizes the arrest or detention of the person or capture or seizure of an individual’s property.  Section 41(1) of CrPC,1973 explains when can a person be arrested without any warrant. Section 41(2) of CrPC, 1973 states that subject to the condition in Section 42, a person cannot be arrested without a warrant and an order of the magistrate in case of non-cognizable offence and where a complaint is made. The procedures to be followed while arresting a person find its mention in Section 46 of the Code. But this Code is not fully sufficient to provide all the procedures, for this the guidelines given in different cases are followed. 

Arrest without warrant

An arrest without a warrant means when a police officer is entitled to arrest a person without any warrant. It can happen only in cases where a person is a suspect of an arrestable offence. There are several grounds provided in Section 41(1) of CrPC under which an arrest can be made without a warrant. It is usually done in case of a cognizable offence, when a reasonable complaint is made or when a piece of credible information has been received.

In the United States, an arrest without a warrant still requires a probable cause, which must be promptly filed. 

Arrest on refusal to give name and residence

Section 42 of CrPC states the course of action in case of arrest on refusal to give name and residence. 

Section 42(1) says that when a person has committed a non-cognizable offence refuses to give his name or address or gives a false name and address on the demand of the officer, he may be arrested by such officer to ascertain his correct name or residence.

Section 42(2) says that the person so arrested may be released after ascertaining the true name or residence but only after executing a bond, with or without sureties, to appear before the magistrate if required. But if the person is not a resident of India then the bond should be secured by a security or securities resident of India.

Section 42(3) says that if true name or address of the person is not found within twenty-four hours or if he fails to execute the bond or required sureties then he has to be presented before the magistrate falling within the jurisdiction.

Procedure of arrest by a private person

The procedure of arrest by a private person is expressly provided in Section 43 of the Criminal Procedural Code.

Section 43(1) states that a private person can arrest another person who commits a non-bailable offence or any proclaimed offender and without wasting any unnecessary time can be taken to a police officer and in the absence of the officer the accused has to be taken to the nearest police station.

Section 43(2) says that if the arrest of that person comes under Section 41, the police officer shall re-arrest him.

Section 43(3) provides that if there is sufficient reason to believe that he has committed a bailable offence and refuses to give his true name or address to the police officer, he shall be dealt with according to the provisions of Section 42. But he shall be released if there is no sufficient reason to believe that he has committed an offence.

Arrest by magistrate

Magistrate here includes both an executive or judicial Magistrate. According to Section 44(1) of CrPC when an offence is committed in the presence of a magistrate within his local jurisdiction, he has the power to arrest that person himself or order any person for arrest and subject to the conditions relating to bail, commit the accused to custody.

Section 44(2) in addition to clause 1 also provides that the Magistrate can also arrest or direct to any person in his presence, within his local jurisdiction of whom who he is competent to arrest at that time and in the circumstances to arrest. 

An exception of the Armed forces

The members of the Armed Forces are protected from arrest as provided in Section 45 of CrPC.

Section 45(1) states that no member of the armed forces can be arrested for anything done while discharging the official duties except with the consent of the Central Government. It is subject to the conditions mentioned in Section 41-44 of the Code.

Section 45(2) lays out that the State Government may through a notification can direct that the sub-section (1) shall apply to any class or category of members of Armed forces who are charged with the maintenance of public order as may be specified thereupon, whenever they are serving. In other words, the State government just like the Central Government is empowered to use the power mentioned in sub-section (1).

Procedure of arrest

There is no complete code which provides the procedure as a whole. Still, Section 46 explains how arrest is made. 

It is the only place that gives the meaning of arrest. Section 46(1) provides that in an action of arrest the police officer or the person making the arrest shall actually touch or confine the body of the person arrested. In the case of women, her submission to the custody of an oral intimation of arrest shall be presumed and unless the police officer is female, she shall not be touched by the police officer at the time of time. But in exceptional situations, contrary to what is mentioned can be done.

According to Section 46(2), the police are authorised to use reasonable amount or means of force to effect the arrest in cases where the person being arrested forcibly resists or attempts to evade arrest.

Recently what we saw in the Hyderabad Rape case(2019) can be a good example. The police officer using the power under this provision used an amount of force to prevent the accused from escaping. Whether the amount of force applied was reasonable or not is a question which will be inquired by the court.

Section 46(3) does not give the right to cause the death of the person who is not accused of an offence. The punishment in such cases is death or imprisonment for life.

Section 46(4) says that except in certain conditions a woman cannot be arrested after sunset and before sunrise and where such exceptional conditions exist, the woman police officer by making a written report can obtain the prior permission of the Judicial Magistrate with the local jurisdiction to make an arrest.

Additional powers for effecting arrest search of place

Section 47 of CrPC provides for the search of place entered by place sought to be entered. It further provides that the person having the warrant has the duty to enter the premises of the person being arrested. If the person is not able to easily ingress the premises or is not allowed to enter, then they have the authority to break open the door. It is done to take the person by surprise. 

But if there is any female occupying the premises then the person arrested has to give notice to that female to withdraw and shall afford every reasonable facility for withdrawing and they may break the apartment.

Any police officer or person making the arrest is authorised to break open the door in order to liberate himself if he is detained in that process. 

Pursuit of offenders

Pursuit is the action of pursuing someone or something. In this case, it basically talks about the offenders. Section 48 authorizes the police officers to pursue offenders in any place in India whom he is authorised to do so without a warrant.

Deputing subordinate to arrest

When any police officer who is in charge of a police station or any police officer making an investigation under Chapter XII requires any subordinate to him arrest without warrant any person who is lawfully arrested has to give in writing the reason specifying for which he is arrested. The subordinate before making such arrest is required to notify the person being arrested the substance of the order and if requires show him the order. This is given in Section 55 of CrPC.

Power, on escape, to pursue and retake

Section 60 of CrPC– If there is a person who is in the lawful custody of the police tries to escape or is rescued, may be immediately pursued and arrested in any place in India.

Post arrest procedures

Firstly, according to Section 50(1) of CrPC, it is the duty of the police officer or any person arrested without warrant to inform the person arrested about the grounds of the offence for the arrest. 

Secondly, in the case where the arrest is made under a warrant, the police officer under Section 75 CrPC is required to inform the person arrested about the substance of arrest and if required to show the order. If it is not done the arrest will become unlawful. 

The Indian Constitution also supports this and had emphasised upon it in Article 22(1), a fundamental right. It prescribes certain rights that are present with the accused at the time of arrest(fundamental in nature). It says that no person who is arrested shall be detained in custody without being informed about the reason for arrest and consult a legal practitioner of his choice. In re Madhu Limaye case, the petitioner was not informed about the grounds of his arrest along with his companions. He challenged this under Article 32 as it was in violation of his fundamental right before the Supreme Court. The Supreme Court observed that there was a violation of an essential and vital right of the petitioner.

Thirdly, when an arrest is made without a warrant by a police officer, it is his duty to show before the magistrate without unnecessary delay(usually within 24 hours). It is also mentioned that the person arrested cannot be taken to any place other than the police station before presenting before the magistrate. This is provided in Article 22 with Section 56 and Section 76 of the CrPC.

Apart from this, the police officer always has to bear the clear, visible and proper identification of his name which may facilitate his easy identification. As soon as the arrest is made a memo should be prepared which is to be attested by at least one witness and countersigned by the person arrested. 

The arrested person also has the right to consult an advocate of his choice during interrogation under section 41D and Section 303 of CrPC. Apart from these, there are many other rights and procedures mentioned in the further part of the article.

Search of an arrested person

Section 51(1) provides that the person arrested can be searched for articles on the body and the receipt of all those articles is to be provided to that person.

Section 51(1) says that in case of a search of female, it will happen only by a female maintaining some amount of decency. 

Seizure of offensive weapons

The officer or the person arresting has the power to seize any offensive weapon which he possesses and deposit all weapons to the court or the officer before whom the person making the arrest is required by the Code to produce the person arrested(Section 52).

Medical examination of accused

Section 52(1) provides that when a person who is arrested for a charge of the offence of such a nature that there are reasonable grounds for believing that such examination will produce evidence related to the commission of the offence. It is lawful for a registered medical practitioner under the request of the police officer, not below the rank of sub-inspector to carry about an examination with the use of reasonable force. But this force cannot be too much.

Section 52(2) says that when the examination is done of a female, it should only be done by a female or under the supervision of a female registered medical practitioner. 

Section 53A discusses the method of medical examination of a person accused of rape.

Article 20 of the Constitution provides that no person who is an accused can be compelled to give evidence against himself. This provision comes into play in relation to this section.

State of Bombay V. Kathi Kalu Oghad

In the case of State of Bombay vs. Kathi kalu Oghad, the Supreme Court provided certain guidelines in respect of Testimonial Compulsion or Right to self-incrimination. 

1. The mere fact that a statement was made in police custody cannot be proposed by the accused that the statement made at such time will be of compelling him to be a witness against himself.
2. The mere answer to a question asked by a police officer which is voluntarily given would not amount to ‘compulsion’.
3. The meaning of the “terms to be a witness” and “furnishing evidence” is different if seen from a broader view. As it includes not only merely giving an oral evidence but also the production of documents or giving material at a trial to prove the innocence or guilt of the person accused. 
4. The term “to be a witness” does not include the thumb impression or impression of foot.
5. “To be a witness” means imparting knowledge of relevant facts in oral or written in a court.
6. The court has gone beyond the strict literal interpretation of the expression “to be a witness” which now bears a broader meaning.
7. To bring the statement in question with the prohibition of Article 20(3), the person must be in the character of the accused person at the time he made the statement.

Identification of an arrested person

According to Section 54A, when a person is arrested on charge of committing an offence and his identification by any other person is deemed necessary then the court for the purpose of investigation, having jurisdiction, can direct the person so arrested to subject himself to identification in front of any person or persons as the court may think fit. When the person identifying the arrested person is mentally or physically disabled, in that case, the process of identification will happen before a Judicial Magistrate who will ensure that he identifies with the help of a medium he considered it comfortable. And this identification needs to be recorded in a form of video. 

Procedure when delegated person arrest without warrant

When a delegated person arrests the accused without warrant, any person thus arrested lawfully be delivered to the officer in writing the reason specifying the arrest. The officer needs to notify the person arrested the, substance of the arrest and if required to show the order of substance to the person arrested.

Report of arrests to be sent to DM and the procedure

Section 58 states that officers who are incharge of police stations shall report to the District Magistrate or if he directs to the sub-divisional magistrate, the cases of all persons arrested without a warrant within their local jurisdiction and whether they have been admitted to bail or otherwise.

Rights of an arrested person

The Constitution of India has laid down some basic rights for the accused at the time of the arrest. It is part of the Magna Carta (Part-III) of the Constitution. This makes it very crucial in nature. As in case these rights are not enforced, they can be challenged through a writ petition under Article 32 and 226 of the Constitution. It means that these rights in any way cannot be omitted from enforcing as they are fundamental. In addition to the constitution, it is also mentioned in the Code of Criminal Procedure,1973. Rights like Right to be informed, right to be presented before a magistrate within 24 hours, right to consult a legal practitioner of choice finds a place in Article 22 as well in CrPC.

Right to be informed of the grounds of arrest

Article 22 of the Constitution expressly provides Protection to an accused against arrest and detention

Article 22(1) says that no person who has been arrested shall be detained in custody without being informed of the grounds of arrest and nor shall be denied the right to be consulted and defended by a lawyer of choice.

Section 50(1) CrPC also mentions that every police officer or any other person arrested without a warrant has the duty to inform all the particulars of the offence to the accused forthwith (immediately). The time duration between which it is essential to inform the accused should be reasonable. If the police officer or the person arresting skips this right then the accused can move to the court under Article 32. The petitioner would be entitled to a writ of Habeas Corpus which can result in their release.

The rules originating from the decisions such as Joginder Singh v. State of U.P. and D.K. Basu v. State of West Bengal have been enacted in Section 50-A making it obligatory on the part of the police officer not only to inform the friend or relative of the arrested person about his arrest etc. but also to make an entry in a register maintained by the police in the police station. The magistrate who is observing such arrest is also under an obligation to satisfy himself about the compliance of the police of all the procedures in this regard.

Right to be released on bail

Section 50(2) CrPC provides that “where a police officer arrests any person other than a person accused of a non-bailable offence without warrant, he has the duty to inform the arrested person that he is entitled to be released on bail and he may arrange for sureties on his behalf.” This will certainly be of help to people who may not know about their rights to be released on bail in case of bailable offences. As a result, this provision may to an extent, improve the relationship of the people with the police and reduce the discontentment against them.

Right to be produced before a magistrate

Article 22(2) of the Constitution provides that every person who is arrested should be presented before the nearest Magistrate within 24 hours of such arrest, excluding the time of journey from the place of arrest to the place of magistrate. No person will be detained in custody of the police beyond the said period without the authority of the magistrate.

Section 56 and 57 of CrPC also provides for the same. If the person arrested is not presented before the Magistrate within the reasonable time and without a just reason, the arrest will be unlawful.

Protection against arrest and detention

Article 22 outlines several rights available to an accused in case of arrest and detention. Article 22(1) talks about the duty to inform the accused of the grounds of arrest and to consult a lawyer of choice. Article 22(2) makes it mandatory for the police officer to present the person arrested before a magistrate within twenty-four hours and cannot be detained beyond the said period.

Article 22(4) says that no person can be detained beyond the period of three months except on the recommendation of the Advisory Board. The person detained should be communicated the reason for detention as soon as possible and give him the earliest opportunity to make a representation against the order.

State of Punjab v. Ajaib Singh

This case defines Arrest as “ Arrest is a physical restraint which is put on a person as a result of accusations of the crime or offence he has committed”.

The order of detention was not in accordance with the Defence of India Act,1962 and Rules and must be set aside, as he was not then the District Magistrate, but only an Additional District Magistrate.

Right to consult a legal practitioner

Article 22(1) and Section 41D CrPC gives the accused the right to be consulted and defended by a legal practitioner of choice. He is entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation.

Right to free legal aid

Free legal aid means providing free legal services to the people who are economically not strong to conduct a case or any legal proceedings in a court of law or before any judicial tribunal and judicial authority. Article 39A (Directive Principles of State Policy) provides that it is the duty of the state to provide justice on easily accessible terms so that every citizen can easily approach the courts to enforce their rights. It ensures to provide justice based on equal opportunity through free legal aid or legislation favouring people who cannot access justice because of economic conditions or any other difficulty. For this, institutions like Legal Service Authorities are established at National, state and district levels. 

Hussainara Khatoon v. State of Bihar

In the case of Hussainara Khatoon vs. State of Bihar, a Public Interest Litigation(PIL) was filed in the name of Hussainara Khatoon, a prisoner in a jail in the Supreme Court. The Court held that if an accused is not able to afford the legal services he has the right to free legal aid at the cost of the state. It is one of the duties of the state to provide a legal system which promotes justice on the basis of equal opportunity for all citizens who are denied access to justice because of economic conditions or other disabilities. Therefore they must arrange for free legal services for the individuals.

Right to be examined by a medical practitioner

Section 54(1) CrPC gives a right to the accused to proceed with a medical examination of his full body in case this examination will afford evidence which can disprove the commission of an offence or crime on him or prove the commission by any other person at the time when he is presented before the magistrate or at any time during the detention. It can happen with the permission of the magistrate but if he thinks it is done just to cause a delay, he has the power to cancel it.

Joginder Kumar v. State of UP

A petition was filed under Article 32 by a young lawyer. The Supreme Court held that it is the right of an accused to be informed of the grounds of his offence, informed someone of his arrest and to consult a lawyer are inherent in Article 21 and Article 22 of the Constitution. It was also held that a police officer cannot arrest just because he has the power to do so. It should exhibit a clear justification for every arrest. Since there is some amount of harm caused to the reputation of a person when he is put behind bars. Therefore every arrest should happen after reasonable satisfaction and the minimum level of investigation as to the genuineness and bona fides of a complaint. Apart from these certain guidelines, were also provided that needed to be necessarily followed at the time of the arrest. This case law is taken into consideration for looking for rules apart from those mentioned in CrPC.

Consequences of non-compliance with the provisions relating to arrest

The non-compliance of the provisions which are mentioned in CrPC and other enactments will not make the trial void. It would not affect the liability of the accused. But it will be a material fact if the accused resisted or escapes from the legal custody. But a person has a right to defend himself in case of unlawful arrest or detention. He can enforce his rights through Section 96 to Section 106 of IPC. the person who is liable for unlawful arrest and can be made guilty for wrongful confinement and claim damages through a civil suit.

Conclusion

Rights are available to every citizen of the country. Even a person who is accused of an offence possesses various rights some of which are fundamental in nature. The accused can in case of non-compliance of these provisions approach the court where remedy is available. On the other hand, the police authorities are required to follow the procedure given in Chapter V of the Code of Criminal Procedure(CrPC). 

References

• http://www.legalserviceindia.com/article/l470-Private-Defence.html
• https://indiankanoon.org/doc/441720/
• https://indiankanoon.org/doc/1373215/
• https://indiankanoon.org/doc/1670784/
• http://www.aapkaconsultant.com/blog/guidelines-for-arrest/
• https://indiankanoon.org/doc/501198/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

The post Arrest of Persons appeared first on iPleaders.

This article is written by Pranjal Rathore, studying in Maharashtra National Law University, Aurangabad pursuing B.A.LL.B. (Hons.). It throws light on the aspect of appeal from orders under the Civil Procedure Code, 1908.

Introduction

This article basically centres around appeal from an original decree made under Section 96 of the Code of Civil Procedure and appeal from orders. The expression or the word ‘appeal’ has not been characterized in the Code of Civil Procedure 1908. An appeal can be termed as an appealing creature of the statute ,eas right to appeal is neither an inborn nor characteristic right. The right to claim must be given by statute. Section 9 confers on offer to prosecutor, freely of any rule, advance right to found intrigue suit of common nature in advance official courtroom. So he has an appeal right to apply for execution of appeal order went in support of him, however, he has no privilege to claim from appeal declaration or request made against him, except if the privilege is plainly given by resolution. Section 96 of the Code gives appeal right to disputant or litigant to offer from an original decree. Section 100 gives him appeal right to offer from a re-judging declaration in specific cases. Section 109 gives him the right to speak to the Supreme Court in specific cases. Section 104 gives him the right to appeal from orders as recognized from orders.

Meaning

An appeal is a procedure by which a judgment/request of a subordinate court is tested under the steady observance of its prevalent court. An appeal can be documented distinctly by an individual who is a member or party to the case under the steady observance of the subordinate court. Be that as it may, at the demise or death of such an individual, his lawful beneficiaries and successors in appeal should file or keep up a previously documented appeal in numerous issues. The individual documenting or proceeding with an appeal is known as the appealing party or appellant and the concerned court is named as the appellate court or re-appraising court.  Party involved with the particular case doesn’t have any inalienable right to challenge the judgment/request of a court under the observance of its Superior Court. 

Offer can be documented just on the off chance that it is explicitly permitted by any law and must be recorded in a predefined way in the predetermined Courts. The redressal of legitimate complaints includes three-level of appeal, various levelled legal apparatus containing the Supreme Court as the most elevated Court of the nation. The High Courts arranged in different States and Union Territories establish the second level of this hierarchical request in the sliding request. The Courts in a specific State or a Union Territory subordinate to their separate High Courts, are the lowermost rung of the chain of importance or hierarchy. There are sure special tribunals to settle upon certain particular issues, for example, annual assessment, extract, organization law the bank recuperation cases, regulatory courts, customer courts, and so on. Appeals from these councils or tribunals may lie in the High Court or the Supreme Court.

Difference between order and decree

Decree

The meaning of decree can be found in Section 2(2) of the Code of Civil Procedure, 1908. As indicated by the content, a decree “the proper articulation of an adjudication which so far as respects, the Court communicating it, decides the privileges and rights of the parties as to all or any of the issues in discussion in the suit and might be either primary or last.” The decree is the outcome (or the last piece) of a judgment. A primer decree can be subject to additional proceeding before the suit is disposed of, while the last announcement which depends on the fundamental one is communicated when every issue of the suit has been settled. All together for a decree to be communicated, there must be a mediation – at the end of the day, all or any pieces of the suit must be settled and the assurance of the rights of the parties should be decisive (indisputable assurance). As such, when the judge has expressed his decision, the court can’t utilize any way to change the decision taken. The declaration is just substantial in the event that it is officially communicated following the procedure mentioned in the enactment.

Order

An order is a judgment communicated by the court (or the board), which doesn’t contain a pronouncement of decree (the last judgment). As such, an order is a command by the judge to one of the parties to the suit, educating the plaintiff party to take (or not take) explicit actions. While the ‘decree’ is worried about generous issues, the ‘order’ centres around procedural viewpoints (for example adjournment, revision, amendment and so on). Section 2(14) of the 1908 Code of Civil Procedure characterizes order as “the proper articulation of any decision of a Civil Court which isn’t a decree.” An order might possibly, at last, or may not decide a right, however, it is constantly final and can never be preliminary.

The distinction between the decree and order can be drawn simply on the accompanying grounds: 

Appealable orders

Order 43, Rule 1: An appeal will lie from the accompanying requests under the arrangements of Section 104, specifically:

• An Order under Rule 10 of Order VII is for restoring a plaint to be exhibited to the correct court, with the exception of  the system which is determined in Rule 10-A of the Order has been pursued. Which says that court can add any person as party at any point of proceedings.
• An Order under Rule 9, Order IX dismissing an application (for a situation open to appeal) for a request to put aside the expulsion of a suit.
• An Order under Rule 13 of Order IX dismissing an application (for a situation open to appeal) for an order to put aside a decree passed out.
• An Order under Rule 21 of Order XI, if there should be an occurrence of rebelliousness with an order for disclosure.
• An Order under Rule 34 of Order XXI is for an issue with the draft of the report of support.
• An Order under Rule 72 or Rule 92 of Order XXI saving or declining to put aside a deal.
• An Order dismissing an application under sub-rule (1) of Rule 106 of Order XXI, gave that a request on the first application, in other words, the application alluded to in sub-rule (1) of that Order is appealable.
• An Order under Rule 9 of Order XXII declining to put aside the reduction or rejection of a suit.
• An Order under Rule 10 of Order XXII giving or declining to give leave.
• An Order under Rule 2 of Order XXV dismissing an application (for a situation open to offer) for a request to put aside the rejection of suit.
• An Order under Rule 5 or Rule 7 of Order XXXIII dismissing an application for authorization to sue as a poor individual.
• Orders in interpleaded suits under Rule 3, Rule 4 or Rule 6 of Order XXXV.
• An Order under Rule 2, rule 3 or rule 9 of Order XXXVIII.
• An order under rule 1, rule 2, rule 2A, rule 4, or rule 10 of Order XXXIX;
• An order for refusal under rule 19 of Order XL1 to re-concede, or under rule 21 of Order XLI to re-hear, an intrigue or appeal;
• An order under rule 23 or rule 23-A of Order XLI remanding a case, where an appeal would lie from the pronouncement of the investigative court;
• An order under rule 4 of Order XLVII giving an application for the survey.

Res Judicata

Section 11 defines the rule of res judicata or the standard of indisputableness of the judgment, with regards to the focuses of both realities, or of law, or of actualities and law, in each consequent suit between similar parties. It orders that once an issue is finally decided by a court, no party can be allowed to revive it in a resulting suit. The teaching of res judicata has been clarified by Das Gupta J. in the case of Satyadhyan Ghosal v. Deorjin Debias, in the following words : “The standard of res judicata depends on the need of giving an irrevocability to legal choices. What it says is that once a res is judicata, it will not be decreed once more. Essentially it applies as between past prosecution and future suit. At the point when an issue, regardless of whether on an issue of actuality or an issue of law, hosts been settled on two parties in a single suit or continuing and the choice is conclusive, either in light of the fact that no appeal was taken to a higher Court or in light of the fact that the intrigue was expelled, or no intrigue lies, neither one of the parties will be permitted in a future suit or continuing between similar gatherings to campaign the issue once more.”

‘Res’ signifies ‘topic’ or ‘debate’ and ‘Judicata’ signifies ‘pronounced’, ‘chose’ or ‘mediated’. ‘Res Judicata’ along these lines signifies ‘an issue pronounced’ or ‘a contest decided’.The teaching of res judicata is imagined in the bigger open appeal which necessitates that all the case must, sooner than later, arrive at an end. The guideline is likewise established on equity, value and great still, small voice which necessitates that a party who has once prevailed on an issue ought not be bugged by a variety of procedures including the equivalent issue.

The regulation of res judicata depends on 3 maxims: 

1. nemo debet bis vexari pro una et eadem causa (no man ought to be vexed for a similar reason); 
2. interest reipublicae ut sit finis litium (it is in light of a legitimate concern for the State that there ought to be a conclusion to a prosecution); 
3. res judicata pro veritate occipitur (a legal choice must be acknowledged as right).

In this way, the principle of res judicata is the joined aftereffect of open approach reflected in maxims (2) and (3) and private equity communicated in maxim (1); and they apply to all the legal procedures whether common/civil or criminal. In any case, for this rule there would be no closure to the case and no security for any individual, the privileges of people would be engaged with unending perplexity and incredible shamefulness done under the front of the law.

In Duchess of Kingstone case, it was seen that judgment of a court of simultaneous ward, straightforwardly upon the fact of the matter is, as a plea, a bar, or as proof definitive, between similar gatherings, upon a similar issue, legitimately being referred to in another court and the judgment of a court of selective locale, straightforwardly on the fact, is, in a way, indisputable upon a similar issue, between similar gatherings, coming unexpectedly being referred to in another court, for an alternate reason. The guideline of res judicata looks to advance honesty and reasonable organization of equity and to oppose maltreatment of procedure of law.

In Daryao v. Province of U.P., the Court saw that the coupling character of decisions articulated by Courts of capable locale is itself a basic piece of the standard of law, and the standard of law clearly is the premise of the organization of equity on which the Constitution lays so a lot of accentuation. The Court consequently held that the rule of res judicata applies likewise to an appeal documented under Article 32 of the Constitution and if a request recorded by an applicant in the High Court under Article 226 of the Constitution and is expelled on merits, such choice would work as res judicata in order to bar a comparable request in the Supreme Court under Article 32 of the Constitution.

Extent and its applicability

The regulation of res judicata is a major idea dependent upon open strategy and private interest. It is appropriate to common suits, execution procedures, discretion procedures, tax collection matters, modern mediation, writ petitions, regulatory requests, between time orders, criminal procedures and so on.

Conditions of Res Judicata

To establish an issue as res judicata under Section 11, certain conditions should be satisfied, which were set down in Sheodan Singh v. Daryao Kunwar: 

1. The matter straightforwardly and generously in issue in the consequent suit or issue must be a similar issue which was legitimately and significantly in issue either really (Explanation III) or constructively (Explanation IV) in the previous suit (Explanation I). (Clarification VII is to be pursued with this condition).
2. The previous suit more likely has not been a suit between similar parties or between parties under whom they or any of them guarantee. (Clarification VI is to be pursued with this condition).
3. Such parties are more likely than not been disputing under a similar title in the previous suit. 
4. The Court which chose the previous suit must be a Court capable to attempt the resulting suit or the suit in which such issue is along these lines raised. (Clarifications II and VIII are to be perused with this condition).
5. The issue legitimately and considerably in issue in the subsequent suit probably been heard finally decided by the Court in the previous suit. (Clarification V is to be pursued with this condition).

Procedures, where res judicata isn’t appropriate, are: 

• Tax assessment matters;
• Res Judicata is not material to instances of habeas corpus petitions;
• Removal of the suit in default;
• Removal in limine;
• Removal of Special Leave Petition in limine by a non-talking request;
• Bargain order, however party is blocked from testing it by the rule of estoppel;
• False declaration;
• Withdrawal of suit;
• If there should arise an occurrence of progress in conditions;
• Change in law consequent to a choice rendered by the Court.

Trial of relevance

In Jaswant Singh v. Custodian the Court held that so as to choose the inquiry whether a consequent continuing is banished by res judicata, it is important to look at the inquiry regarding:

• Forum or capability of the Court;
• Parties and their agents;
• Matters in issue;
• Matters which should have been made the ground for assault or safeguard in the previous suit;
• Official choice.

Forum of appeal

Forum of appeal or the court which can hear appeal are mentioned in Section 106 of the Code of Civil Procedure. Where an appeal from any Order is permitted it will lie in the Court to which an appeal would lie from the announcement or decree in the suit in which such Order was made, or where such an order is made by a Court (not being a High Court) in the activity of investigative purview or jurisdiction, at that point to the High Court.

Letters Patent Appeal

Letter Patent Appeal (LPA) is an appeal by a solicitor against a choice of a solitary judge to another seat of a similar court. It was a cure given when high courts were first made in quite a while in 1865. This is a solitary cure which is accessible in court to the applicant against the choice of a solitary judge of a high court. Generally, a cure would lie with just in the incomparable court. Some of the time the choice of single judge would likewise turn out badly because of wrong certainties just as by law. In this under the steady gaze of going to Supreme Court, the solicitor has the choice to move to another seat who’s having more than one judge. So applying for letter patent intrigue (LPA) applicant will spare the expense to moving in the Supreme Court. Letter patent intrigue (LPA) is an intra-court claim in the high court and between Supreme Court and both have various guidelines in regards to this LPA. Regularly a judgment and request under Article 226 of the Constitution is appealable as LPA and judgment and request under Article 227 isn’t appealable under this class.

Letter Patent Appeal in the High Court

Letter patent appeal can be documented in the high court and just in such high courts that have been built up by the letter patent. Division seat can document a letter patent intrigue to Supreme Court. It implies it will likewise incorporate full seat of 5 judges, 7 judges and furthermore the Supreme Court. Letter patent appeal is the main court set up by a letter patent in other court set up under the constitution and it is known as the subsequent appeal. Writs are additionally settled by the Indian constitution and it very well may be raised if the contrary party acknowledges a writ of habeas corpus. Writ locale lies just in the high court and Supreme Court and there is no points of interest and drawbacks in the letter patent appeal.

Letter Patent Appeal is not maintainable in the Arbitration Court

The three judge’s seat of the Bombay high court holds that letter patent appeal isn’t viable from a request gone under Section 8 of the code. Just Section 37 of the code demonstration applies to such appeal. Arrangements and decisions rendered under the Arbitration Act of 1940 can be depended upon while translating the arrangements of the Arbitration Act of 1996. The three-judge bench of the Bombay high court in the case of Conros Steels Private Limited (“Conroe”) v. Lu Qin (Hong Kong) Company Limited (“Lu Qin”) has settled the inquiry identified with the appealability from a request under segment 8 of the mediation and placation act and Clause 15 of the letter patent. It has been seen that an application under Section 8 of the Act is an application under part I of the Act and thus the bar under Section 37 of the Act would apply to an intrigue from a request under Section 8 of the Act. It has been held that a Letters Patent intrigue isn’t viable from a request under Section 8 of the Act.

Appeal to Supreme Court

Rule 1 Order XLV

“Decree” is characterized in a specific order, except if there is something repulsive in the subject or setting, the articulation “order” will incorporate the last request.

Rule 2 Order XLV 

“Application to Court whose pronouncement grumbled of”:

1. whoever wants to advance the Supreme Court will apply by request to the Court whose declaration is whined.
2. Every request under sub-rule (1) will be heard as speedily as could be allowed and try will be made to finish up the transfer of the appeal inside sixty days from the date on which the appeal is displayed to the Court under sub-rule (1).

Rule 3 Order XLV

 “Declaration as to esteem or wellness”:

1. Every request will express the grounds of offer and appeal to Supreme Court for an endorsement: that the case includes a considerable inquiry of law of general significance, and that in the assessment of the Court the said inquiry should be chosen by the Supreme Court.
2. Upon receipt of such request, the Court will guide notice to be served on the contrary party to show cause why the said declaration ought not to be allowed.

Rule 6 Order XLV

“Impact of refusal of testament” where such testament is refused, the appeal will be expelled.

Rule 7 Order XLV

 “Security and store required on the award of testament”:

1. Where the testament is in truth, the candidate will, inside ninety days or such further period, not exceeding sixty days, as the Court may upon cause demonstrated permit; from the date of the announcement griped of, or inside about a month and a half from the date of the award of the declaration whichever is the later date;

(a) outfit security in real money or in Government protections for the expenses of the respondent, and

(b) store the sum required to settle the cost of interpreting, deciphering ordering printing, and transmitting to the Supreme Court a right duplicate of the entire record of the suit, with the exception.

1. Formal archives coordinated to be prohibited by any Rule of the Supreme Court until further notice.
2. Papers which the gatherings consent to prohibit;
3. Records or bits of records, which the official engaged by the Court for that reason think about superfluous, and which the gatherings have not explicitly requested to be incorporated, and
4. Such other reports as the High Court may direct to be prohibited: Given that the court at the hour of conceding the declaration may, in the wake of hearing any contrary gathering who shows up, request on the ground of unique hardship that some other type of security might be outfitted.

Rule 8 Order XLV

“Affirmation of advance and technique consequently” where such security has been outfitted and store made as per the general inclination of the Court, it will:

1. Proclaim the intrigue conceded;
2. Pull out thereof to the respondent;
3. Transmit to the Supreme Court under the seal of the Court, a right duplicate of the said record, aside from as previously mentioned, and
4. Provide for either party at least one validated duplicates of any of the papers in the suit on applying in this way and paying the sensible costs brought about in setting them up.

Appeal by indigent persons

Meaning

Order XXXIII identifies with be filled by the penniless people. A poor individual is characterized in clarification one to Rule 1 as per which is an individual is a destitute individual on the off chance that he doesn’t have adequate methods other than property excluded from the connection in the execution of the degree, to empower him to pay recommended expenses. An application is to be filled alongside the suit for consent to enable the candidate to document the suit as a needy individual. After due request, the court anyway may dismiss the application for consent to record the suit as a penniless individual on the ground-referenced in Rule 5. An individual having been announced as the poverty-stricken individual can be vanished on the ground-referenced in Rule 9. Under Rule 18 the state government can give free lawful support to the poor individuals.

Who may appeal?

It was held that homeless person application ought to be filled by just normal individual and into its ambit and degree legal individual additionally incorporate. This is a settled situation in UOI v. Khaders International Construction Ltd. It is all around settled that the arrangements of Order XXXIII Rule 1 have been sanctioned to empower poor people to look for equity by filing suits or bids without court expense. Actually what is planned is the ability to raise assets by standard and accessible methods and not using any and all means at all, unlawful or ill-advised. On the off chance that during the pendency of the suit the candidate, who is a destitute individual, kicked the bucket, it can’t be said that a short time later his lawful beneficiaries can get the advantage.

Inquiry

Order 33 Rule 1-A states that in the principal case, an investigation into the methods for the candidate ought to be made by the Chief Ministerial Officer of the court. The court may embrace the report put together by such official or may itself make an enquiry. Order 33 Rule 4 expresses that where the application put together by the candidate is inappropriate structure and is properly spoken to, the court may analyze the candidate with respect to the benefits of the case and the property of the candidate. Order 33 Rule 6 expresses that the court will at that point issue notice to the contrary party and to the Government pleader and fix a day for getting proof as the candidate may cite in confirmation of his neediness or in disproof thereof by the contrary party or by the Government Pleader. On the day fixed, the court will look at the observers (assuming any), created by either party, hear their contentions and either permit or reject the application.

Payment of court fees

Where an indigent individual prevails or succeeds in a suit, the state government can recoup court expenses from the gathering according to the heading in the announcement and it will be the main charge on the topic of the suit. Where an individual loses in the suit, the court charges will be paid by him. Where the suit lessens by virtue of the demise of an offended party, such court charges would be recouped from the bequest of the expired offended party.

Conclusion

The term appeal has not been characterized in the Code of Civil Procedure, 1908. It is an application or request to bid higher Court for thought of the decision of bid lower court. It is requested to continue the survey to be completed by offering more significant position or authority of claim choice given by the lower one. In advance it is appeal creature of rule and right to advance or appeal is neither an innate nor characteristic right. Individual distressed by offer declaration isn’t qualified as or directly for appeal from order. The privilege to request must be given by resolution. 

Section 9 presents on request prosecutor, freely of any resolution, appeal right to establish claim suit of common nature in bid courtroom. So he has an offer right to apply for execution of advance declaration went in support of him, however, he has no privilege to bid from claim announcement or request made against him, except if the privilege is obviously given by resolution. Section 96 of the Code gives appeal right to the prosecutor to request from a unique announcement. Section 100 gives him advance/ appeal right to request from a redrafting order in specific cases. Section 109 gives him the right to interest the Supreme Court in specific cases. Section 104 gives him the right to offer from orders as recognized from orders. When judgment is articulated against the party, right to claim emerges. Right to appeal doesn’t emerge when reverse choice is given, yet on the day suit is filed for example procedures initiated, right to advance get presented. Therefore, it tends to be said the Right to appeal is appeal substantive right vested in parties from the date suit was filed.

References

• https://www.lawnotes4u.in/2019/01/appeal-by-indigent-person-under-order-44-cpc.html
• https://lawtimesjournal.in/suits-by-indigent-persons-interpleader-suits/
• http://www.legalservicesindia.com/article/1279/Suits-by-indigent-person.html
• https://barandbench.com/indigent-person-court-fees-sc/
• https://indiankanoon.org/search/?formInput=appeal%20as%20indigent%20person

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This article has been written by Lakshmi. V. Pillai of 5th year pursuing B.A. LL.B from GLS Law College, Ahmedabad. This article in depth discusses the various types of punishment provided under Section 53 of the Indian Penal Code,1860. Further, the constitutionality of the death penalty and various case laws wherein the death penalty has been upheld and not upheld by the Apex Court are also cited. This article also includes topics like sentencing policy, compensation to victims and proposals for reform under IPC. 

Introduction

Under the sanction of the law, punishment is retribution on the offender to the suffering in person or property which is inflicted by the offender. Punishment is the way through which an offender can be stopped from doing offences against person, property, and government. Therefore, punishments can be of various types like deterrent, rehabilitative, restorative and retributive.

Sentencing Policy

Under the Indian Penal Code, the sentencing policy is measured on the following factors:

• The gravity of the violation;
• The seriousness of the crime; and
• Its general effect upon public tranquillity.

There is a correlation between measures of punishment and the measure of guilt. Accordingly, the sentencing policy in a particular offence is standardized.

In March 2003, a body was established by the Ministry of Home Affairs, the Malimath Committee (the Committee on Reforms of Criminal Justice System) in India. The purpose of the committee was to give recommendations on the sentencing guidelines for the Indian Judiciary. The aforesaid committee had issued its report in which it stated that there is a need to introduce guidelines on sentencing to minimize the uncertainty of awarding sentences. The committee observed that “for many offences, only the maximum punishment is prescribed and for some offences, the minimum may be prescribed” and thereby there is a lack of uniformity. This results in wide discretionary powers to the Judges to decide the sentencing duration, which leads to uncertainty in the sentencing policy. In 2008, the Madhava Menon Committee (the Committee on Draft National Policy on Criminal Justice), again reaffirmed the need for statutory sentencing guidelines.

As per the white paper introduced by the British Parliament, the aim of having a sentencing policy should be “deterrence and protection of society from evils”. The lack of sentencing policy will not only affect the judicial system but it will also substantially harm society. 

Fundamental Principles for Imposition of Different Types of Punishments 

As per the United States Institute of Peace, the principle of the imposition of punishment can be based on:

1. The necessity for criminal justice compulsion; and
2. The proportionality of punishment based on the nature and degree of the danger which is present against the fundamental freedoms, human rights, social values, rights guaranteed and protected under the Constitution or international law. 

In the case of Soman v. Kerala, the Supreme Court of India cited a number of principles while exercising discretionary powers by the Court. The general principles are proportionality, deterrence, and rehabilitation. In the proportionality principle aggravating and mitigating factors should be considered. Mitigating circumstances are related to the criminal and aggravating circumstances are related to the crime.

In para 12 of the Soman’s case, the Supreme Court pronounced that “Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice. There are no legislative or judicially laid down guidelines to assist the trial court in meting out just punishment to the accused facing trial before it after he is held guilty of the charges.” Further, the court acknowledged and opined the observation made in the case of State of Punjab v. Prem Sagar, wherein the Court stated that “In our judicial system, we have not been able to develop legal principles as regards sentencing. The superior courts except making observations with regard to the purport and object for which punishment is imposed upon an offender have not issued any guidelines.” Therefore, there is a necessity to have a sentencing policy with due consideration to the recommendations made by the Madhava Menon Committee and Malimath Committee. 

Scope of Section 53

In the Indian Penal Code, 1803 (“Code”), Section 53, specifically deals with different types of punishments which can be given by the Criminal Courts if the person is held liable under the Code.

There are five kinds of punishments recognized under Section 53 of the Code:

1. Death;
2. Imprisonment for life;
3. Imprisonment:

1. Rigorous Imprisonment; or 
2. Simple Imprisonment.

1. Forfeiture of property;
2. Fine.

Considering the above punishments, the courts are supposed to follow the procedures and provisions which are prescribed under other adjective and substantive laws. 

As per the scheme of the Code the maximum punishment is prescribed, leaving the minimum to the discretion of the Judge. The Judge has all the means to form an opinion on the sentence which would meet the end of justice in a particular case. If the offence is grave in nature then the Code had prescribed the maximum and the minimum duration of the punishment.

Awarding Appropriate Sentence is the Discretion of the Trial Court

In the case of Sibbu Munnilal vs State Of Madhya Pradesh, the three-judge bench of the Madhya Pradesh High Court had observed the scheme of punishment as follows:

1. The classification of offences is made with reference to the maximum punishment to which the offender is liable to receive.
2. In the case of the death penalty and imprisonment for life is provided as a punishment under a section. Imprisonment for life shall be considered as an alternative. And death penalty shall only be given if the case comes under the ambit of ‘rarest of rare case’. While giving the death penalty as punishment the Judge shall give due importance to the facts and nature of the case. 
3. Imprisonment can be categorized into two categories- simple and rigorous.
4. Imprisonment for life means rigorous imprisonment for twenty years.
5. The difference between imprisonment for life and imprisonment is the former can be rigorous and the imprisonment is till his last breath, however, the duration of the latter can vary from period 24 hours to 14 years.
6. Lastly, offences punishable with fine means the offences for which the maximum penalty can be fine only.

In a recent case of 2017, in State Of H.P vs Nirmala Devi, the Supreme Court ruled that the trial court has the discretion to give punishments as per the scheme provided under the code.

When Appellate Courts Can Interfere with Sentence Imposed

As per Section 386 of CrPC, the Powers of Appellate Court are as follows:

1. The Appellate court can interfere or dismiss the appeal if it finds sufficient grounds to do so after hearing the parties of the appeal;
2. If the matter is an appeal from an order or acquittal:

1. Then the appellate court can reverse such order and direct further inquiry of the matter or;
2. Direct for retrial of the accused.

3) If an appeal from a conviction, then the Appellate court have the following powers:

1. Reverse the finding and sentencing and acquit or discharge the accused or order for the retrial by a competent court, or committed for trial;
2. Alter the maintaining, finding of the sentence, or;
3. Alter the nature or the extent or nature and extent of the sentence, with or without altering the finding. However no power to enhance the sentence by the court.

4) If an appeal for enhancement of sentence, then the Appellate court have the following powers:

1. Reverse the finding and sentencing and acquit or discharge the accused or order for the retrial, or committed for trial;
2. Alter the maintaining, finding of the sentence, or;
3. Alter the nature or the extent or nature and extent of the sentence, with or without altering the findings with the power to enhance or reduce the sentence.

5) if the appeal is from any other order, then power to alter or reverse such order;

6) the appellate court can make any amendment or act incidental or any consequential order can be ordered which may seem to be just or proper to the court.

The section also includes a provision wherein it lays out conditions to the Appellate Court while exercising this power:

The conditions are as follows:

1. The Appellate Court shall not enhance the punishment unless the accused given an opportunity for such enhancement;
2. Further, the Appellate Court shall not inflict the punishment given by the court under appeal (trial court or lower court) unless the Appellate Court has a view that the punishment is inadequate.

In the recent case of State Of H.P vs Nirmala Devi, the Supreme Court held that the Appellate court shall not exceed its powers under Section 386 of Cr.P.C. beyond the statutory scheme provided under the Indian Penal Code. For example, to alter the sentence of imprisonment and fine with a sentence only of fine, the Appellate Court can not alter the order likewise where the consequences will be unjust and unfair. 

Principles for Sentencing 

The principle for sentencing developed through court decisions and legislation. And these principles form the sentencing decisions. The principles which are generally followed by the court are as follows:

• Excessiveness/Parsimony– the punishment which is given shall not be severe unless required.
• Proportionality– the sentencing shall fit to the overall gravity of the crime.
• Parity– the punishment should be similar for similar types of offences committed by offenders under similar situations.
• Totality– when an offender is punished with more than one sentence, the overall sentence must be just and appropriate which shall proportional to the offending behaviour.
• Purpose– the sentencing shall achieve the purpose of the punishment. The purpose of punishment can be a deterrent, rehabilitative, protection of the public, etc.
• Simplicity and predictability– sentencing shall not be depending on the bias or personality of the judge. There shall be a clear and definite scheme of sentencing.
• Truthfulness- the sentencing shall reflect the actual term to be served by the prisoner in prison, so there shall be no place for ambiguity.

Aggravating Circumstances 

The aggravating circumstances to which the Judges consider are as follows:

1. The surrounding of the crime itself;
2. The circumstances relating to the criminal’s background;
3. The circumstances relating to the criminal’s conduct; 
4. The criminal’s future dangerousness;

The other factors which are considered under aggravating circumstances are as follows:

• Professionalism and premeditation;
• Prevalence of offence;
• Offences committed in the group;
• Breach of trust.

In the case of Sangeet & Anr. v. State of Haryana, the court noted that the approach which was laid down in the case of Bachan Singh was subsequently not fully adopted by the courts. The mitigating factors and aggravating factors both need to be considered and balanced while sentencing a punishment to the accused. 

Types of Punishments

1. Death Sentence

 The death sentence is a punishment which is sanctioned by the government and ordered by the court where a person is put to death for a crime acted by him. It is also referred to as ‘Capital Punishment’. The act of carrying out such practice is called execution. As per the Amnesty International survey, the report on as of July 2018 is 56 countries retain capital punishment and 106 countries have completely abolished capital punishment for all crimes. In India, the death penalty is given by the method of hanging. The other ways through which death sentences executed at world scenarios are stoning, sawing, blowing from a gun, lethal injection, electrocution, etc.

The subject of death sentence always has been a matter of controversy. While considering the Constitution as the supreme, the validity of death sentence v/s fundamental rights constantly came forward for the debates. However, the death sentences are rarely given in the Indian criminal courts. In the case of Bachan Singh vs State Of Punjab, the Supreme Court held that capital punishment shall be given in the “rarest of the rare” case. However, what constitutes the “rarest of the rare cases” is not prescribed by the Supreme Court or by the legislature.

In the case of Jagmohan Singh v. State of Uttar Pradesh, the SC ruled that the approach towards imposing capital punishment shall be balanced on mitigating and aggravating factors of the crime. However, in the case of Bachan Singh, for the first time, this approach was called into question due to the amendments in the Cr.P.C. As per the amendment in the Cr.P.C. in the offence of murder the offender shall be punished with the sentence of life imprisonment. After taking due consideration of the amendment, the Court stated that capital punishment shall be given in special cases only. However, in the case of Sangeet & Anr. v. State of Haryana, the court noted that the approach laid down in Bachan Singh’s case is not fully adopted. The courts still give primacy to the crime and not to the circumstances of the criminal. The balance of the mitigating and aggravating factors have taken a bit of a back seat in ordering punishment. 

The provisions under which the death penalty is given as punishment under IPC are as follows:

• Section 115– Abetment for an offence punishable with death or imprisonment for life (if offence not committed);
• Section 118– Concealing design to commit an offence punishable with death or imprisonment for life.
• Section 121– When armed rebellion (i.e. waging, abetting to waging of war or attempting to wage war) is made against the constitutionally and legally established government;
• Section 132– Uprising, supporting and encouraging the formation of the mutinous group of people in the nations armed forces;
• Section 194- With the intent to obtain a death sentence to an innocent by presenting concocted vexatious proof;
• Section 302– Causing murder of another;
• Section 305– Abetting suicide to an insane or minor person;
• Section 303– When a life convict person murders another person;
• Section 396– Causing dacoity with murder;
• Section 364A– Kidnapping;
• Section 376A (as per the Criminal Law Amendment Act, 2013)- Rape

Some other Acts under which the death penalty covered as punishment are: 

1. Section 4, part II of the Prevention of Sati Act- Abetting or aiding an act of sati.
2. Section 31A of the Narcotic Drugs and Psychotropic Substances Act- Drug trafficking in cases of repeat offences.

However, the death penalty as a punishment is an exception to certain persons like intellectually disabled, pregnant women and minors.

Procedure When Death Penalty is Imposed 

The death sentence is executed by two modes in India:

1. Hanging by the neck till death (this is mostly ordered by the Courts);
2. Being shot to death.

The various states of India have jail manuals that provide a method for the execution of death sentences. In accordance with Section 354(5) of the Code of Criminal Procedure Act, 1950 hanging by neck till death is the mode of the execution. After the death sentence is awarded by the court, the accused have the right to appeal the order. After exhausting all remedies and confirmation of the order, the execution is made as per procedure under Section 354(5) of Cr.P.C. The process of execution is provided separately under the Air Force Act, 1950, the Army Act, 1950 and the Navy Act, 1957. However, the procedure under the above-mentioned defence acts is applicable to defence officers only.

The Prison manual of different states of India gives detailed instructions about the execution particulars. Some are as follows:

1. The prisoner who is convicted for death sentence shall be given a proper diet, examined twice a day. The officers shall satisfy that the prisoner has no article by which he can attempt for suicide.
2. The description of the rope and testing of rope.
3. Regulation of the drop while executing the hanging.
4. Time of executions.

Constitutional Validity of Death Penalty

The issue of the death penalty is not a recent issue. It has been discussed, studied and debated for a prolonged time. However, till today no conclusion is drawn about the abolition or retention of the provision. The death penalty has been the mode of punishment from the British era. Various countries have abolished this practice. However, in Arab countries the principle of retributive punishment i.e. “an eye for an eye” is practised. In the list of retention countries as mentioned above, India is one of them which have retained to give death penalty unless some ‘special reasons’ or ‘rarest of rare case’ condition arise. 

Under Article 21 of the Constitution of India, the right to life and liberty is guaranteed, including the right to live with human dignity. There are certain exceptions that are recognized by the law wherein in the name of law and public order the state can restrict the rights. In Maneka Gandhi v. Union of India, the SC laid down the principle of “due process” through which a state can restrict the citizens from enjoying their rights. In the case of the death penalty the due process can be as follows:

• Death penalty to be given in ‘rarest of the rare’ cases;
• The accused shall be given the ‘right to heard’;
• As per Article 136, the death penalty shall be confirmed by the High Court;
• Under Section 379 of the Cr.P.C., the accused have the right to appeal in the Supreme Court;
• Under Section 433 and 434 Cr.P.C., the accused may pray for commutation, forgiveness, etc. of the sentence.

In various cases, the constitutional validity of the death penalty was challenged. In the case of Jagmohan Singh v. State of U.P, the argument was that the death penalty is in violation of Article 14 (Right to Equality), Article 19 (Right to Freedom) and “right to life” i.e. Article 21, which has been unanimously rejected by the five-judge bench of the Supreme Court. Further, it was contended that as per Cr.P.C. the procedure is confined to findings of guilt and not awarding death sentence. However, the Supreme Court held that the death sentence is a choice by the court made according to the procedure established by law and the choice between capital sentence or imprisonment of life is based on the circumstances, nature and facts of the case brought during the trial.

In the case of Rajendra Prasad v. State of U.P, Justice Krishna Iyer had empathetically stressed that the death penalty is violative of articles 14, 19 and 21. With this the Justice Iyer said two conditions under which the death penalty can be given:

• While giving the death penalty the court shall record special reasons.
• Only in extraordinary cases the death penalty to be imposed.

However, in the case of Bachan Singh vs. State of Punjab, within one year the five-judge bench (4:1- Bhagwati J. dissenting) overruled the decision of Rajendra Prasad’s case. The judgment expressed that the death penalty is not violative of Article 14,19 and 21 of the Constitution of India and pronounced that in the “rare of the rarest case” i.e. those cases in which the collective conscience of the community is so shocked that it will expect the judiciary to deliver the death penalty on the accused the death penalty can be ordered. Although, Justice Bhagwati in his dissenting judgment stated that the death penalty is not only being violative to Article 14 and 21 but also undesirable because of several other reasons.

Further, in the case of Machhi Singh vs. State of Punjab, the Supreme Court laid down the broad outlines of the circumstances under which the death sentence can be imposed. The court pointed out that under five categories of cases the extreme penalty can be given. Those points are as follows:

1. Manner of commission of murder;
2. Motive;
3. The magnitude of the crime;
4. Anti-social abhorrent nature of the crime;
5. The personality of the victim of murder.

Similarly, in the case of Sher Singh v. State of Punjab and Triveniben vs. State of Gujarat, the Apex court asserted affirmatively that the death penalty does not invalidate the rights enriched under the Constitution of India.

In the case of Mithu v. State of Punjab, the Supreme Court held that the mandatory death penalty is invalid and unconstitutional in nature. However, no comments were made on the consequent legislation for drug and criminal offences wherein the death penalty is considered mandatory. But at the same time, Indian courts actually applied the mandatory death penalty for these crimes. 

However, recently in the case of Channu Lal Verma v. State of Chattisgarh, the question of the constitutional validity of the death penalty came to the three-judge bench. The Bench Constituted of Justice Kurian Joseph, Justice Deepak Gupta, and Justice Hemant Gupta. The bench upheld the decision of the Bachan Singh case. However, Justice Kurian Joseph had a different view, he said that “there is no substantial proof for the death penalty as a deterrent to crime”.

Evolving Parameters for Imposition of Death Sentence

The basic evolving parameters for the imposition of Death Sentence are: 

1. The punishment shall not be so severe, so as to degrade the dignity of humans;
2. The state shall not arbitrarily inflict a severe punishment;
3. In a contemporary society such severe punishment shall not be unacceptable;
4. Such severe punishment must not be unnecessary.

However, there are other two questions which can be pondered by the Court while imposing the death penalty as punishment:

1. There is something uncommon in the crime which calls for the imposition of the death penalty and renders the sentence of imprisonment for life as inadequate.
2. Even after giving maximum weightage to the mitigating factors which are in favour of the offender there is no other alternative other than imposing the death sentence.

Sentencing Procedure: Mandatory Provision of Section 235(2), Code of Criminal Procedure 1973

In the ‘41st report of Law Commission’, it recommended for the insertion of new provision which made a significant contribution in acknowledging the cardinal feature of procedural fairness and natural justice. Under the old code, there was no statutory opportunity given to the accused to explain the mitigating factor which is relevant to decide the nature of the punishment. However, after the recommendation of the Commission introduction of Section 235(2) and Section 248(2) of the Cr.P.C. was made. The new provisions provided an opportunity for the convict to place necessary information to the court to determine the mitigating factors and decide the case accordingly. Therefore, the choice of sentence shall be made after following the procedure under section 235(2) duly followed by the court. In the cases of death sentence the importance of “right of hearing” has been overemphasized.

In 1976, in the case of Santa Singh v. State of Punjab, the Supreme Court explained the nature and scope of Section 235(2). The Bench remarked that “The provision is an acknowledgement of the fact that sentencing is an important stage in the criminal justice administration as the adjudication of guilt. And in no case, it should be consigned to a subsidiary position. It seeks to personalize the punishment so that the reformist component remains as much operative as the deterrent element. It is, for this reason, the facts of social and personal nature, maybe irrelevant for guilt determination, should be brought to the notice of the court at the time of actual determination of sentence”.

Further, the court also opined about the meaning of the word ‘hearing’. The hearing is not only limited to the oral submissions but it is wider than that. It gives both parties the right to put facts and materials which can be essential for the questions of sentencing. The Court stressed on the point that it is mandatory for the lower courts to comply with this provision. Not complying with Section 235(2) will not only be considered as mere irregularity, but that shall vitiate the sentence.

In the case of Allauddin Mian v. State of Bihar, Justice Ahmadi emphasized the purpose of Section 235(2):

1. It gives the accused an opportunity of being heard, which satisfies the rule of natural justice;
2. To determine the sentence of the award it assists the court. 

Case laws on Death Sentence (When the death sentence is confirmed)

(1) State of Tamil Nadu v Nalini

In the case of State of Tamil Nadu v Nalini, the case was filed as an appeal against the judgment of the High Court of Tamil Nadu. This case is popularly known as Rajiv Gandhi’s assassination case. The offenders were accused under Indian Evidence Act, 1872, Indian Wireless Telegraphy Act, 1933, The Foreigners Act, 1946, Passports Act, 1967, Arms Act, 1959, Explosive Substances Act, 1908, Indian Penal Code, 1908 (IPC), TADA Rules, The Terrorist And Disruptive Activities (Prevention) Act, 1987. In the case, there were 26 accused out of which four accused were punished death penalty by the Apex Court. The accused were from the LTTE (Liberation Tigers of Tamil Eelam) group and were seeking revenge for the Indian government’s decision for sending army troops in Srilanka. However, as per recent update Nalini Sriharan, V Sriharan, and Murghan have applied plea for mercy killing as there is no response to their mercy petition till date.

(2) Jai Kumar v State of Madhya Pradesh

In Jai Kumar v State of Madhya Pradesh case, an appeal by the grant of special leave against the order of the Division bench of the High Court of Madhya Pradesh was made. In this case, the accused brutally murdered sister-in-law and 7-year-old niece. The Court considered the factual matrix of the case and observed that the act of murder was not done in the rage and the accused himself under Section 313 of the Cr.P.C admitted the murder. Thereby, the Supreme Court upheld the verdict of the Sessions Court and the High Court of Madhya Pradesh.

(3) Suresh Chandra Bahri v State of Bihar

The case of Suresh Chandra Bahri v State of Bihar was filed as an appeal from the High Court of Patna. The Sessions Court convicted the three appellants named Suresh Bahri, Gurbachan Singh and Raj Pal Sharma for the death penalty under Section 302 and Section 120 B of the IPC. The High Court of Patna dismissed the appeal affirming the sentence awarded by the trial court. In this case, the accused killed Urshia Bahri and her two children because of some dispute in the property. The Supreme Court confirmed the death penalty of Suresh Bahri, whereas the death penalty of the Gurbachan Singh and Raj Pal Sharma was commuted to a life sentence.

(4) Dhananjoy Chatterjee alias Dhana v State of West Bengal 

In the 21st century, the case of Dhananjoy Chatterjee alias Dhana v State of West Bengal can be called as a historic case as the accused was the first person who was lawfully executed for a crime not related to terrorism. The accused was working as a watchman in the building of the deceased. He had raped and murdered an 18-year-old girl at her own home. The trial court ordered the death penalty under Section 302 of the IPC. The same has been confirmed by the High Court of West Bengal. While the appeal in the Supreme Court, the court held that case will be considered under “the rarest of the rare” case, thereby there will be no commutation of the punishment.

(5) Sushil Murmu v State of Jharkhand

In the case of Sushil Murmu v State of Jharkhand, the accused was punished with the death penalty for the sacrifice before Goddess Kali of a 9-year-old child. The accused made the sacrifice for his own prosperity. The trial court held the accused liable under Section 302 and 201 of the IPC, 1860 and the Jharkhand High Court confirmed the death penalty. The Appeal was made to the Supreme Court, however, the Apex court upheld the order of the lower court and affirmed that this is an exemplary case which can be treated as the rarest of rare case, therefore there is no exception to be given to this case.

(6) Holiram Bardokti v State of Assam

In the case of Holiram Bardokti v State of Assam, there were 17 accused. The appellant is one of the accused who has been awarded the death penalty under Section 302 read with Section 149 of the IPC by the Sessions Judge. The same has been confirmed by the High Court of Assam. The accused was being held for two murders i.e. of Narayan Bordoloi, Padam Bordoloi and Nayanmoni (6-year-old child). The Supreme Court observed that the appellant had no spark of kindness or compassion while burning the bodies and cutting the body into pieces, the whole accident shocked the collective conscience of the community. Therefore, the Apex Court upheld the order of the lower courts and observed that the court is not able to find any mitigating factors to refrain from the death penalty.

Cases laws on Death Sentence (When Death Sentence has been Commuted to Life Imprisonment)

(1) Om Prakash v State of Haryana

In the case of Om Prakash v State of Haryana, the accused named Om Prakash was guilty of seven murders, thereby the Sessions court held him guilty under Section 302 of IPC, which was upheld by the High Court of Punjab and Haryana. There were two other accused but they were given life imprisonment and a fine of Rs.2000. During the appeal to the Apex Court, the court observed that mitigating factors of the case and considering other circumstances of the case, this can not be counted under the rarest of rare cases. The court considering the background of the case found that the murder was acted due to constant harassment of the family members (deceased ones). 

Further, the court observed that this is not the case which was committed to fulfil the lust for women or wealth, neither it is for money, the act does not include any anti-social element like kidnapping or trafficking, the act does not include any dealing in dangerous drugs, nor any act committed for political or power ambitions. And further, the accused was working in BSF at the age of 23 with no criminal antecedents. Thereby, the Apex Court converted the death penalty to the sentence of imprisonment for life.

(2) Rajendra Rai v. State of Bihar

In the case of Rajendra Rai v. State of Bihar, the accused were held guilty of the murder of Krishnandan (deceased 1) and Sir Bahadur (the son of deceased 1), as the accused and deceased had a dispute over the land situated between their houses. The Trial court-ordered death penalty and the High Court confirmed the order. However, the Apex Court was of the view that the case cannot be regarded under the rarest of rare cases. Thereby the death penalty was reduced to life imprisonment.

(3) Kishori v State of Delhi

In the case of Kishori v State of Delhi, the accused was in relation to the mob attack which occurred against the Sikh community immediately after the assassination of Mrs. Indira Gandhi, the then Prime Minister which broke out in several places including Delhi. The appellant was held to be a part of the mob. The Sessions court was of the view that the accused deserves a death sentence, as he has been convicted for several murders and he killed innumerable Sikhs in a brutal manner. The High Court of Delhi confirmed the order. However, the Apex Court had a different opinion. The Court said that the acts conducted during the chain of events shall be considered as one. Further, the act of the accused was not a personal action, was just a part of the group activity which can not be called as a systematic or organized activity. Therefore, the Apex court felt that the act of the accused as a result of the temporary frenzy act, so the court reduced the death penalty to life imprisonment.

(4) State v Paltan Mallah & Ors 

In the case of State Of M.P Through C.B.I., Etc vs Paltan Mallah, the deceased Shankar Guha Yogi, who was a popular and powerful trade union leader was killed. As he had been working for the welfare of the labour, the industrial unit at Bhillai and Durg wanted him to be out of their way. The deceased was the leader of the labourer organization named “CHATTISGARH MUKTI MORCHA” (‘CMM’). The workers at Bhillai asked for help in the protest. To help those labourers SG Yogi shifted to Bhilla with his servant Bhahal Ram. There was a widespread movement, due to this, the leaders of the CMM were attacked by the industrialists. The deceased apprehended that there is a serious threat to his life. On the midnight of 27.09.1991, Bahul Ram heard a noise from the neighbouring room where the deceased was sleeping. The servant found Niyogi lying on the bed in pain because of gunshot injuries. However, the accused Paltan Mallah and others were acquitted by the Sessions and High Court due to lack of evidence. However, the Supreme Court reviewed the matter and reversed the order of acquittal by the lower court. As there was a long lapse of time from the lower court’s decision of acquittal to appeal, the court sentenced him to undergo imprisonment of life.

(5) Sambhal Singh v State of Uttar Pradesh

In the case of Sambhal Singh v. State of UP, wherein the four accused (Sambhal Singh, Jag Mohan Singh, Krishna Mohan Singh, and Hari Mohan Singh) murdered the three children of the Munshi Mall (deceased- the brother of the Sambhal Singh) because of a family land dispute. The Sessions court found them guilty and the High Court confirmed the sentence. However, the Apex Court observed that the age of the four accused was not considered by the lower court. Sambhal Singh was old and the other three were young, therefore, the court reduced the punishment of death penalty to life imprisonment. 

(6) Swamy Shraddananda @ Murali Manohar Mishra v State of Karnataka 

In the case Swamy Shraddananda @ Murali Manohar Mishra v State of Karnataka, the accused was the second husband of the deceased Shakereh. The deceased came from a highly reputed and wealthy family. The accused murdered the deceased after a well-designed plan and executed it accordingly for attaining property which was on her name. The Session Court ordered the death penalty and the same was confirmed by the High Court of Karnataka. However, the Supreme Court converted the death penalty to life imprisonment. This is an important case from the point of view of sentencing and remitting the sentence. The Apex Court clearly differentiated the sentence of imprisonment for life from ordinary life imprisonment and held that the remission is not applicable to the cases where the imprisonment of life is given as a substitute to the death penalty, it means the accused will be in imprisonment till his last breath. 

Commutation of Death Sentence by the State or Central Government Scope

The powers of commutation of the death sentence by the State and Central government is provided under the following provisions of the Constitution:

1. Article 72– gives pardoning power to the President.
2. Article 161– gives pardoning power to the Governor.

The difference between Article 161 and Article 72 are:

1. Article 161 is narrower than Article 72.
2. Article 72 covers the punishment sentenced by a Court Martial, however, Governor is not entitled with such powers.
3. Article 72 covers all death sentences, however, under the ambit of Article 161 death sentences are not covered.

Imprisonment for Life

Life imprisonment is one of the types of punishment which is recognized under Section 53 of the IPC. Earlier this was also known as transportation for life. This punishment is given for serious crimes wherein the convicted remains in prison until his/her last breath. 

Scope of Section 57

Section 57 of the IPC is used when fractions of terms of punishment need to be calculated. However, it is important to understand that this section does not give any implied or explicit right to the prisoner to reduce his life imprisonment to 20 years of the sentence.

Under some sections like Section 116,119,120 and 511 of the Code, the prisoners can ask for relief under this section.

Is Life Sentence does Period of 14 Years? 

In the case of Duryodhan Rout vs State Of Orissa (2014), the Apex Court clearly stated that reading Section 55 of the Code and Section 433 and 433 A of Cr.P.C, life imprisonment is not confined to 14 years of imprisonment, only the appropriate government can commute the life imprisonment of the prisoner.

The government can commute the punishment of life imprisonment to the imprisonment of term equal to or less than 14 years, or if the prisoner exceeded 14 years of imprisonment then he can be released.

In 1961 in Gopal Vinayak Godse vs. The State of Maharashtra & Ors., the question ‘whether there is any section in the law wherein the life imprisonment without formal remission by the appropriate government can be automatically treated as one for a definite period?’ came to the Apex Court as a question of law. Answering the question the court pointed out the observation made by the judicial committee which stated that, the transportation for life shall be deemed to be transportation for 20 years, however, this does not say that it shall be deemed to be considered the same for all purposes. Further, the provisions under which transportation for life has been amended to imprisonment for life can also not be put under Section 57 IPC. Therefore, a sentence of imprisonment for life or transportation for life must prima facie need to be considered as imprisonment or transportation for the whole life of the prisoner till his natural death.

The distinction between ‘Commutation’ under Section 55, Indian Penal Code 1860, and Section 433, Code of Criminal Procedure 1973

There is a thin line difference between Section 55, IPC and Section 433, Cr.P.C. Section 55 of IPC covers only the commutation of life imprisonment for a term not exceeding 14 years. Whereas Section 433 of Cr.P.C. covers the following powers of commutation to the appropriate government:

1. Death sentence- to any other punishment can be given which is recognised under the IPC.
2. Life imprisonment- to imprisonment not exceeding 14 years or fine.
3. Sentence of rigorous imprisonment- to any term of simple imprisonment (within the term he is convicted ) or fine.
4. Sentence of simple imprisonment- Fine. 

However, both provisions give power to the appropriate government to commute the sentencing of the offender without the consent of the offender. For the understanding of the section, the appropriate government can be either State or Central Government. If the order is passed under the matter which is exclusively covered by the union list, then the central government will be considered as an appropriate government. Otherwise, in all other cases, the State Government will have the power to commute the sentence. 

In the case of Harishankar, Gayaprasad Jaiswal vs State Of Gujarat, the Gujarat High Court observed that Section 55 of IPC is independent of Section 433 (b) of Cr.P.C. 

Imprisonment

The general meaning of imprisonment means captivity or to put someone in prison. Under Section 53 of IPC, imprisonment can be of two types. One is simple and the other is rigorous. As per Section 60 of the IPC, the competent court has the discretion to decide the description of sentencing. It can be of various types, like:

1. Wholly or partly rigorous; or
2. Wholly or partly simple; or
3. Any term to be rigorous and the rest simple.

Minimum Wages for Prisoners 

The prisoners who are prisoned in jail get wages for doing work inside the jail. The work done by them either can be voluntary or it can be part of their punishment. The wages of the prisoners are fixed as per their skills. Their classification is based on a) skilled, b) semi-skilled and c) unskilled.

Kerala High Court was the first High Court which took the initiative of giving minimum wages to the prisoners. The National Human Rights Commission (NHRC) after taking into the recommendation of the Mulla Committee proposed Indian Prisons Bill 1996. As per the Bill, it was prescribed that the wages should be fair, adequate and equitable wage rates. While considering the minimum wage rate it shall be prevalent to each State and Union territory agricultural, industry, etc. wage rate. Units of work shall also be prescribed for such minimum wages. The average per capita cost of the food and clothing shall be reduced from the wages and the remaining wages shall be paid to the prisoners.

The wages are given on per day basis. The idea of the prisoner’s wage is to compensate the victim or the relative of the victim from the fund made by the prisoner’s wage. As per Prison Statistics India 2015 of National Crime Records Bureau (NCRB), the highest wages were paid in Puducherry, followed by Delhi’s Tihar and Rajasthan. The wages for skilled varied from Rs.180- Rs.150, for semiskilled Rs.160- Rs.112 and for unskilled Rs.150- Rs.103 as per the top three high waged states.

Forfeiture of Property

Forfeiture generally means the loss of property without any compensation in return, which is the result of the default caused by the person in terms of contractual obligation, or in paying penalty for illegal conduct.

In two provisions the forfeiture of the property has been abolished:

1. Under Section 126 for committing depredation on territories of Power at peace with the Government of India.
2. Under Section 127 for receiving property taken during war or depredation mentioned in sections 126 and 126 of IPC.

Fine

The court may impose a fine as an alternative for imprisonment or can add it is an addition to the imprisonment. In certain cases the fine is added along with imprisonment. Section 63 to 69 covers various fines under the IPC. However, as per Section 64 of the Code, when there is a default in the payment of a fine, the court may order for imprisonment. 

Amount of Fine should not be Excessive

As per Section 63 of the IPC, when the sum is not expressed under the provisions of the Code, the amount of fine to which the offender is liable is unlimited, however, the fine shall not be excessive. 

In the case of Palaniappa Gounder v. State of Tamil Nadu, the Apex Court stated that the sentence given by the court shall be proportionate to the nature of the offence which includes the sentence of fine. And the punishment shall not be unduly excessive.

Sentence of Imprisonment for Non-payment of Fine 

Under IPC Section 64, the following offences are covered:

1. Imprisonment with fine;
2. Imprisonment or fine;
3. Fine only and where the offender is sentenced to:

(i) imprisonment; or 

(ii) fine or both.

In such cases, the court of competence shall direct the sentence to the offender for a certain term. Under Section 66 of the IPC, the court has the discretion to provide any description for the imprisonment. 

In the case of H.M Treasury (1957), the court said that in the case if the death of the convict has occurred then also the fine will be recovered from his property. 

Scope of Section 65

As per Section 65 of IPC, the court shall limit the imprisonment when the offender is sentenced to imprisonment and fine because of non-payment of fine. The limit of imprisonment shall not exceed one-fourth of the term of imprisonment which is the maximum period of the particular offence.

Scope of Section 67

Under Section 67 of IPC, the offences for which this section will be applicable is the offence which is punishable with fine only.

1. The imprisonment so awarded shall be simple only;
2. However, the term shall not exceed the following scale: 

• If fine does not exceed Rs. 50- the term shall not exceed two months;
• If fine does not exceed Rs. 100- the term shall not exceed four months;
• If fine exceeding of Rs. 100 to any amount- term shall not exceed six months. 

Recovery of Fine

Under Sec 421 of the Cr.P.C., the Court after passing the sentence can take the action for the recovery of the fine in two ways:

1. The court can issue a warrant to levy the amount by attaching and selling any movable property which belongs to the offender; or
2. Can issue a warrant to the collector of the district at the place of living of the offender, authorizing him to take the money from the immovable property or movable property or both. 
3. Provided that such actions shall not be ordered by the court if the offender has undergone imprisonment due to the default he made for the payment of the fine. Further, if the court gives any such order as after the offender has undergone imprisonment, then the court shall give special reasons for the same.

Further, in the case of Raju Tiwari v. State of Chhattisgarh, the Chhattisgarh High Court stated that without giving a proper ‘special reason’ the court can not order for the levy of money under Section 421 of CrPC when the offender already had undergone imprisonment for non-payment.

Conviction for Doubtful Offences

As per Section 72 of the IPC, when there is doubt regarding which offence has been committed by the offender and there is a problem to get evidence for the offences committed by the offender, in such circumstances the court can give the lowest punishment if the same punishment provided for all.

Solitary Confinement

Section 73 of the IPC covers solitary confinement (“Sol. Conf.”). The Code gives the description of the way punishment to be ordered by the Court. While giving solitary confinement the court shall keep in mind not to exceed three months in total. The scale is as follows:

• If the term not exceeds more than six months- Sol. Conf. not exceeding one month;
• If the term exceeds more than six months but not exceed one year- Sol. Conf. not exceeding two months;
• If the term exceeds one year- Sol. Conf. not exceeding three months.

Section 74 of the IPC gives the limit of Solitary Confinement while executing the Sol. Conf. the duration shall not exceed fourteen days.

And further, if the solitary confinement given exceed three months, then confinement shall not exceed 7 days in one month. 

Scope of the Sections Providing Solitary Confinement

In the case of Sunil Batra Etc vs Delhi Administration And Ors. the court observed that the Sol. Conf. should not be ordered unless it is deemed to be required as per the offence committed by the offender. The offence shall be extreme violence or the commission of the offence shall be brutally committed by the offender. However, the court felt that Sol. Conf. inhumane and horrendous. 

In the case of Smt. Triveniben & Ors vs State Of Gujarat & Ors, the court had a similar view and held that under Sec 30 (2) of the Prisons Act, the jail authorities do not have right to Sol. confine the prisoner who is under sentence of death. 

Enhanced Punishment 

Scope of Section 75

Under Section 75 of the Code when a person is convicted for the second time of an offence which is punishable under Chapter XII (Offences Relating to Coin and Government Stamps) or Chapter XVII (Offences Against Property), if sentenced for more than three years imprisonment, they are liable to greatly enhanced sentence. 

However, even when it seems like under Section 348 of the Cr.P.C. the magistrate is competent, the magistrate is not competent to award sentence under this provision when viewed with the amendment in Section 30 of Cr.P.C. wherein the Session Judge has the power to adjudicate such matters. Even though Section 75 makes certain classes of cases liable to be enhanced, it is not obligatory to the Court to do so while sentencing.generally this provision is used to give a deterrent effect. Further, it needs to be noted that the previous convictions for the attempt to commit an offence not covered under the ambit of this section.

Compensation to Victims of Crime 

The purpose of the criminal justice system is to protect the rights of the individuals and give punishment to the offenders. In such cases, the accused is caught and he is punished. However, an essential part is left over i.e. the ‘victim’. Earlier no one uses to consider the losses of the victim. Thereby compensation is the method to provide justice to the victim.

Compensation to Victims of Crime from Fine

The IPC provided various provisions under which fine is given as a mode of punishment. However, the fine sometimes is not sufficient enough to realise the actual loss of the victim. And the amount prescribed under IPC is minimal which need to be amended as per the current requirements.

Compensation to Victims of Crime from Victim Compensation Scheme

In 2009, the Central Government ordered the State to prepare a scheme for the compensation of victims. The main objective of the scheme was to support the dependents of the victims who suffered the loss or injury due to offence. Under this scheme, the rehabilitation can also be made.

Compensation to Victims of Crime from Wages of Prisoners

Under this, from the wages of the prisoners, a certain percentage of money is deducted and the saved money is converted into a fund for the welfare of the victims. However, recently a PIL was filed in the High Court of Delhi wherein the deduction of the wage of the Prisoners was considered to be arbitrary in nature and asked for repealing such provisions. Another interesting fact is as per the records of 2006 around Rs.15 crore was collected out of which only Rs.14 Crore is lying unutilised. However, the Delhi High Court held that deduction in prisons wages not wrong if allowed under the law.

Proposals for Reform

The proposals for reform in sentencing can be as follows:

• Reclassification of criminal offences: There is a huge increase in the types of offences, therefore to classify offences into different classes or separating them into different codes will make the Code more understandable and lucid. Further under the different codes the procedure and nature of trail can also be explained.
• The punishments need to be deterrent at the same time it shall not be severe. Therefore, it is time for Indian Judiciary to have a sentencing policy, so there is no space for ambiguity and bias of the Judge which creates a barrier while sentencing. And this step will also reduce the appeals for enhancing or reducing punishment which will be a great relief for the judiciary.
• A proper victim compensation fund can be created under the Code, wherein the confiscated assets from organised crime can also be included.

References

• https://www.loc.gov/law/help/sentencing-guidelines/india.php
• https://www.usip.org/sites/default/files/MC1/MC1-Part1Section2.pdf
• https://indiacode.nic.in/handle/123456789/2263?locale=en
• https://www.iitk.ac.in/wc/data/IPC_186045.pdf
• https://madhavuniversity.edu.in/constitutional-validity-of-capital-punishment.html
• https://www.indianbarassociation.org/constitutionality-of-death-penalty/
• https://shodhganga.inflibnet.ac.in/bitstream/10603/201779/12/12_chapter%205.pdf
• https://www.drishtiias.com/daily-updates/daily-news-analysis/commutation-of-death-sentence
• https://www.srdlawnotes.com/2017/04/punishments-under-indian-penal-code1860.html
• https://www.jatinverma.org/need-for-reforms-in-indias-criminal-justice-system/

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.

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This article is written by Komal Kumari, a 4th-year student of B.A. LL.B. in Lloyd Law College, Greater Noida. The article focuses on the various torts affecting contractual and business relations.

Introduction

There are various wrongs that affect the contractual and business relations, these are the acts that are done knowingly without any lawful justification for the sole purpose of interfering and affecting the contractual and business relations. The interference into contractual and business relations are done through these torts:

Inducing Breach of Contract 

Any act which is done intentionally without any lawful justification to induce a person to make a breach in the existing contract whereby the other person in the contract suffers damage. The case of Lumley v. Gye,118 Eng. Rep. 749 (K.B. 1853), is an important judgment on this point, as earlier this rule did not apply to other contracts although a master could bring an action against the person who had wrongfully deprived him of the services of his servant; this case brought the turning point in this field of law and any inducement to make a breach of contract was hereby recognized as an independent tort. In this case, a famous operatic singer – Johanna Wagner, was having a contract to sing for the plaintiff. The defendant induced her into breaching the contract by paying her a large amount of money to sing for him rather than the plaintiff, the defendant was held liable.

A tortious act of affecting a contractual or business relation through inducement can be committed in various ways.

By doing certain acts which if done by one of the parties of the contract would have resulted in the breach of the same

Knowingly performing such acts, which if done by one of the parties to the contract, would have resulted in the breach of contract. The decision in the case of G.W.K. Ltd. v. Dunlop Rubber Co. Ltd. explains this kind of interference. The plaintiff G.W.K Ltd. were the manufacturers of cars who were having a contract with A. Co. that the cars manufactured by the former were to be fitted with the tyres manufactured by the latter whenever the cars were sent to exhibitions. When the cars were sent to an exhibition, Dunlop Rubber Co., who was aware of the above-mentioned contract, secretly replaced the tyres from two cars with the tyres of their manufacture. They were held liable towards G.W.K. Ltd., for trespass to goods and towards A. Co. for interference with the contract.

By doing a certain act which renders the performance physically impossible 

By doing certain acts because of which the performance of the contract is physically impossible, i.e., removing the tools which are required for the performance of the contract or physically detaining one of the parties to the contract, with the sole purpose of preventing the performance of the contract.

By direct inducement 

An act by defendant through which he is offering some kind of temptation to one of the parties of contract for making a breach of his contract, i.e., by making some threat of harm if the contract is kept alive, for instance, a threat of strike until and unless the plaintiff is dismissed or by offering some higher remunerations to a servant than he is already receiving under the existing contract. If the defendant has given a mere advice, then it would not be actionable, i.e., if a person breaks his/her contract because of some medical advice, or suppose a girl breaks her contract of marriage due to her parent’s advice, both these actions are not liable for inducing a breach of contract and no action for the same can be brought against the doctor as well as the parents. However, it is possible that the person breaching the subsisting contract of service or marriage can be held liable for breach of contract.

There are certain qualifications required for breach of contract through inducement: 

Persuasion cannot be termed as inducing a person for breach of contract

There is no wrong in persuading a person from not entering into a contract, terminating a subsisting contract lawfully or persuading a person to refrain from entering into a contract. The case of Allen v. Flood, explains this point, in this case, the plaintiffs were shipwrights, who were employed by the shipowners for repairing the woodworks on the ship, but this contract included a clause that their service was terminable at will. Because of some previous grievances, a few ironworkers objected to the plaintiff’s employment there and through their representative, the defendant conveyed the warning to the shipowners that they would go on strike until the plaintiffs were discharged, resulting in the dismissal of the plaintiffs on that day itself. The House of Lords held that since the services of the plaintiffs were terminable lawfully, the plaintiffs had no cause of action howsoever malicious motive the defendants may be having.

Another case that explains this point is Genu Ganapati v. Bhalachand Jivraj, in this particular case, A filed a suit against B with the allegations that B through a suit against A & C, had procured a breach of contract between A and C, he had prevented A from performing the contract, which he had with C. However, it was found that B & C were having another contract regarding the same subject-matter, and what B had done was to enforce his contractual rights. The result of B’s suit was that A was not able to reap the benefits of his contract with C. The court held that A had not been prevented from reaping any benefit from the contract but not from performing the contract and therefore, B was not held liable for interfering with contact or business of A.

Agreements already null & void 

If the act is of such a nature that it induces breach of agreements which are already null and void, these are not actionable. Therefore, no action lies for inducing the breach of an infant’s agreement or a wagering agreement which are oppressive and unreasonable in nature. 

Justified actions 

An action arises when the inducement for making a breach in the contract is done without any lawful justification. An act of inducing the breach with a proper justification is considered a good defense. The case of Birmelow v. Casson, explains this point, in this case it was held that the actions of the members of the actor’s protection society were justified in inducing a theatre manager to break his contract with the plaintiff, as he paid the chorus girls such low wages that they were forced to resort to prostitution. Another example of justified action can be a father trying to persuade his daughter for making a breach of contract of marriage with a scoundrel.

Exceptions of this rule 

The exception to this rule was created through the (English) Trade Disputes Act, 1906. As per the Sec. 3 of this Act, the sole ground which indicates that the act of promoting the trade dispute would not be actionable is that it induces some other person to break a contract of employment or it is interfering with the trade, business or employment of some other person to dispose of his capital or labor as he wills.

A similar provision has been provided in the Indian Law under Sec. 18(1) of Indian Trade Union Act, 1926, which mentions that the sole ground that acts as a defense for any officer of Trade Union or any member thereof in furtherance of any trade dispute is that such act induces some other person to break his contract of employment, or that it is an interference with the trade, employment or business of some other person or with the right to act as per his own will on how to dispose of the capital or the labor. Hence, no suit or another legal proceeding shall be maintainable.

Intimidation

Intimidation is an established tort, the threat of doing an unlawful act for compelling a person to do something to his own detriment, injuring or harming himself or to the detriment of someone else. The case of Rookes v. Barnard, is an important judgment recognizing the tort of intimidation-where a person may be threatened to act in a manner injuring some third person. In this case, the plaintiff was employed as a draughtsman in the design office of British Overseas Airways Corporation (B.O.A.C) at London airport. The defendants are the officials of a registered trade union, the Association of Engineering and Shipbuilding Draughtsmen (A.E.S.D.). All members of the union were in a contract with B.O.A.C. that they will not resort to any strike if any dispute arises. The plaintiff resigned from the membership of the union and refused to join the same. His refusal to join resulted in all the members of the union passing a resolution and informing the B.O.A.C. that if the plaintiff was not dismissed, the members of the A.E.S.D. Union will withdraw their labor. As the B.O.A.C. was informed of the resolution by the defendants, the Corporation accented to the threat and dismissed the plaintiff after giving him due to notice. As a result, the plaintiff was not having any remedy against the B.O.A.C., as on their part neither there was any breach of contract or commission of a tort. He brought an action against the defendants for wrongfully inducing B.O.A.C. in terminating his services. The House of Lords held that the threat of withdrawing labor if the plaintiff’s services were not terminated constituted intimidation and since the plaintiff suffered thereby, he was entitled to succeed in his action.

The defendants contended that in order to constitute intimidation, the threatened unlawful act should either be some violence or the commission of a tort and a threat to breach a contract is not enough. The House of Lords rejected this contention and stating that the threat of breaching the contract can be a much more coercive weapon than threatening a tort, particularly when the threat is directed against a company or corporation.

Another contention raised by the defendants was that though there was a threat to break the contract, the plaintiff had no cause of action against the defendant’s as he was a stranger to the contract that was threatened to be broken. The House of Lords rejected this argument too, on the basis that the plaintiff’s action was a tort resulting in damage to himself, rather than the breach of contract. For this, the intimidated party could independently bring a separate action.

For constituting a wrong of intimidation, there should be a threat to do an unlawful act for compelling a person to do something to his own detriment, injuring or harming himself or to the detriment of somebody else. If the threat does not cause any detriment or it is to do something which is not unlawful, there is no intimidation. In the case of Venkata Surya Rao v. Nandipati Muthayya, an agriculturist pleaded that he was unable to pay the arrears of land revenue for which the village munsif threatened to distrain the earrings worn by him if no other movable property was readily available. The village goldsmith was also called for the same but on his arrival, one of the villagers made the necessary payment. It was held that there was no intimidation in this case since the threat was not to do something unlawful and had not compelled the plaintiff to do something to his own detriment or to the detriment of somebody else.

Intimidation under Criminal Law 

Intimidation is an offense according to the Sec. 503 of I.P.C., which states that if any individual who threatens another with any sort of harm or injury to his person, property or reputation or to the reputation of anyone in whom that person is interested, in order to cause alarm to that person or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as a means of avoiding the execution of such threat, commits criminal intimidation. For example, a threat delivered by C to B whereby C intentionally causes B to act (or refrain from acting) either to his own detriment or to the detriment of D. The essence of this wrong is the unlawful threats, the threat would be compelling a person to act to his own detriment or to the detriment of some third person. The examples of intimidation are where a person may be compelled to act to his own detriment, by threatening a person with violence if he performs a particular contract, continues his business or passes a particular way.

Conspiracy

An act where two or more persons without any lawful justification, come together with the sole purpose of willfully causing damage to the plaintiff, and an actual damage results therefrom, this would result in the tort of conspiracy. The tort of conspiracy is known as the civil conspiracy. Conspiracy can be termed as a tort as well as a crime. 

Essentials of the tort of conspiracy

There are three essentials of the tort of conspiracy, the presence of intention is the first and foremost, for a tort to become a conspiracy, the presence of common intention to harm the other person is a must. If the sole purpose of the combination is to defend the trade of those who enter into it or further the trade and not to injure any person, then no wrong is committed and no action will lie although damage has been incurred by the complainant. The aim or the purpose of the coming together or combination must be to cause damage to the claimant, however, the degree of intention to harm may differ (its presence is of utmost importance). 

The second essential element is “combination”, which refers to two or more persons coming together for a common purpose of performing a concerted action. The mere presence of similar intention without any combination is not enough for the tort of conspiracy. For example, two different persons Mr. X and Mr.Y having the same intention of harming Mr.W cannot be held liable under conspiracy as they were not combined together even though having the same intention, if with the same intention both the persons have combined together and Mr.X is guarding the door whereas Mr.Y proceeds to harm Mr.W, then this will give rise to the tort of conspiracy. 

The third essential is the presence of some overt acts done, that cause damage or harm to the other person. It is an act that is done to fulfill the purpose of the conspiracy. The final stage for the completion of the tort of conspiracy is that some overt act must be done, the completion of the conspiracy is not necessary even if a certain action is carried out in regards to the conspiracy resulting in the damage is sufficient. The tort of conspiracy can be said to be complete if there is a certain element of damage even if the overt act has not been accomplished completely.

When these three essentials are fulfilled then only it can be considered as a civil conspiracy. 

Exceptions of this rule

When the motive and aim of persons coming together is for furthering or for protecting their own interest rather than causing damage to the plaintiff, then it can be a valid defense to the act of conspiracy which is a perfect justification of their coming together and still not being liable for their concerted act even though it causes damage to the plaintiff. The case explaining this point is Mogul Steamship Co. v. Mcgregor, Gow and Co., [1892] AC 25, the defendants were firms of shipowners who were engaged in the business of carrying tea trade between China and Europe, they came together and offered reduced freight rate with an intention to monopolize the trade and which resulted in the plaintiff being driven out of the trade, who was a rival trader. The plaintiff brought an action for conspiracy. It was held that the defendants cannot be held liable as their object was a lawful one, i.e., to protect and promote their own business interests and they had used no unlawful means for achieving the same.

Similar decision was taken in the case of Sorrel v. Smith, [1925] AC 700, in this case, the plaintiff withdrew his orders from R, from whom he regularly used to buy his newspapers and started taking it from W. The defendants were the members of the committee of circulation managers of London daily papers, they threatened W of cutting of his supply of newspapers if he still continued to supply the newspapers to the plaintiff. The act done by the defendants was done for promoting their own business interests and thus, they were not held liable. In this case, the following two points were laid down:

1. When two or more persons intentionally come together with the sole purpose of injuring another person’s trade or business and their act results in damaging the same, then this act will be actionable as it is an unlawful act.
2. If the sole purpose and aim of coming together are to protect and defend the trade of those who enter into it or for the purpose of forwarding the trade rather than injuring someone, then no action will lie even if there has been some sort of damages, as no tort has been committed.

The distinguishing factor in the above-mentioned two situations is that in the first one there is no cause or excuse for the action and is therefore actionable. Whereas in the second one there is an excuse or just cause for the action taken and therefore is not actionable even if the damage has been incurred by the plaintiff.

Case laws in the tort of conspiracy 

The actions are for the promotion of the interests of the trade union without any malice- The case of Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch,  [1942] A.C. 435, before this case the law remained obscure regarding conspiracy as tort, this case is a landmark judgment as it firmly establishes that combination of persons with the aim of causing damage to the claimant would be held liable under conspiracy even though the act did would have been a lawful act. In this case, the defendants were a trade union, who instructed the dockers (members of the union), to refuse to handle the plaintiff’s goods without any breach of contract. The aim was to secure economic stability by preventing the competition in the yarn trade and thereby increase the wage prospects of the union members in the mills. It was held that since their actions were not motivated by any malice and were for promoting the interest of its members, there was no conspiracy.

The actions are for the protection of other rights than the economic rights – In the case of Scala Ballroom (Wolverhampton) Ltd. v. Radcliffe, [1958] 1 WLR 1057, CA, it was provided that a combination for protecting other interests than economic interests are also justified. The plaintiffs in this case with the aim to compel the plaintiffs to remove the color bar the defendants (officials of a musician’s union) served a notice to the plaintiff’s statement that if the color bar was not removed, its members (having colored persons) would not be permitted to play orchestra at the ballroom. The court refused to issue an injunction in order to restrain the defendants from making this proposal persuasion to its members.

The aim of the union is to harm or injure the plaintiff rather than the promotion of legitimate interests – In the case of Hunteley v. Thornton,  [1957] 1 W.L.R. 321, the defendants, who were the secretary and a few members of the union demanded the expulsion of the plaintiff from the union as the plaintiff (a member of the union) refused to take part in the union’s call for strike. The defendants were held liable for this act as this act was not for the furtherance of some interests but an act actuated by malice and grudges.

An act done for malicious motives – In the case of Quinn v. Leathem, (1901) AC 495 (528), there was the presence of malicious motives on the part of the defendants (trade union officials). The defendants objected to the employment of non-union labor by the plaintiff in his shop, they requested the plaintiff to replace the non–union labor with the members of the union, the plaintiff refused to do that. The defendants approached one of his regular and big customers and forced him to stop buying from the plaintiff. This act was done by the use of threats and force against him, resulting in the customer agreeing to their demand. The plaintiff suffered loss and was held entitled to claim compensation from the defendants. 

Act done for the purpose of gaining benefits – In the case of Rohtas Industries Ltd. v. Rohtas Industries Staff Union,  (1976) 2 SCC 82, the workmen of two industrial establishments went on strike, this strike was illegal according to the Section 23 read with Section 24 of the Industrial Disputes Act, 1947, as conciliation proceedings were pending. The Supreme Court had to decide whether the union was liable to pay compensation to the management for the loss incurred by them. Even though the strike was illegal, it was held that the union was not liable as their only purpose was to benefit themselves and not to cause any injury to the management. 

Conspiracy under Criminal Law 

Criminal conspiracy is governed by the Sections 120A and 120B of I.P.C.,1860, the defines of criminal conspiracy while the latter provides the punishment for the same. As per the definition provided the essentials of criminal conspiracy are, firstly, there should be an object to be accomplished, secondly, a plan or design for accomplishing that object, thirdly, an understanding between the two or more persons, whereby they commit to cooperate for the accomplishment of the object or an agreement for the fulfillment of the object.

Difference between conspiracy as tort and criminal conspiracy

There is a huge difference between criminal conspiracy and conspiracy as a tort. The tort of conspiracy remains uncodified and therefore, guided by the principles of common law, justice, equity and good conscience, and the precedents. But, the offense of criminal conspiracy is well-settled and codified law. An act is actionable as conspiracy under the criminal law if it is merely an agreement between the parties to do any illegal act or a legal act done by illegal means and it is not necessary that the conspirators must have acted in pursuance of their agreement, but the tort is completed only when actual damage has been incurred by the plaintiff. 

Malicious Falsehood

Malicious falsehood is the act of making malicious statements related to the plaintiff to some third party which adversely affects the pecuniary interests of the plaintiff. Malicious falsehood is more specifically wrong towards a persons’ business reputation. It is also known as injurious falsehood or trade libel.

A malicious statement made by the defendant regarding the plaintiff’s business being closed down will result in the plaintiff losing his customers this will be termed as a pecuniary loss to the plaintiff. This is a malicious falsehood for which the defendant would be held liable.

The Defamation Act, 1952 (English) provides that it is not necessary to prove the special damage to bring an action for malicious falsehood. Section 3(1)(b) of this act mentions that in an action for slander of title, slander of goods or other malicious falsehood, it is not necessary to prove the special damage:

(b) If the words which caused the action are perceived to be calculated for causing damage in the business, trade, office, profession during the time of publication. 

The malicious statement can be further divided into two different forms i.e., slander of title and slander of goods. In slander of title the false and malicious statement about a person’s property or business and might not necessarily be related to his personal reputation, but is related to his title to property, his business or generally to his material interest, for example, a false statement that the defendant has a better title over the plaintiff’s goods or he has a lien over his goods is a slander of title. If the derogatory statement is related to goods, it will be known as slander of goods, for example, making some allegations of the goods being defective that are produced by the plaintiff. The ultimate effect of such a statement is to depreciate the value of the plaintiff’s goods. The law permits making statements, however false and malicious, i.e. when a trader claims that his goods are much better than those of his rival traders, but when there is false and malicious depreciation of the quality of another’s goods, an action can be brought. 

Malicious Falsehood distinguished from Defamation 

The wrong of malicious falsehood is somewhat similar to that of defamation because, in both these wrongs, the damage is incurred by the plaintiff, the reason being a statement made to a third person. However, these two wrongs are different from each other even if they are having similar properties. In the case of malicious falsehood, it is the pecuniary interests of the plaintiff which are affected, in defamation the plaintiff’s interest affected is the reputation. The essential ingredient in the wrong of malicious falsehood is the existence of an evil motive. Whereas for defamation, malice in the sense of an evil motive is not necessary. Malicious falsehood has a similar property with the wrong of deceit as well, which is, the false statement made by the defendant causes loss to the plaintiff. But these two wrongs can be distinguished on the basis that in deceit the false statement is made to the plaintiff itself and who suffers by acting upon it whereas in malicious falsehood, the false statement is made to a third party resulting in damage to the plaintiff’s pecuniary interests.

Passing off

Passing off is wrong in which a person uses deceptive measures for increasing his sales, to push up his sales in trade and to put up such an impression that these particular goods are of someone else. No person has the right to allow his goods to be showcased as of some other person. In other words, he has no right to represent his goods as somebody else. When a person uses the same name or even a similar name with that of the plaintiff’s goods, by which it appears as if they are the goods supplied by the plaintiff then the wrong of passing off has been committed. Even without proof of any knowledge of an intention to deceive, the defendant will be held liable. It is not necessary to prove the damages suffered by the plaintiff if it is proven that the defendant’s goods were made up as such or described by them which led the ordinary customers to mistake the goods of the defendant as that of the plaintiff.

The aim of the tort of passing off is complementary to the trademark law. It is to protect the goodwill which a commercial has earned so that no one can make the use of the same. In trademark, nobody can interfere with the right by using the mark, the registered trademark is the monopoly of a person. And in the case of passing off, it is the goodwill that is protected, which a trader has earned by his design, goods or trade name. 

Passing off distinguished from deceit 

1. In an action for fraud or deceit, the plaintiff is the one who is deceived by misleading statements, whereas in passing off, the plaintiff is not the one who is deceived but somebody else.
2. In an action for deceit, the plaintiff demands compensation in consequence for the loss suffered by him, whereas in an action for passing off, the plaintiff seeks to protect his goodwill, which is being threatened by deception, confusion or the probability of deception or confusion of others.
3. The wrong of deceit is constituted when the plaintiff has been deceived, whereas in passing off, the probability of the deception, confusion amongst others is enough. Therefore, in passing off, actual deception is not required to be proved.
4. In deceit the action can be brought only when the wrong has been constituted and completed, the action for damages is the only proper remedy available, whereas an action for passing off can be brought even if there is a likelihood of others being deceived or confused, the remedy of injunction is available here.

Elements involved for the tort of passing off 

Two elements are required for the tort of passing off:

1. A Certain name has been established and became distinctive with regards to the plaintiff’s goods, and
2. The use of that name by the defendant was for the purpose of deceiving and has caused confusion and injury to the business reputation of the plaintiff.

Case laws in the tort of the passing off

Nature of the tort of Passing off- In the case of Ellora Industries v. Banarsi Dass, AIR 1980 Delhi 254, Delhi High Court explained the nature of this tort in the following manner:

“The object of the tort of passing off is the protection of commercial goodwill; in order to ensure that no person exploits the business reputation of another. The law protects ‘goodwill’ against encroachment, as it is an asset and a species of property. This tort is based on the economic policy of encouraging enterprises and ensuring commercial stability. This secures a reasonable area of monopoly to traders. And hence, it is complementary to the trademark founded on statute rather than common law. The difference between statute law in relation to the trademarks and passing off action; the registration of the registered mark in itself gives title to the registered owner, whereas the onus of a passing-off action lies upon the plaintiff, he has to establish the existence of business reputation, distinctive name, and good-will which he seeks to protect. The asset that is protected is the reputation of the plaintiff’s business in the relevant market. It is a complex thing. It is displayed through various indications that lead a customer or a client to associate the business with the plaintiff, i.e., the name of the business, design, the mark, make-up, or color of the plaintiff’s goods, whether real or adopted, the distinctive characteristics of service he supplies or the nature of his special processes. And it is around encroachments upon such indications that passing off actions arise. What is protected is an economic asset.”

The facts of this case are, the plaintiffs Banarasi Dass and Brothers were having registered trademark ‘ELLORA’ and were selling clocks under this trade name since 1955. The defendants started manufacturing clocks with the trademark ‘Gargo’ printed on the dial of the clocks but on the cardboard box containing these clocks were printed with ‘ELLORA INDUSTRIES GARGON (PUNJAB)’. They adopted this as their trading style in 1962. The plaintiffs requested an injunction in order to restrain them from using their mark ‘ELLORA’ or any mark which is similar thereto, for preventing them from letting their goods being represented as the goods of the plaintiffs. As it was a clear case of passing off and also of infringement of the plaintiff’s registered trademark, the plaintiffs were entitled to the injunction.

In the case of Scotch Whiskey Association v. Pravara Sahakar,AIR 1992 Bom 294, 1992 (2) BomCR 219 the plaintiffs used various well-known Scottish figures or Scottish soldiers or Scottish Headgears or Scottish Emblems and market the distilled scotch whiskey all over the world. The act done by the defendants amounted to passing off their whiskey as that of the plaintiffs, as they were manufacturing whiskey in India, using the similar label, figures, carton, devises suggesting Scottish origin of the whiskey, and used the word “Scotch” along with the description “Blended with Scotch.” The court held that the defendants were liable and therefore an order of temporary injunction was passed. 

This is another case illustrating the tort of passing off, Kala Niketan, Karol Bagh, New Delhi (Plaintiff) v. Kala Niketan, G-10 (Basement) South Extension Market-1, New Delhi (Defendant), AIR 1983 Delhi 161, ILR 1981 Delhi 592, in this case, the plaintiff was having a business under the name of ‘Kala Niketan’, of selling sarees in Karol Bagh, New Delhi for more than 20 years. They had established a good reputation, name, and goodwill in the market and were having a turnover of several lacs in their business. The plaintiff had spent a huge amount on advertising and then had reached the position which he was having in the market. The defendant started the same trade as well as under the same trade name ‘Kala Niketan’ in the South Extension area, New Delhi.

It was held in this case, that the use of the disputed trade name ‘Kala Niketan’ was established and had achieved the status of a distinctive name for the plaintiff’s business. The use of the plaintiff’s trade name by the defendant was to deceive or most probably cause confusion and injure the business reputation of the same and hence, the plaintiff was entitled to a permanent injunction.

A similar decision was given in the case of M/s. Virendra Dresses v. M/s. Varinder Garments, AIR 1982 Delhi 482, 21 (1982) DLT 472, 1982 RLR 538, the plaintiffs were carrying on the business under the name and style of ‘Virendra Dresses’ of ready-made garments. After two years, the defendants started the same business in the same street under the name and style of ‘Varinder Garments’. The court held that these two trade names were similar, which would create confusion in the minds of people and would mislead therefore the plaintiff was entitled to an interim injunction till the decision of the court was passed. 

If the defendant showcases his goods in a similar design with that of the plaintiff although, with a different name, the wrong is still constituted if the public at large is accustomed to purchasing that article with the description of design and get-up rather than by its name. In the case of White Hudson & Co. Ltd. v. Asian Corporation Ltd., the plaintiff’s sold medicated cough sweets in the Singapore market under the name ‘Hacks’, in red cellophane wrappers, various customers of this product could not read English and be into the habit of asking for them as red paper cough sweets. The defendants started the same type of business by selling their cough sweets in red wrappers under a different name ‘Pecto’. The court held that the customers were being misled because of the same package. They were misled in taking the defendants’ product for that of the plaintiffs and the plaintiffs were entitled to an injunction against the defendants.

The important point which is required to be noticed in the tort of passing off is that the action for passing off is only available to the trader for protecting his proprietary right in his goodwill of business and not to the customers of such goods or services who claim of being deceived or confused, or the likelihood thereof, by the use of some particular mark by a trader or manufacturer.

Conclusion 

All these torts have a huge importance in the field of tort law as these are the wrongs which interfere in the contractual and business relations and consequently injure the pecuniary interests of the person i.e., business in relation to the actual/potential loss of clients, new business opportunities, existing and new business partners, etc resulting in huge financial loss. These wrongs are tortious as well as criminal in nature and have various aspects related thereto and therefore require many reforms for becoming much more ascertainable.

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