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 commencement of proceedings before Magistrate.
Introduction
The Code of Criminal Procedure,1973 is one of the oldest legislation that regulates the substantial criminal law in India. It mentions the various procedures and processes to be followed while conducting a criminal proceeding. Chapter XVI of The Code of Criminal Procedure deals with the commencement of proceedings before Magistrate. The Magistrate has to follow all the provisions provided in the chapter so that it will not be difficult during the proceedings.
Scope of the topic
The Magistrate in India has a lot of power to conduct criminal proceedings. The cases in the criminal procedure code are divided into two types namely: summary case and warrants case. The main difference between both of them is the punishment awarded. The offences in warrants case are usually awarded punishments like death, life imprisonment or imprisonment for up to two years. The offences which cannot be awarded punishments like the death penalty and life imprisonment can be tried under summary trials. This chapter deals with the commencement of the proceedings. When an accused is summoned to appear before the Magistrate under this chapter, then the complaint cannot be dismissed under Section 203. This chapter provides answers to various questions like the issue of process, the supply of a copy of statements and documents related to the investigation and it also deals with the procedure to be followed when there is a complaint case.
Scrutiny of the complainant before issues of process
The examination of the complainant is an initial process that strengthens the entire proceedings. This process adds credibility to complaints in the beginning stages. It is necessary to scrutinize the complaint before issuing the process. Chapter XVI would come into play only after this examination is over. The locus standi of the complainant is verified using this examination. The Magistrate will also verify whether the complainant would come under the exceptions provided in Section 195 to Section 199. The magistrate can issue the process without postponing: when the prima facie case is made out in the investigation. This process of scrutinizing the complainant has to be done by the Magistrate himself and not by the advocate, however, the concerned advocate can help in the process. Section 190 of the Code of Criminal Procedure provides the condition to take cognizance of offences by magistrates.
According to this section, the Magistrate can take cognizance when:
After receiving a police complaint;
After receiving complaints of facts which constitutes any offence;
After receiving information from any person other than a police officer, or upon his own knowledge, that such offence has been committed;
The Chief Judicial Magistrate can empower any Magistrate of the second class to take cognizance of offences which are within his competence to conduct an inquiry or a trial.
The Magistrate can scrutinize the complaint and examine it completely before issuing a process.
Examination of complainant
Section 200 of the Code of Criminal Procedure deals with the examination of the complainant. The magistrate after taking cognizance of an offence has to examine the complainant and witnesses present. This examination has to be done upon oath. The magistrate also has the duty to note down the relevant information found in such examination. The substance of such examination should be given in writing and that has to be signed by the complainant and the witnesses. The magistrate need not conduct this examination when:
If the complaint is made by a public servant who is acting or purporting to act in the discharge of his official duties or a Court;
If the Magistrate makes over the case for enquiry or trial to another Magistrate under Section 192.
If the magistrate in charge has examined the case and makes over the case for enquiry or trial to another magistrate, then the latter magistrate does not need to examine the cases again.
Inquiry or Investigation for further scrutiny of the complainant
Section 202 of the act provides further scrutiny of the complainant. The issuance of the process can be postponed if the Magistrate feels there is a need for further investigation. The Magistrate will decide whether there is a proper ground for conducting the proceeding. The scope of enquiry under this section is restricted to the ascertainment of truth or falsehood made out in the complaint.
Dismissal of complaint
Section 203 provides power to the Magistrate to dismiss a complaint. The Magistrate can dismiss the complaint if he is of the opinion that there are no sufficient grounds for conducting the proceedings. The Magistrate comes to this conclusion after conducting an appropriate inquiry or investigation under Section 202. The Magistrate can also dismiss the complaint if the processing fee is not paid properly and this ground of dismissal is mentioned in Section 204. In the case of Chimanlal v Datar Singh, it was said that the dismissal of a complaint is not proper if the Magistrate has failed to examine material witness under Section 202. The Magistrate can dismiss the complaint or can refuse the issue of the process when:
The Magistrate finds out no offence has been committed after the complaint is reduced to writing according to Section 200;
If the Magistrate distrusts the statements made by the complainant;
If the Magistrate feels that there is a need to conduct further investigation, then he can delay the issue of process.
Issuing a summons or warrant
Section 204 of this act provides the Magistrate power to issue a process if it is found that there are sufficient grounds for carrying out the proceeding. The Magistrate can issue a summons if it’s a summons case. A warrant is issued in case of a warrant case. The Magistrate can also issue summons to the accused in order to make him appear before the Magistrate concerned within a certain date. No process shall be issued by the Magistrate if there are any arrears in the payment of “process-fee” until the fee is paid within a reasonable time. No summons or warrants can be issued against the accused until a list of the prosecution witness has been provided. This section will not affect the provisions provided in Section 87 of the act. Section 87 enables the Magistrate to issue a warrant of arrest whenever it is necessary under this section.
Power to dispense with the personal attendance of the accused
Section 205 provides the Magistrate powers to dispense the personal attendance of the accused in certain situations. The Magistrate can dispense the personal attendance of the accused and permit him to appear by his pleader if there are proper reasons. The Magistrate can also direct the personal attendance of the accused in any stage of the investigation if it is necessary. The exemption from personal appearance cannot be claimed as a right but it is completely under the discretion of the court after applying relevant judicial principles. The Magistrate considers various factors to dispense attendance like:
Social status.
Customs and practice.
The distance at which the accused resides.
The necessity of personal attendance with regards to the offence and the stages of the trail.
Special summons in cases of petty offences
The Magistrate can issue some special summons in cases of petty offences according to Section 206 (2)For the purposes of this section,” petty offence” means any offence punishable only with a fine not exceeding one thousand rupees, but does not include any offence so punishable under the Motor Vehicles Act, 1939 or under any other law which provides for convicting the accused person in his absence on a plea of guilty. When a Magistrate takes cognizance of petty offences the case can be summarily dismissed according to Section 260, but sometimes the Magistrate will send the summons for the person to appear in person or by pleader when it is needed. The reason for such a decision has to be recorded.
Supply to the accused of copies of statements and other documents
It is essential to supply relevant documents to the accused so that they can understand the procedure followed and the status of the case. The documents supplied might also be used for future reference whenever necessary. The main need behind providing such documents is to avoid prejudice during the trial. The non-supply of materials by the Magistrate that is provided in Section 207 can be successfully used for setting aside a conviction.
Where the proceeding is instituted on a police report
Section 207 provides that the Magistrate has to provide certain copies of documents to the person accused when the proceedings are instituted on a police report. The documents must be provided free of cost. The necessary documents that have to be provided are:
The police report;
The First Information Report(FIR) which is recorded under Section 154;
The statements which are recorded Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses;
The confessions and statements that are recorded under Section 164 if available;
Any other relevant document which is forwarded to the Magistrate with the police report.
In the case of Viniyoga International New Delhi v. State, it was said that the accused is entitled to get copies of statements that are recorded under Section 161 and of the documents sought to be relied on by the prosecution. It was also said that it is mandatory to provide copies of challan to the accused. This section does not deal with how to handle the situation when some of the witnesses are not examined, but only provides furnishing of statements of the persons examined.
Where the proceeding is in respect of an offence exclusively triable by the Court of Session
The court has to provide certain documents to the accused when the offence is triable exclusively by the Court of Session according to Section 208. These documents should be provided when the case is not instituted based on the police reports. The documents are:
The statements recorded under Section 200 or Section 202 after the investigation by Magistrates;
Any documents that are produced before the Magistrate on which the prosecution proposes to rely;
The statements and confessions that are recorded under Section 161 or Section 164 if available.
The commitment of the case to Court of Session
Section 209 deals with the commitment of the case to the Court of Session. According to this section if a Magistrate feels that if the offence is triable exclusively by the Court of Session after instituting a case, then,
The Magistrate can commit the case to the Court of Session;
The accused can be remanded in custody until the proceedings are subject to the other provisions relating to bail;
The Magistrate can send evidence and other relevant evidence to the concerned court to carry out the proceedings;
The Magistrate can also notify the Public Prosecutor of the commitment of the case to the Court of Session.
Consolidation of cases
Section 210 deals with the procedures to be followed when there is a consolidation of cases instituted on a police report and on a complaint. The Magistrate can stay the proceedings of any inquiry or trial and call for a report on the matter from the police officer conducting the investigation if it is done in the same subject of inquiry. If the police report does not relate to any accused in the case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, according to other provisions in the code. If a report is made by the investigating police officer according to Section 173 and based on such report cognizance of any offence is taken by the Magistrate against any person who is accused, then the Magistrate shall inquire into or try together both the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.
Conclusion
This chapter is very essential as it deals with the commencement of proceedings. The provisions in this chapter have to be followed properly so that it regulates the other stages of the proceedings. The issue of proceedings is one of the important procedures in conducting a criminal investigation. The supply of copies of documents to the accused relating to the proceedings is also necessary. Thus, the provisions of this chapter have to be followed carefully so that it will not affect the other parts of the proceedings.
References
1998 CriLJ 267, 1997 (1) WLN 396.
LAWS(DLH)-1984-6-13
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I struggled a lot growing up – it was hard to speak my mind. I took to writing perhaps because it was harder for me to express myself in speech.
I still tried the grab every opportunity I could to speak before a crowd. I even won a competition once – by giving a speech about Netaji Subhash Bose, perhaps because too few people participated in it. In reality, I found it very hard to give a public speech though I wanted to.
I still joined law knowing that I would have to sort out my public speaking issues somewhere during my law school journey.
However, first-year debating competition was a nightmare. I didn’t even manage to submit a memo for the intra-university moot court competition. I tried to raise my hand in the class all the time and tried to speak, and while some teachers were patient, my batchmates didn’t think very highly of me. Some of them made it a point to make fun of my pronunciation, wrong grammar and thick Bengali accent all the time.
I wasn’t affected though. I knew I would speak very well someday and I kept trying. However, it wasn’t really working.
Every time I spoke in public, I would have my thoughts messed up, nervous energy running through my body like electricity and making me stunned and stupified, not able to react to the situation as I would have liked to.
The break came when I started teaching.
Teaching is a kind of public speaking too. But it’s quite different, because the teaching does not happen for the benefit of the teacher, but for the benefit of the students.
Teaching allowed me to get out of my head. I was not in the focus anymore. Talking was not about my own glorification! It was all about adding value to the students. I had to worry about their success, not my own. That was a huge difference!
Being anxious about the success of my students meant that I had no time to be anxious about my own self, small mistakes, slip-ups, shortcomings. Rather, I had to focus on and work towards making the person in front of me get what he was there to get!
This is a game changer.
Many of us have spent years trying to be interesting. The trick is to take a great interest in other people instead. That changes everything.
Stop worrying about how you are going to find a client, how you are going to be successful, or whether you are doing the right things. That’s too insignificant to worry about.
Instead, worry about how you can add value to your clients. That’s the only real game in town. If you are the kind of lawyer who is worrying about adding maximum value to your clients, that the right place to start from.
When we focus on not ourselves but others who benefit from us, we make everything simpler. We increase the chances of our success manifold.
If you get a chance to speak before an audience, do not worry about what will make you look or sound better, but worry about how you are going to add more value than your audience can even imagine.
If you are writing an article, and you are not thinking of who it is intended for and how reading your article will add a lot of value to them then you have already failed.
If you are building a product and you are not obsessed about why this product is going to be 10 times better than anything else in the market, then why are you even building the product?
If you are a lawyer and you are not always bothering about how you can add more value to the bar, to the judge when you are speaking before him or her or if you are not obsessed about how you are going to add more value to your clients you should perhaps reconsider your profession.
And yet, most lawyers don’t really work or think along those lines, focusing on extracting benefits from clients instead. Such strategy may work in the short term, but not so good in the long run.
The only reason we have had any success with LawSikho is because we fanatically put our efforts and focus on the success of our learners. We have even began to track what they state as their goal for joining a course and tracking the same for them.
When a learner does not study the course, for no apparent fault of ours, we do not wash off our hands and say good riddance. We follow up with them, call them up, and try to understand what we can do to make it possible for them to complete a course and succeed according to their own definition.
And that helps us to grow, more than any marketing, more than any packaging, and more than any advertising we could run.
How are you going to implement this strategy in your life? Respond and let me know.
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Reserve Bank of India (RBI) is the biggest financial institution in India. All others dwarf in size, power and capability. It steers the economy of India, holding the destiny of 140 crores inhabitants at its command. The ‘Godfather’ to all other financial institutions that exist or those that shall come into existence in the future. A nation may have the most lethally equipped and determined armed force in the world, but if it does not have an equally strong economic power to sustain this force; it is but a deceptive illusion.
Thomas Jefferson president of USA is quoted to have said in 1800’s, “I sincerely believe that banking establishments are more dangerous than standing armies, and that the principle of spending money to be paid by posterity, under the name of funding, is but swindling futurity on a large scale.” Implying both to its might and the importance of regulating the economic wellbeing of a country. Consequently, it is paramount to maintain a healthy balance between regulation and economy.
Every human being who has lived on this earth has at one-time or the other desperately needed financial assistance either to fight off a crisis beyond his control or to enrich himself further. For both purposes, financial assistance is required. Without any doubt, it will be ideal to seek financial assistance from a legally established financial institution than to be left at the mercy of ubiquitous money lenders locally called mahajan, sahukar etc. The latter provide succor, but after gaining their pound of flesh.
For a welfare state like India, it is the Government’s solemn duty to provide financial assistance easily, at affordable prices and within walking distance of where the most impoverished population resides. “Out of the total population living in the rural parts of 35 states and UTs of India, 25.7 per cent of them is living below the poverty line, according to Reserve Bank of India (Sharma, 2019).” It will be a mammoth task for the government alone or its welfare schemes to uplift all below the poverty line. So, it is the financial institutions that will provide an opportunity to escape poverty, for those willing to help themselves. Noble prize winner, Muhammad Yunus, Bangladeshi social entrepreneur, banker, economist and civil society leader has summed it aptly, “People.. were poor not because they were stupid or lazy. They worked all day long, doing complex physical tasks. They were poor because the financial institution in the country did not help them widen their economic base.”
Reserve Bank of India (RBI)
The premier financial institution of India RBI was formed under the Reserve Bank of India Act, 1934, and nationalized in the year 1949. The preamble of RBI reads as follows:
“to regulate the issue of Bank notes and keeping of reserves with a view to securing monetary stability in India and generally to operate the currency and credit system of the country to its advantage; to have a modern monetary policy framework to meet the challenge of an increasingly complex economy, to maintain price stability while keeping in mind the objective of growth.”
Breaking into simple terms it envisages:
Issues Notes.
Maintaining reserves, to ensure stability. Ref. to Exchange management.
Operation of currency and credit system. Ref. to Controller of Credit.
Practice modern monetary policy.
Maintaining price stability to aid growth
Therefore, after setting such high standards for itself it is even more incumbent upon RBI that all financial institutions sanctioned by it perform equally well. And in order to regulate them it conceptualizes and recommends to the legislature for all kinds of statutory norms, regulations, rules, and issues from time-to-time directions / guidelines it deems necessary so that the highest standards of Corporate Governance are maintained.
RBI is the administering authority to enforce the following acts: –
Reserve Bank of India Act, 1934.
Government Securities Act, 2006.
Government Securities Regulations, 2007.
Banking Regulation Act, 1949.
Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
Credit Information Companies (Regulations) Act, 2005.
Payment and Settlement Systems Act, 2007.
Payment and Settlement Systems Regulations, 2008 and amended up to 2011and BPSS Regulations, 2008.
The Payment and Settlement Systems (Amendment) Act, 2015.
Factoring Regulations Act, 2011.
The Insolvency and Bankruptcy Code, 2016.
Other relevant Acts administered by RBI: –
Negotiable Instruments Act, 1881
Bankers’ Books Evidence Act, 1891
State Bank of India Act, 1955
Companies Act, 1956/ Companies Act, 2013
Securities Contract (Regulation) Act, 1956
State Bank of India Subsidiary Banks) Act, 1959
Deposit Insurance and Credit Guarantee Corporation Act, 1961
Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970
Regional Rural Banks Act, 1976
Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980
National Bank for Agriculture and Rural Development Act, 1981
National Housing Bank Act, 1987
Recovery of Debts Due to Banks and Financial Institutions Act, 1993
The Industrial Development Bank (Transfer of Undertaking and Repeal) Act, 2003
The Industrial Finance Corporation (Transfer of Undertaking and Repeal) Act, 1993
Banking Laws Act, 1956 & 1963
RBI has the dual responsibility to regulate and supervise the financial system in the country. Empowered with the various acts and regulations at its disposal it sanctions the establishment of new financial institutions and controls their functioning. They are categorized as follows:
Scheduled Banks
State Co-operative Banks
Commercial Banks
Public Sector Banks
Private Sector Banks
Non-Scheduled Banks
Commercial Banks
Central Co-operative Banks & Primary Credit Societies
Some of the important financial institutions are:
National Bank for Agriculture and Rural Development (“NABARD”)
Small Industries Development Bank of India (“SIDBI”)
EXIM Bank
National Housing Bank
Life Insurance Corporation
Unit Trust of India
Major functions of RBI
Issues Notes
Issues the legal tender rupee of India in every denomination except for one-rupee note and coins. Thus, preserving the faith of the public in the paper currency. At all times it holds a minimum reserve of Rs.200 Crores i.e. Rs. 115 crores are backed by gold, and 85 crores in the form of foreign securities against the currency issued.
Banker’s Bank
It holds a part of cash reserves of commercial banks and lends funds for short periods. By fixing the cash reserve ratio reserve bank controls credit and inflation. Empowered vide numerous regulations mentioned above reserve bank controls the activities of all financial institutions.
Banker to the government
It handles all banking facilities for the Central Government and the State Governments. Accepts and pays money, carries out exchange remittances. Lender to the Government of India. Short term credit needs of the government are met by issuing treasury bills and long term by bonds. Deals with the IMF and World Bank on behalf of the government. Advisor to the government on all matters relating to banking, financial, mobilization of resources, credit, economic issues and international finance.
Exchange management
At all costs external value of rupee is to be maintained. It is directly related to internal stability, economy and monetary affairs. RBI is vested with the power of managing the investment and utilization of the reserves mostly held in the form of monetary gold, foreign assets etc, in the most advantageous manner.
Lender of Last Resort
It comes to the rescue of commercial banks to tide over financial difficulties.
Controller of Credit
Has the all-important control oversupply of money and bank credit. Thus, supervising price and exchange rate stability. To achieve its end bank rate is adjusted accordingly.
Since the availability of credit at desirable rates is hugely important to sustain growth, and equally important to protect the creditor. Credit is controlled in accordance with the economic priorities of the government. Therefore, to keep pace with the modern world and restore the faith of the international community pertaining to ease of business parameters and investments, insolvency bankruptcy code was enacted. Though RBI has a plethora of regulations at its disposal, we shall peep into IBC only.
Insolvency and Bankruptcy Code, 2016 (IBC)
Insolvency is the inability of an individual or entity to pay its debts when they fall due. Or simply put when liabilities exceed assets. Even after selling or mortgaging of the assets, debt still cannot be resolved. While bankruptcy is the legal procedure that comes into operation if insolvency is not resolved. This can happen at the asking of either the creditor or debtor. Once all assets of the debtor have been liquidated and proceeds paid to creditors. The adjudicating authority may debar creditors from pursuing recovery proceedings thereafter.
Why IBC?
Earlier insolvency was dealt under Presidency Towns Insolvency Act, 1909 and Provincial Insolvency Act, 1920. It was applicable only to individuals and partnerships; corporations were excluded. This was followed by Companies Act, 1956, Sick Industrial Companies (Special Provision) Act, 1985 (SICA), Recovery of Debts due to Banks and Financial Institutions Act, 1993 (RDDBFI), Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFESI), and Companies Act, 2013. However, non-performing assets of banks and non-banking financial institutions kept mounting. Perhaps due to multiplicity of laws and judicial forums; recovery proceedings kept on lingering endlessly. Recovery of legitimate debts remained complex and time-consuming process. To give an example in Jeevan Diesels vs. Hongkong Shanghai Banking Corporation decided by Calcutta High Court, 02.12.2014. High court had to decide on the question that could one creditor move a winding-up petition, while the other initiated enforcement action before the DRT under RDDBFI Act. Meaning thereby that the same matter was agitated before the High Court and DRT at the same time but by different creditors. Many more such incidents led to the enactment of IBC.
The Insolvency and Bankruptcy Board of India is the implementation authority of IBC, and National Company Law Tribunal (NCLT) andDebt Recovery Tribunal (DRT) are the adjudicating authorities. NCLT hears cases involving incorporated Public and Private companies and Limited Liability Partnership firms while DRT is tasked with individuals and partnership firms. Decisions of NCLT can be challenged before the National Company Law Appellate Tribunal (NCLAT),and the last appeal lies before the Apex Court of India. Under this code matters pertain to insolvency, liquidation, voluntary liquidation or bankruptcy. Creditor as defined under this code means, “any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree holder.”
Salient features of IBC
Briefly:
To resolve matters in a time bound manner.
Maximize value of assets.
Balance the interests of all the stake holders.
Ensure availability of Credit.
Sections 6 – 32 under Chapter II of IBC deal with ‘Corporate Insolvency Resolution Process’. On corporate debtor’s default in paying due debt anyone i.e. financial creditor, operational creditor or the debtor himself may apply to resolve the insolvency before NCLT. Within 14 days of receiving the application, the adjudicating authority shall pass orders whether to accept or reject the application. In case of any deficiency on the part of the applicant additional 7 days can be afforded to rectify the defect.
From the date of admission of the application the insolvency resolution process is mandated to be completed within 180 days. However, if the circumstances so demand the resolution professional could request more time, and if the adjudication authority deems fit time can be extended, maximum 90 days.
On admission of the application a moratorium is declared, which prohibits the following acts:
Pending legal proceedings before any court of law, tribunal, arbitration panel or other authority ceases nor can any new proceedings begin against the corporate debtor.
Corporate debtor is barred from transferring, encumbering, alienating, disposing, or creating any legal right or beneficial interest w.r.t. his assets.
SARFESI Act, cannot be enforced, nor can any owner or lessor recover his property which is in the possession of corporate debtor.
Moratorium shall continue until completion of resolution process. Besides order of moratorium public announcement is made inviting claims from creditors. An interim resolution professional is appointed, and he shall manage the affairs of the corporate debtor to the exclusion of all others. Relevant information is collated from the authorities concerned and claimants. Details of assets in any form and manner are tabulated, and where necessary control and custody is exerted. All concerned personal are statutorily required to cooperate. After gathering all the information, a committee of creditors is formed, and meeting called within 7 days. Committee of creditors may decide to continue with the interim resolution professional as resolution professional or appoint a new one by a majority vote of 75%. Even the newly appointed resolution professional can be replaced later at the discretion of the committee of creditors.
Resolution professional shall be singularly responsible to conduct the smooth functioning of the entire process in a time bound manner and monitor the operations of the corporate debtor’s business. He shall invite offers from prospective lenders, investors, and any other persons with his resolution plans.
Once an information memorandum is prepared, a copy of it shall be supplied to the resolution applicant with all other relevant information that he shall desire. The resolution plan is then submitted to the committee of creditors for approval. It requires approval by no less than 75% vote. On approved resolution plan shall be submitted to the adjudicating authority. If it meets all the legal requirements the adjudicating authority shall pass orders binding all the parties for its execution. Any person aggrieved by the order has the remedy to appeal before the National company law Appellate tribunal. The procedure explained above with slight variations is also applicable to LLPs, partnership firms and Individuals.
liquidation
It is covered by Chapter III of IBC sections 33 – 54. If for any reason insolvency resolution process fails; the adjudicating authority shall order liquidation of the corporate debtor. The insolvency resolution professional already appointed shall function as liquidator. He shall sell the immovable and movable property vide public auction or private contract. He possesses the power to transfer the auctioned assets to any person or body corporate to realize the debt. Similarly, he shall have the power to draw, accept, make and endorse any negotiable instruments including bill of exchange, hundi or promissory note in the name and on behalf of corporate debtor. Proceeds from liquidation shall be distributed in the following order of priority.
Expenses of insolvency resolution process and liquidation.
Payments of workmen; secured creditors who relinquish security interest.
Financial debts owed to unsecured creditors.
Central and state government dues.
Secured creditors for any amount unpaid following the enforcement of security interest.
Remaining debts and dues.
Preference shareholders or partners.
Equity shareholders or partners.
If after liquidation nothing remains the corporate debtor shall be dissolved on the orders of the adjudicating authority.
Chapter VII of IBC enlists offences and penalties that shall apply to corporate debtor when he does any act prior to commencement of resolution process or during to conceal, defraud, destroy, gift, mutilates or falsifies accounts, alienates, alters, pawns, pledges, encumbers any of his assets to deprive the creditors of their legitimate dues.
As per Business Standard dated 03.12.2019: “As many as 10,860 cases under the Insolvency and Bankruptcy Code were pending before the National Company Law Tribunal (NCLT) at the end of September 2019, Parliament was informed on Tuesday (India, 2019).”
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The article has been written by Ayush Verma, a 2nd-year student at RMLNLU, Lucknow. The article discusses the arrest and detention under the CPC and various provisions related to it.
Introduction
A decree is passed by the court under the Code of Civil Procedure (hereinafter referred to as CPC) to decide the rights and liabilities of the persons in a matter of controversy. The person in whose favour a decree is passed is called decree-holder and against whom the decree is passed is judgement debtor. There are various ways under civil law by which a decree can be passed. One such way is “arrest and detention”. The law relating to arrest and detention in the CPC has been dealt with under Section 51 to 59 and Rules 30 to 40 of Order XXI.
Nature and scope
The provision is remedial in nature. It seeks to provide a remedy to the decree-holder where a suit has been decided in his favour. Such a remedy can be in the form of arrest and detention of the judgement debtor if he fails to satisfy the decree passed against him.
The provision applies to every person against whom the decree is passed under the Code. When a decree is passed in favour of a person, then that person has to move to the court for execution of that decree. The court then according to the provisions of the Code can order for arrest and detention of the judgement debtor.
When arrest and detention may be ordered?
Under Section 51(c) of CPC, it is given that when a decree-holder moves to the court for executing a decree, the court can execute such decree by the arrest and detention of the judgement debtor.
The decree for arrest and detention may be passed in the following cases given under Order XXI:
Under Rule 30, a decree for the payment of money can be executed by the arrest and detention of the judgement debtor.
Under Rule 31, where the decree is for a specific moveable party, it can be executed by the arrest and detention of the judgement debtor.
Under Rule 32, where the decree is for specific performance of the contract or an injunction, the court can execute the decree by arrest and detention of the judgement debtor.
Who cannot be arrested?
There are certain classes of persons that are exempted from arrest and detention under the various provisions of CPC. Such persons include:
Classes of persons, whose arrest according to the State Government, might be attended with danger or inconvenience to the public, under Section 55(2), and
Where the decretal amount is less than two thousand rupees, under section 58(1A).
Procedure to be followed
The procedure to be followed for arrest and detention is provided under Section 55. It says that a judgement debtor can be arrested at any hour or any day during the execution of a decree, and after such arrest, the person must be presented before the court. However, there are certain restrictions regarding entry and time. They are as follows:
That no dwelling house shall be entered after sunset and before sunrise.
That no outer door shall be broken in order to enter the house unless such a house is the occupancy of the judgement debtor, in case he refuses to prevent access thereto.
Where the room is in occupancy of a woman who is not the judgement debtor and does not appear in public due to the customs, the officer shall give reasonable time and facility to her to withdraw therefrom.
Where there is a decree for the payment of money, and the judgement debtor pays the full decretal amount and the costs of the arrest to the arresting officer, he shall not be arrested.
Notice
Under Order XXI Rule 37, a person who is to be arrested shall be given a show-cause notice to appear before the court and give reasons as to why he should not be committed to the civil prison in execution of the decree. However, such notice is not necessary if the court is satisfied, by affidavit or otherwise, that the effect of delaying the execution can lead to absconding of the jurisdiction by the judgement debtor. If the judgement debtor does not appear before the court after serving of the notice, if the decree-holder so requires, the court shall issue a warrant to arrest such person.
The objective of serving notice is to prevent the arrest and detention of an honest debtor who is not able to pay the debt due to some sufficient cause. The procedure of giving show cause notice is the acknowledgement of the rule of natural justice that any person shall not be condemned unheard.
Under Order XXI Rule 40, it is stated that if the person appears before the court after the issuance of the notice as given under Rule 37, the court shall hear the decree-holder for the execution of the decree and then give the chance to the judgement holder for showing as to why he should not be arrested.
Where a judgement debtor appears before the court and shows the reasonable cause for his inability to pay the decretal amount and the court is satisfied that he is unable to pay, the court may reject the application of the arrest. However, if the judgement debtor could not satisfy the court against the order passed against him for arrest and detention, the court may commit him to the civil prison, subject to the provisions of the code.
It has been held in the case of Mayadhar Bhoi v. Moti Dibya, where a money decree has not been paid by the judgement debtor within thirty days since that order was made, the court on the application by the decree-holder require the judgement debtor to give an affidavit stating the particulars of his assets, and if the person disobeys such order, he can be detained for three months.
Where an inquiry has been passed in accordance with subrule 1 of Order XXI Rule 40, the court may after the conclusion of the inquiry, subject to the provisions given in Section 51 and to the other provisions of the code, order the person to be committed to the prison and shall order for arrest of the person if he is not already arrested.
Power and duty of the court
Section 55 states that where a judgement debtor is arrested in execution of a decree for the payment of money and is presented before the court, the court shall inform him to declare himself as insolvent and he can be discharged if he has not done any act in bad faith regarding the subject of the application and if he complies with the law of insolvency which is in force at that time.
According to Order XXI Rule 39, a judgement debtor shall not be arrested for the execution of the decree unless the decree-holder deposits the amount to the court, fixed by the judge, for the subsistence of the judgement holder, from the time of the arrest until he is brought to the court. And where such person is committed to the civil prison, the court shall fix the subsistence as a monthly allowance according to Section 57, or where such scales are not fixed, the court shall fix as it considers sufficient for that class of the person.
In the case of Amulya Chandra v. Pashupati Nath, the court held that if the judgement debtor despite having means to pay the decretal amount refuses to pay, he can be detained. However, it must be checked whether such a person has means to pay and refuses to pay the amount in bad faith. These provisions were widely explained in the case of Jolly George Verghese v. Bank of Cochin, where Justice Krishna Iyer stated that a simple default is not enough, there must be an element of bad faith beyond mere indifference to paying; some deliberate refusal or the present means to pay a decree or a substantial part of it.
Section 51 says that an order for detaining a person shall not be passed unless, after the person has been provided with an opportunity of showing cause why he should not be arrested, the court for reasons recorded in writing must be satisfied:
That the judgement debtor with the object of delaying the execution of the decree is likely to abscond of the jurisdiction of the court or has dishonestly transferred, concealed or removed his property, or has done any other act done in bad faith, or
That the judgement debtor has the means to pay the amount or a substantial part of it and refuses to pay the same, or
That the decretal amount has to be paid on account of the fiduciary relationship.
Period of detention
Section 58 specifies the period for which a person can be detained, which is decided according to the amount of the decree which has been passed against him by the court, and where he has failed to pay that decretal amount. It says that a person cannot be detained for more than three months if the decretal amount exceeds five thousand rupees and, for an amount between two thousand to five thousand rupees, such detention cannot exceed six weeks. If the amount does not exceed two thousand rupees, no order for detention of the judgement debtor can be made.
Release of judgment-debtor
Under Section 58, every person who has been detained in civil prison shall be released before the said period of detention on the following grounds:
Where the decree against him has been fully satisfied,
Where the amount mentioned in the warrant for his detention has been paid to the police officer,
Where the person on whose application the person was detained requests so, or
Where the person on whose application such detention was made omits to pay subsistence allowance.
Section 59 provides that a warrant issued by a court for the arrest of the person can be cancelled anytime if there is some serious illness to the judgement-debtor. And if such arrest has already been made, and it appears to the court that the person is not in a fit state of health to be in prison, may order for his release.
Where the judgement debtor has been committed to prison, he may be released:
By the State Government, if there exists some infectious or contagious disease, or
By the court which granted the execution;
Or any court which is superior to the above court, on the grounds of serious illness.
This provision shall be applied liberally since it is a beneficial provision.
Also when a person is released after the completion of the period of the arrest given under Section 58, the person is not discharged from his duty to pay the decretal amount to the decree-holder.
Where a person intends to apply to be declared as an insolvent in accordance with Section 55, and furnishes security to the satisfaction of the court, that he will apply for being insolvent within one month and that he will appear when called for the proceedings related to the insolvency application or for the execution of the decree of which he was arrested, the court can release him for such period and if he fails to apply for the application and to appear, the court can direct the security to be realized that was given by him or commit him to prison.
Where an inquiry is pending under subrule 1 of Order XXI Rule 40, the court can order the release of the judgement debtor, upon its discretion if the judgement debtor furnishes the security to the satisfaction of the court for his appearance before the court.
Also, the court in order to give the opportunity of satisfying a decree to the judgement debtor, before ordering the detention of the person, under subrule 3 of Order XXI Rule 40, can provide fifteen days to the judgement debtor for satisfying the decree, by leaving the person in custody of the police officer or may release him on furnishing security to the satisfaction of the court, on the condition that the person will appear after the expiration of the specified period if the decree is not satisfied before the end of the period.
Where the court does not make an order of detention under subrule 3 of Order XXI Rule 40, it can refuse the application and if the judgement debtor is already under arrest, order for his release.
Re-arrest of judgment-debtor
Any person that has been released on grounds of serious illness in accordance with Section 59 can be arrested again but the period of detention in aggregate should not be more than that prescribed by Section 58.
Any person whose period of arrest has been completed as given under Section 58 cannot be arrested again under the decree in execution of which he was detained in the civil prison.
Any person that has been released in accordance with Order XXI Rule 40 can be re-arrested.
Conclusion
The purpose of arrest and detention is to give relief to a decree-holder and commit the judgement debtor to the civil prison if he does not pay the decretal amount despite having means to pay the same. However, it also protects honest debtors, where his inability to pay is supported by a reasonable cause. The court has to afford the right to be heard to the debtors in order to ensure proper justice.
References
M.P Jain, The Code of Civil Procedure, 2nd edition (2007).
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This article is written by Shristi Suman, a second-year student of Symbiosis Law School, Hyderabad. In this article, several provisions of the Child Labour (Prohibition and Regulation) Act, 1986 have been discussed.
Introduction
The Government of India had promulgated the legislation of The Child Labour (Prohibition and Regulation) Act, 1986 to regulate provisions related to child labour practices in India. The Government made substantial changes in the provisions of the Act in the year 2016 and from thereon a complete prohibition has been imposed on the employment of children who are below the age of 14 years. Many provisions have been made under the Act regarding the employment for the children who are above the age of 14 years.
The Declaration of the Rights of Child, 1959
Declaration of the Rights of the Child, 1959 was adopted by the United Nations General Assembly. The rights of the children were defined for the first time by the Declaration of the Rights of Child, 1959. The Declaration was drafted by Eglantyne Jebb and is also known as the Geneva Declaration of the Rights of the Child. The Declaration is a document that consists of the rights of children. It was first adopted in 1924 by the League of Nations and then in 1959 by the United Nations. The Declaration includes the following rights:
The child must be provided all those means which are essential for their normal development.
If a child is found to be hungry or sick then the child must be fed and nursed.
If a child is backward or delinquent then the child must be helped and recovered.
In case the child is an orphan or abandoned then shelter should be provided to the child.
In times of distress, relief must be provided to children first.
The children must be protected from every kind of exploitation when they are put in a position to earn a livelihood.
The children must be made conscious of the fact that the talent they possess should be devoted to the service of their fellow men.
This document was endorsed by the League of Nations General Assembly in 1924 as the World Child Welfare Charter. It was reaffirmed in 1934 by the League of Nations General Assembly.
The International Convention on the Rights of the Child, 1989
The International Convention on the Rights of the Child, 1989 is a human rights treaty that includes the rights of children which are related to civil, political, social, health and cultural rights. A child is defined by the Convention as a human being who is under the age of eighteen years unless the law applicable to the child specifies a different age clause for the age of majority.
The Nations which ratified the Convention are bound to follow it under international law and compliance of the same is checked by the UN Committee on the Rights of the Child. The Nations that have ratified the Convention are required to report to the United Nations Committee on the Rights of the Child. The Committee checks on their advancement in the implementation of the Convention for providing rights to children in their respective Nations.
The Convention works for the basic needs and rights of children in order to protect their interests. A child has a right to life which includes the right to identity, and the right to be raised by both parents even in case they are separated. The Convention works towards preserving such rights of children by putting an obligation on parents to perform all their responsibilities towards their child as parents. The Convention protects children from any kind of exploitation and excessive interference.
The disputes which involve a child have to be tried separately with care and the child’s viewpoint has to be heard in such cases. Courts are not allowed to sentence a child with capital punishment. It is an obligation of Nations to ensure that no child is sentenced with cruel or degrading forms of punishment.
Rights of Child and the Indian Constitution
According to the Indian Constitution, the rights are ensured to the citizens of the country. The children are also given rights under the Constitution as they are considered citizens of the country. Considering their special status, special provisions are made for children under the Constitution. The Government can make special provisions for the protection of the rights of children.
The leading amendment made for the protection of the rights of children is the 86th Constitutional Amendment i.e. Right to Education. Right to Education was made a Fundamental Right in order to protect the basic right of children to receive an education. 86th amendment guarantees the following:
The right to free elementary education that was made compulsory under Article 21 A of the Indian Constitution.
Right to protection till the age of fourteen years from any kind of hazardous employment which is provided under Article 24 of the Indian Constitution.
Article 39(e) of the Constitution protects children from any kind of abuse or forced employment which is not suitable for their age and ability.
The children are provided with equal opportunities, facilities, freedom, dignity, and protection under Article 39 (f) of the Indian Constitution.
Article 45 of the Constitution ensures early childhood care and education to the children until the age of 6 years.
Besides the special provisions which are made under the Constitution, the children also have equal rights as any other adult citizen of the country.
Prohibition of Employment of Children in certain occupations and processes
Child Labour (Prohibition and Regulation) Act, 1986 aims to eradicate any kind of child abuse in the form of employment and prohibit the engagement of children in any kind of hazardous employment, who have not completed 14 years of age. The Act prohibits the employment of children in certain occupations and processes. The occupations which are prohibited are mentioned in the Act under the Schedule in Part A. The prohibited occupations for children under 14 years are:
Occupations that are related to the transport of passengers, goods or mails by railway;
Cinder picking, clearing of an ash pit or building operation in the railway premises;
Working in a catering establishment which is situated at a railway station and if it involves moving from one platform to another or from one train to another or going into or out of a moving train;
The occupation which involves work related to the construction of a railway station or any other work where such work is done in close proximity to or between the railway lines;
Any occupation within the limits of any port;
Work which involves the selling of crackers and fireworks in shops having a temporary license;
Working in Slaughterhouses.
Prohibited processes for children under the age of 14 years are mentioned under the Schedule in Part B. They are as follows:
The process involving the making of Bidi;
The process which involves carpet-weaving;
Manufacturing cement or bagging of cement;
The processes such as Cloth printing, dyeing, and weaving;
The processes that involve the manufacturing of matches, explosives, and fireworks;
Mica-cutting and splitting;
Any manufacturing process such as shellac manufacture, soap manufacture, tanning;
The process of wool-cleaning;
Work that is related to the building and construction industry;
Manufacture of slate pencils;
Manufacture of products from agate;
Manufacturing processes in which toxic metals and substances such as lead, mercury, manganese, chromium, cadmium, benzene, pesticides and asbestos are used;
Cashew and Cashew Nut descaling and processing;
Soldering processes in electronic industries.
The Act in total prohibits approximately 13 occupations and 51 processes for the employment of children. Article 24 of the Indian Constitution includes the provision for the prohibition of employment of children in factories. The Act also lays down certain guidelines for employers, which is to be followed in case the employee is a child of age less than 14 years. According to the Act, the employer cannot make a child employee work between 7 p.m. and 8 a.m. and no overtime is allowed for them. It is not allowed for an employer to make a child work for more than 3 hours without an interval of at least one hour and in total, an employer should not make a child work for more than six hours a day. Adequate provisions must be made by the employer for the health and safety of the child employees. Basic facilities such as drinking water, toilets, disposal of waste, ventilation, etc must be provided by the employer. The employer needs to notify the Factory Inspector if in case he employs a child for employment. Production of age certificate of the child employee is also needed according to the rules of the Act.
Power to amend the Schedule
The Central Government has the power to amend the Schedule after giving notification in the Official Gazette. The notification for such amendment must be given in advance of not less than three months. The notice can be given by notification to add any occupation in the schedule or any process to the schedule. After such notice is provided to Official Gazette to add any occupation or process, it is deemed to be amended accordingly.
Child Labour Technical Advisory Committee
The Central Government may, if it thinks it to be necessary can constitute an advisory committee i.e. the Child Labour Technical Advisory Committee by giving notification about it in the Official Gazette. It is the duty of the Committee to advise the Central Government if there’s a need to add occupations or processes to the Schedule. The Central Government appoints the members of the Committee but the Committee should not exceed more than 10 members. The Committee shall also consist of a Chairman. There isn’t any limitation on the number of meetings Committee shall have. The Committee shall meet whenever they feel necessary and the meetings shall be regulated according to the procedure which shall be decided by them.
The Committee may itself constitute one or more sub-committees if they feel a need to do so.
The Chairman and other members of the Committee are entitled to an allowance.
Regulation of Conditions of Work of Children
There are certain regulations provided under the Child Labour (Prohibition and Regulation) Act, 1986 which the employer needs to follow while employing a child in the establishment. Proper work conditions are to be provided by the employer.
The provisions of this Part of the Act shall apply to an establishment or any class of establishments in which the occupations or processes which are referred to in Section 3 are not being carried on.
Hours and period of work
As per the Act, no child employee shall be allowed to work in any establishment in excess of the number of hours that have been decided on and prescribed for such an establishment or class of establishment. The number of hours shall be fixed by the establishment and the child employee must not be allowed to work for more than three hours without a break of one hour. The total number of hours of work for a child employee shall not exceed six hours. Six hours shall also include one hour of interval. According to the Act, the employer cannot make a child employee work between 7 p.m. and 8 a.m. and no employer must permit the child employee to work overtime. If a child has already worked in an establishment in a day, then such a child must not be permitted to work in another establishment on the same day.
Weekly Holidays
Every child who is employed in an establishment shall mandatorily be allowed a holiday each week. The holiday must be for a whole day. The day of the week must be decided on which it would be a holiday for the employees of the establishment and the notice regarding the same must be exhibited in a conspicuous place of the establishment. The notice should be of a permanent nature and should not be altered more than once in three months.
Notice to Inspector
Notice is needed to be sent to the Inspector within whose local limits the establishment is situated by the employer of such establishment if he employs a child employee or by the occupier of an establishment in which a child is employed or is permitted to work. The notice to be sent must be in writing. It must contain the following particulars:
the name of the establishment and place in which it is situated,
name of the person who manages the establishment,
the postal address of the establishment,
the details such as the nature of occupation or process which is carried on in the establishment.
Every employer who permits a child to work in his establishment is needed to send a notice within 30 days to the Inspector within whose local limits the establishment is situated. Where a process is carried on by the occupier with the aid of Government or it receives assistance or recognition from Government for it then such establishment shall not be subject to the provisions of Section 7, 8, 9 of the Act.
Dispute as to age
In case if a question arises between an Inspector and an occupier on the age of the child who was permitted to work by the occupier in an establishment then the Inspector can prescribe a medical authority to decide on the age of such a child in case of absence of an age certificate.
Maintenance of register
The occupier shall maintain a register which shall include information with respect to children who are employed or permitted to work in his establishment. The register which is made available by the occupier for inspection at all times shall contain:
The name and date of birth of the children who are employed by the occupier;
Number of hours and period of work for which the child employee is made to work;
The nature of employment and the work which the child employee is made to do;
Other particulars which may be prescribed.
Display of notice containing abstract of Sections 3 and 14
The notice containing abstract of Sections 3 and 14 of the Act shall be displayed by every occupier of the establishment in a conspicuous and accessible place of the establishment and in case the employer is a railway administration or a port authority then the notice must be displayed in a conspicuous and accessible place at every station or within the limits of a port as the case may be. The notice must be written in a local language and in the English language.
Health and Safety
The Government may by giving a notification to the Official Gazette make rules for the health and safety of the children who are employed or permitted to work in an establishment or any class of establishments if the Government feels necessary to do so. According to the Act the rules which must be followed by the establishment for the purpose of safety and cleanliness are as follows:
The cleanliness of the place of work must be taken care of and it should be free from any kind of nuisance;
There must be a proper place for disposal of wastes and effluents;
Proper provisions for ventilation should be made and an adequate level of temperature should be maintained in the place of work;
Provisions should be made to reduce dust and fumes;
Artificial humidification shall be made;
Lighting must be proper in the place of work;
Drinking water must be provided;
Toilets must be made in the place of work for the employees;
Spittoons should be provided in order to keep the workplace clean;
The machines which are in the workplace should be fenced properly;
Children must not be allowed to work near machinery which is in motion;
Children must not be permitted to work on dangerous machines;
Children must be instructed, trained and supervised in relation to the employment of children on dangerous machines;
Device for cutting off power should be used;
Self-acting machines should be used in the workplace;
Easing of new machinery;
Proper floors should be made and proper means to access through stairs shall be made;
Pits, sumps, openings in floor shall be made;
Child employees shall not be permitted to lift excessive weights while working;
Protection for eyes must be provided;
Children must not exposed to explosives or inflammable dust, gas, etc;
In case fire is used in work, proper precautions must be taken;
Proper maintenance of buildings and machinery shall be taken.
Miscellaneous
Penalties
When an employer employs a child or permits a child to work in contravention of the provisions of Section 3, the employer shall be liable for punishment with imprisonment for a term which may extend to one year or with fine and the fine imposed shall not be less than rupees ten thousand and which may extend to rupees twenty thousand or with both.
Whoever is convicted of the said offence under Section 3 and repeats the same offence again in future then he shall be punished with imprisonment for a term which shall not be less than six months and can be extended to two years.
When an employer fails to give a notice as stated under Section 9 or fails to maintain a register comprising the details of child employees as required by Section 11 of the Act or if the employer makes any false entry in any such register, or fails to display a notice containing an abstract of Section 3, or if the employer fails to comply with or contravenes any other provisions of the Act or any of the rules which are made thereunder, he shall be punished with simple imprisonment which may extend to one month or with fine which may extend to ten thousand rupees or with both imprisonment and fine.
Modified application of certain laws in relation to penalties
In case a person is found guilty and is convicted of a contravention of any of the provisions which is mentioned in the Act, then he shall be liable to pay penalties as per sub-sections (1) and (2) of Section 14 of this Act.
The provisions which are referred to in Section 14(1) of the Act are as follows :
Section 21 of the Motor Transport Workers Act, 1961
Procedure relating to offences
A police officer, Inspector or any person can file a complaint against an employer for the commission of an offence under the Act. A complaint can be filed under this Act in any court which has competent jurisdiction for it.
In cases where there is a question as to the age of a child employee, every certificate as to the age of a child that is granted by a prescribed medical authority shall be considered to be conclusive evidence as to the age of the child employee to whom it relates.
No court shall try a case of an offence under this Act which is inferior to that of a Metropolitan Magistrate or a Magistrate of the first class.
Appointment of Inspectors
The Government may appoint Inspectors for the purposes of securing compliance with the provisions of the Act and any Inspector who is appointed by the Government for such a purpose shall be deemed to be a public servant within the meaning of the Indian Penal Code.
Power to make rules
The Government may make rules subject to previous publication by giving notification in the Official Gazette. The rules may provide provisions on the following matters:
The term of office of the Chairman and members of the Committee, or the provisions related to the manner of filling casual vacancies, or provisions related to allowances payable to the Chairman and members of the Child Labour Technical Advisory Committee.
Number of hours for which a child may be required or permitted to work under Section 7 (1) of the Act.
Rules related to grant of certificate when the question arises as to that of the child employee. A charge may be made for the certificate by the Government for issuing such a certificate. No charges must be made for the issue of a certificate if the application for such a certificate is accompanied by evidence of the age of the child.
Rules related to the particulars of the register which is to be maintained by the occupier who permits a child to work according to Section 11 of the Act.
Rules and notifications to be laid before the Parliament or State legislature
Every rule which is made by the Government under this Act and every notification which is issued under Section 4, shall be laid before each House of Parliament as soon as possible. The rules and notifications must be laid before the Houses of Parliament while they are in session for a period of 30 days. It may be comprised in one session or in two or more successive sessions. If both houses agree jointly on a modification that is to be made in the rule or notification, then such notification or rule can be made or issued only when such a modification is made otherwise, the rule or notification cannot be made at all. The rules made by the Government under this Act shall come into practice as soon as it is made.
Certain provisions of law not barred
Subject to the provisions which are mentioned in Section 15 of the Act, the provisions of this Act and the Rules made by the Government under this Act shall be in addition to and not in derogation of the existing provisions of the Factories Act, 1948 (63 of 1948), the Plantations Labour Act, 1951 (69 of 1951) and the Mines Act, 1952 (35 of 1952).
Power to remove difficulties
In case, if any difficulty arises in giving effect to the provisions of the Act, then the Government may make such provisions which are not inconsistent by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act by an order which shall be published in the Official Gazette. The order which shall be published shall not be made after the expiry of a period of three years from the date on which the Act received the assent of the President. Every order that is made under section 21 of this Act shall be laid before the Houses of Parliament as soon as it may be possible.
Repeal and Savings
The Employment of Children Act, 1938 was repealed by the Child Labour (Prohibition and Regulation) Act, 1986. Notwithstanding such repeal, anything that is done or any action that has been taken or claimed to have been done under the Act which has been repealed, then, in so far as the provisions of the repealed Act is not inconsistent with the provisions of this Act shall be deemed to have been done or taken under the corresponding provisions of the present Act.
Amendment of Act 11 of 1948
Through the Amendment of Act 11 of 1948, the word ‘adolescent’, ‘adult’, ‘child’ was defined in Section 2 of the Minimum Wages Act, 1948. According to the Amendment, ‘adolescent’ refers to a person who has completed 14 years of age but did not complete 18 years of age. ‘Adult’ refers to a person who has completed 18 years of age. ‘Child’ refers to a person who has not completed 14 years of age.
Amendment of Act 69 of 1951
Amendment of Act 69 of 1951 was made in Section 2, Section 24 and Section 26 of the Plantations Labour Act, 1951. In Section 2 the word ‘fifteenth’ was substituted with the word ‘fourteenth’. Section 24 and Section 26 of the Act were omitted. The words ‘who has completed his twelfth year’ in Section 26 of the Act were omitted.
Amendment of Act 27 of 1961 was made in Section 2 of the Motor Transport Workers Act, 1961. The word ‘fifteenth’ was substituted with the word ‘fourteenth’.
Conclusion
The Child Labour (Prohibition and Regulation) Act, 1986 prohibits children from working in hazardous employment. The Act provides a minimum age limit for employment as 14 years. The provision of the Act has helped in reducing the rate of child employment in India. It has reduced various hazardous risks to which child employees are exposed at the workplace as well as the exploitation by laying down the provisions for maximum number of hours or period of work and various other related issues. The Act has played an important role in reducing hazardous employment for children in India. If it is found that the employer is employing a child in contravention of the provisions of the Act then, such employer will be liable for punishment which includes imprisonment or fine or both. Although the Act has reduced the number of child labors, this evil is still lingering in our society due to the socio-economic issues i.e. poverty and illiteracy and for overcoming the evil of child labor, collective responsibility has to be taken up by the society at large as Justice Subba Rao, the former Chief Justice of India rightly said that; “Social justice must start with the child. Until and unless a tender plant is properly tended and nourished, it has a small chance of growing into a strong and useful tree. So, the first preference in the plate of justice should be stated to the well-being of children.”
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“He doesn’t realise that he’s put the company up for sale….” This was a phone call I received the moment I reached my desk in an office in Dublin, on an early July morning, a few years back. It told me that a recent announcement had made my company the target of a hostile takeover and that there will now be more players out to bid for my company.
Hostile takeovers are not common. These are once-in-a-lifetime kind of experiences. They prepare you and chisel out the rough edges from your form to sculpt your personality to its very best. So here I will be sharing some experiences which I went through, during that transaction.
Focus in the midst of frantic activity
The phone call I mentioned was from my manager, who was still on his way to the office. I had just reached my desk and hadn’t even powered up my laptop yet. But that one RNS (regulatory news service) announcement in the morning had put people inside the company on their toes. A takeover doesn’t happen overnight. But every night may bring a new twist. There will be competitive bidders cropping up, there will be sudden requests for your registers and you will see frantic activity. Being in the inside of the secretarial department, I had to coordinate and be on suddenly required board calls, which had to be intently listened to, in order to be documented properly. As an Indian listening to all different kinds of foreign accents, if I wasn’t in a high alert and highly focused state of mind, I would miss out on crucial points in the minutes. This simply couldn’t be permitted.
In the midst of transactions like this, you have to forget weekends and working hours. I distinctly remember working on uploading stuff to a data room on a Sunday. You can turn up in denim, you can ditch the public transport to reach the office in a taxi and your lunch can be on the company. But you can’t get the lazy Sunday morning at your home. In Mumbai, people are kind of conditioned to always put their professional commitments on top of personal ones but in Dublin, this isn’t an everyday story. Even then, you can’t allow yourself to be distracted by what you could have been doing and you have to give your entire focus to the task at hand. Data rooms need to be handled with care.
There’s no time to think of possible errors
As someone who was experiencing such a transaction for the first time, it was very easy to be scared – scared of committing mistakes, screwing up something somewhere, missing out on some crucial action. However, at the end of the transaction, I realised that I had been so busy ‘doing’, so busy implementing things that I simply did not have the time to think “What if I have done something wrong….” All the mental space was deployed into the high focus and in getting on to whatever task was required to be undertaken next. There were no gigabytes left for any fear to crop in. It’s like once you’re on the sledge going down the ice hill, you’re just busy experiencing and screaming. In that moment, there’s no scope for fear. Fear is only experienced at the time of the run up to the top. That transaction put us on a downhill sledge. Without any run up.
You must be knowing the inside out of the documents
If you’re in the legal or secretarial department when a company is going through an acquisition, you must read and re-read the documents which pass through you – irrespective of whether it is the offer document or board or committee resolutions or communications to employee stock option holders or even the emails to and from your legal advisors. I had been asked to cross connect contents in each of these with something else and if I hadn’t known the contents thoroughly, I wouldn’t have been able to deal with what I was asked. For example, I was asked where exactly in the communication to the employees there was the mention of cash settlement of their options. If I hadn’t read it properly, I wouldn’t have known. You simply have to be on top of it preferably when these are being drafted by the legal advisors or latest by when the final draft is arrived at. Unless of course, if you are the one drafting these, you have to be on top of the document at all times.
You WILL be tested. Unless you have evidence, you will be lost.
I remember being the moderator of a board call during the transaction. Within 5 minutes of starting the call, I received an email from the CFO asking me if I was on it since he hadn’t heard my voice. He was on the call and he was, therefore, emailing me. I responded, also on an email that the call wouldn’t be ongoing if I weren’t on it because I was moderating. I also wrote that I just didn’t have the chance to speak because one of the nominated advisors overtook it and began leading it. He made a joke out of it to say that everyone felt the same about this guy.
In fact, what he wanted to know was if I was there, listening intently because, on that call, I had stepped up and was moderating it in the place of my manager, who had been suddenly hospitalised.
On another occasion, the head of finance had queried whether I had communicated some crucial information, which was required to be given to the finance department. I have often written about how important it is to document things and have all sorts of communication in writing, even though it may be just easier to pick up the phone and speak. If you must call, do, and then back it up with an email. Fortunately, I had put it in an email and copied everyone who needed to be copied. I was thus able to promptly forward the email stating that I had indeed informed the finance department as needed.
This is why we have practitioners heavily involved in our courses, including this one, which deals with mergers and acquisitions. These experiences, which they might have acquired by tight rope walking can be yours before you actually have to set your foot on the rope. Once you have the right mindset to deal with these kinds of transactions, you will learn incredibly fast and then everything else becomes like it is “Elementary, my dear Watson.”
Wishing many of you end up “cutting billion dollar deals for breakfast” like Harvey Specter. Cheers.
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This article has been written by Ansh Mohan Jha, a student of BA LLB, First Year at Pune University. This article encompasses major labour laws that have been enacted to regulate the labour of our country.
Introduction
Unlike developed countries, most of the industrial establishments in India are labour intensive i.e workers are extensively employed to carry out the production of goods and services. To date, labour-intensive methods are preferred in our country because it not only lowers down the cost of production but also provides employment to a myriad of people, but as soon as industrialisation gained pace in our country, a plethora of cases surfaced in which employers had exploited their employees working under them. In some cases, the workers were made to work for long hours at minimal wages while in other ones, they were not remunerated periodically and heavy deductions were made from their salaries over trivial issues. In a nutshell, we can say that the majority of the employers were committing atrocities on their workers. Hence, it became the need of the hour to formulate a set of laws to protect the basic rights of the labourers so that a favourable working environment could be set up. The set of laws which are enacted to uphold the basic rights of labourers and provide them employments and benefits are collectively known as ‘Labour Laws’.
Central and State Laws
In India, the subject of ‘Labour’ falls under the category of concurrent list i.e both central and state governments have the authority to make legislation on this subject. However, there are certain matters on which the state government are not entitled to make any law.
Labour Jurisdiction Constitutional Status.
Union List
Concurrent List
Entry No. 55
Regulation of labour and safety in mines and oil fields.
Entry No. 22
Trade Unions; industrial and labour disputes.
Entry No. 61
Industrial disputes concerning Union employees.
Entry No. 23
Social Security and insurance, employment and unemployment.
Entry No. 65
Union agencies and institutions for “Vocationa …training…”
Entry No. 24
Welfare of labour including conditions of work, provident funds, employers “invalidity and old age pension and maternity.
The statutes relating to industrial relations have been enacted with the object of maintaining a healthy and amicable relationship between an employer and an employee. The provisions under these statutes pave the way for the creation of several institutions which not only empowers the members of industrial establishments but also creates a favourable environment to resolve any dispute which may slow down the industrial growth.
Post World War I, workmen rebelled and held strikes against their employers because of the oppressive term and condition of the work, which was solely formulated by employers. In retaliation, employers began to lock out workers, which worsened the relationship between them. Finally, on April 1st, 1947, the Industrial Disputes Act was enacted to provide a permanent machinery for the settlement of industrial disputes amicably and peacefully.
According to this Act, an industrial dispute may be defined as the differences of opinions between workmen and employers or between workmen and workmen, which is linked with employment or non-employment or the terms of employment or with the conditions of labour.
Primary Objective
The legislative intent of the Industrial Disputes Act, 1947 is to investigate and settle down the industrial disputes in order to maintain peace and harmony among workers and employers of an establishment.
Applicability
The Industrial Disputes Act, 1947 is applicable to the whole of India. Every industrial establishment that is carrying on the production of goods and services, irrespective of the number of workmen employed there falls under the jurisdiction of this Act.
Key Provisions
Under the provisions of this Act, various entities such as Works Committee, Board of Conciliation, Courts of Inquiry, Labour Courts, Tribunals and National Tribunals are constituted not only to expedite the settlement of dispute but also to resolve it fairly and peacefully.
Neither a worker shall go on an unauthorised strike nor an employee shall declare unwarranted lock-out, contravening the Section 22 or Section 23 of the Act.
An employer shall pay compensation to his employees in case of lay-off, closing down of undertakings, or transfer of undertakings.
An employer shall not retrench his employees arbitrarily;it is necessary that he follow the rules laid down under the provisions of the Act.
In layman’s terms, a Trade Union may be defined as an organisation of workers constituted with the object of protecting their basic rights. The workers began organising themselves to prevent employers from exploiting them and to make employers commence welfare schemes for them as well. Moreover, the formation of trade unions thwarted employers to take unanimous decisions and paved the way for collective bargaining as well.
Primary Objective
The Trade Union Act, 1926 has been enacted with the object to provide for the registration of Trade Unions and in certain respects to define the law relating to registered Trade Unions.
Applicability
It extends to the whole of India.This Act is not only applicable to the union of workers but also to the organisation of employers.
Key Provisions
The appropriate Government shall appoint a person known as Registrar for the purpose of registering functional Trade Unions.
Any seven members of a Trade Union may make an application, along with all the required documents such as name and address of the Trade Union, information about the members making the application and information about the office bearers to the Registrar for the purpose of getting the Certificate of Registration.
The general funds of a Trade Union shall be spent on the payment of salaries to the office bearers, the payment of expenses to administer it, the payment of compensation arising out of trade disputes, the payment of pensions to its members, and the issuance of policies insuring members against sickness, accident or unemployment, etc.
The certificate of a Trade Union may be withdrawn if the Registrar finds that it was obtained through either a mistake or fraud. In case, a Trade Union violates the provisions of this Act, or it ceases to function, then he may revoke its status.
Statutes relating to Wages
Looking back into history, we find that the employers used to exploit their employees in every possible manner to maximise their profits. In this sub-point, we will discuss the economic exploitation of the workers. The wages that were paid to the workers were so minimal that they could not fulfil their basic needs. Moreover, the wages were not disbursed periodically, and heavy deductions were made from the wages even after enforcing the employees to work for long hours. There was no provision of providing bonuses to the employees. Therefore, the statutes relating to wages were enacted to protect the workers from being exploited economically and to make every employee financially independent.
Before the enactment of the Payment of Wages Act, 1936, several cases were found where the employees were not getting their remunerations periodically, and at the same time, the employers were making deductions from their salaries over petty issues. In order to fix these two primes issues, this Act came into existence.
Primary Object
The Payment of Wages Act, 1936 has been enacted to regulate the regular remuneration of the workers and to prevent hefty deductions and arbitrary fines from their salaries as well.
Applicability
It is a central legislation and is applicable to the whole of India. It is applicable to every person employed in any factory or certain specified industrial or other establishments.
Key Provisions
Under the provisions of this Act, payment should be made to employees before the 7th day of a month if the establishment consists of less than 1000 employees and on 10th day otherwise.
Payment should be paid in currency notes or coins. However, an employer could also pay the remuneration by cheque payment or by transferring the due amount to the bank account of an employee after taking his consent.
Payment period should not exceed 30 days.
No deductions shall be made except those provided in the Act such as deductions for absence from duty, deductions for damage to or loss of goods, fines, deductions for services rendered, etc.
The concept of minimum wages gained ground due to the fact that the workers of an establishment performing the same labour were receiving substantially low wages as compared to the other workers engaged in the same labour in other establishments. In 1929, the Royal Commission on Labour was appointed in India to discuss the wage-fixing process comprehensively. It was again discussed at the 3rd and 4th meetings of the Standing Labour Committee in 1943 and 1944 respectively. It was widely discussed at the sessions of the tripartite labour conference in 1943, 1944 and 1945 respectively. Finally, on 11 April 1946, a Minimum Wages Bill was introduced and the Bill became a law in 1948.
Primary Object
The Minimum Wages Act of 1948 regulates the fixation of the minimum rates of wages for both skilled and unskilled workers employed in an establishment.
Applicability
It is applicable to the whole of India. Any establishment consisting of 1000 employees or more in the respective state falls under the jurisdiction of this Act.
Key Provisions
The minimum wages shall consist of the following components, namely:
A basic rate of wages and the cost of living allowance.
A basic rate of wages with or without the cost of living allowance, and the cash value of the concessions in respect of supplies of essential commodities at concession rates.
A basic rate, the cost of living allowance and the cash value of the concessions, if any.
The appropriate Government, under Section 3, shall fix the wages payable to employees in an establishment.
It shall also review the minimum rates of wages so fixed at regular interval of time. After reviewing the rates of wages, it may revise the minimum rates, if necessary.
An employer shall be punishable with imprisonment which may extend to 6 months, or with fine which may extend to 500 rupees or both.
The history of payment of bonus can be traced back to the First World War. During the war, in 1917, certain textile mills disbursed 10% of the wages to their labourers as war bonus. In 1950, the full bench of the Labour Appellate prepared a formula for payment of bonus to the employees of an establishment. Ultimately in 1961, the Central Government constituted a tripartite commission for the purpose of evolving a comprehensive method for the disbursal of bonus to the employees. In 1965, the payment of bonus has been enacted by the Government of India.
Primary Objective
The Payment of Bonus Act, 1965 has been enacted with the object of regulating the payment of bonus to persons employed in an establishment based on its profit and productivity.
Applicability
This Act is applicable to the whole of India. Every factory and establishment in which twenty or more workers are employed on any day during an accounting year shall be liable to pay the bonus to its employees.
Key Provisions
Every employer is bound to pay a minimum bonus to his employee, which shall be 8.33% of his total salary earned during an accounting year. If the payable bonus is less than 100 rupees, an amount equal to 100 rupees shall be paid to an employee.
The payable bonus shall be disbursed within eight months after the closure of an accounting year, and it shall be paid in cash.
Contravenors of the provisions under this Act shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Statutes relating to Social Security
According to Fridlander, the term ‘Social Security’ may be defined as a program of protection provided by society against the contingencies of modern life like- sickness, unemployment, old age, industrial accident against which the individual cannot be expected to protect himself and his family by his own ability and his foresightedness. In accordance with our constitution, the state is responsible for providing social security to citizens of our country. Over time, social security of employees gained traction in India, and a slew of legislation was enacted to protect workers against contingencies like retirement, resignation, retrenchment, old age, unemployment, death and other similar conditions.
On March 4, 1952, the Employees’ Provident Funds and Provisions Act received the assent of the President after being passed in both houses of the Parliament. The social welfare legislation was enacted to provide social security to the workers of anestablishment so that they couldlead their life decently during their old age or on the happening of various contingencies such as voluntary retirement, retirement due to incapability of the employee to work, etc.
Primary objective
The Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 was enacted with the object for providing the institution of provident funds, pension fund, and deposit-linked insurance fund for employees in factories and other establishments.
Applicability
It extends to the whole of India. This Act is applicable to every establishment which is a factory engaged in any industry mentioned under Schedule I of the Act, and in every establishment, twenty or more employees must be employed. The Central Government, by notification in the Official Gazette, may include any establishment to which this Act shall be applicable, employing twenty or more workers.
Key Provisions
Under this Act, the Central Government may, by notification in the Official Gazette, formulate a scheme to be known as the Employees’ Provident Fund Scheme to set up provident funds for employees.
Every employer shall contribute 10% of the basic wages, dearness allowance and retaining allowance payable to employees to the Fund, and employees’ shall also contribute the same amount to it.
The Central Government may, by notification in the Official Gazette, formulate a scheme to be known as the Employees’ Pension Scheme to provide superannuation pension and retiring pension to employees of an establishment. Widow or widower’s pension and children or orphan pension are payable to the beneficiaries of such employees.
In order to provide life insurance benefits to employees of an establishment, falling under the jurisdiction of this Act, the Central Government may, by notification in the Official Gazette, formulate a scheme to be known as the Employees’ Deposit-linked Insurance Scheme.
In the pre-independence era, the Employee’s Compensation Act, 1923 was enacted to ensure social security to workmen, but after getting independence, our policymakers felt the need to enact a slew of social security legislation to provide social security to workmen and protect them from getting exploited In 1948, one such Act, Employees’ State Insurance Act, 1948, got the assent from the President that provides financial aid to workmen during their sickness, disability, maternity and other similar conditions.
Primary Objective
The Employees’ State Insurance Act, 1948 was enacted to provide financial aid to employees in case of sickness, maternity and employment injury and provide medical benefits to employees of factories and establishments and their dependants.
Applicability
This Act is applicable to the whole of India. It shall apply to all factories, including factories belonging to the Government. However, this Act does not apply to seasonal factories.
Key Provisions
Under the provisions of this Act, every employee who gets employed in a factory or establishment to which this Act applies shall be insured.
Under this Act, the contribution payable to an employee shall consist of the contribution payable by the employer as well as the contribution payable by the employee, provided the amount of payable contribution shall be determined by the Central Government. Then, the whole amount shall be paid to the Corporation.
An insured person shall be entitled to get periodical payments in case of his sickness certified by a duly appointed medical practitioner. Such person may also claim sickness benefit, provided the conditions subject to which such benefit may be given, rates and period thereof shall be determined by the Union Government.
An insured woman, who is certified by an appropriate authority, shall be entitled to get periodical payments in case of confinement or miscarriage or sickness arising out of pregnancy, confinement, premature birth of child or miscarriage. Such woman may also claim maternity benefit, provided the conditions subject to which such benefit may be given, rates and period thereof shall be determined by the Union Government.
An insured person, who is certified by an appropriate authority, shall be entitled to get the periodical payment in case of his disablement that is caused during the course of employment. Such person who sustains temporary disablement for not less than thirty days or such person who sustains permanent disablement may claim disablement benefit, provided the conditions subject to which such benefit may be given, rates and period thereof shall be determined by the Union Government.
The Payment of Gratuity Act, 1972 is social welfare legislation, which was enacted to pay gratuity to workers for their dedicated services in an establishment. Earlier, only a few establishments used to pay gratuity to a specific class of employees. Ultimately, it was felt that every worker engaged in any establishment shall get gratuity from employers. Consequently, the Government of Kerala and the Government of West Bengal enacted the legislation for the same in 1970 and 1971 respectively. Thus, a need for uniform central legislation regarding the payment of gratuity was felt, and as a result of which, the whole matter was discussed in the Labour Ministers’ Conference held in August 1971 and the Indian Labour Conference held in October 1971. Finally, the central legislation for the payment of gratuity came into effect on September 16, 1972.
Primary Objective
The legislative intent of the Payment of Gratuity Act, 1972 is to provide for a scheme for the payment of gratuity to employees engaged in factories, mines, oilfields, plantations, ports, railway companies, shops or other establishments and for matters connected therewith.
Applicability
It extends to the whole of India. This law shall be applicable to every factory, mine, oilfield, plantation, port and railway company. It shall also be applicable to every shop or establishment in which ten or more people are employed on any day of the preceding twelve months.
Key Provisions
An employee who has rendered continuous service for not less than five years shall get the payable gratuity after the termination of his service on the following grounds- superannuation, retirement or resignation, death or disablement due to an accident or disease.
The employer shall determine the amount of payable gratuity to his employees and send a written notice to the person eligible to get the gratuity and the controlling authority mentioning the amount of gratuity payable to his employee. He shall pay the amount of gratuity within thirty days from the date it becomes payable to the employee.
If an employee does not get the gratuity payable to him within the prescribed time, he shall make an application to the controlling authority regarding the same. The controlling authority, on receiving the application, issues a certificate to the collector to recover the payable amount, along with the compound interest incurred on the amount at an interest rate fixed by the Central Government from the date of expiry of the prescribed time.
Before the implementation of the Employee’s Compensation Act, an employer used to pay compensation to his employers if an accident had taken place due to his negligence. An employee was not entitled to get any compensation otherwise, and he had to bear all the loss arising out of medical expenses, deduction from wages and other reparations. In 1884, fatal and major accidents occurred in our country, which led to the formation of a committee consisting of Legislative Assembly, employers’ representatives, workers and experts in insurance and medicine. After meticulousobservation, the committee submitted its report to the State, and this Act came into effect.
Primary Objective
The Employee’s Compensation Act, 1923, social welfare legislation, was implemented with the object of paying compensation to workmen for an injury caused by an accident during the course of employment.
Applicability
It extends to the whole of India. It is also applicable to those workmen who are recruited by the companies registered in India and sent abroad. However, this Act does not apply to those areas which are covered by the Employees’ State Insurance Act, 1948.
Key Provisions
In the course of employment, if an employee gets injured by an accident, his employer shall be liable to pay compensation as per the provisions of the Act.
If an employee contracts any disease during the course of employment due to the nature of work, he shall be paid compensation because the contracting disease, which is also known as an occupational disease, is treated as an injury under the provisions of this Act.
If an employee dies during the course of employment, his employer shall have to pay an amount equal to 50% of his monthly wages multiplied by the relevant factor or an amount equal to one lakh twenty thousand rupees, whichever is more.
If an employee gets totally disabled permanently due to an injury caused during the course of employment, his employer shall have to pay 60% of his monthly wages multiplied by the relevant factor or an amount of one lakh forty thousand rupees, whichever is more.
If an employee gets partially disabled permanently due to an injury caused during the course of action, his employer shall pay him an amount equal to the compensation given during the permanent total disablement, provided the injury is mentioned in Part II of Schedule I. If the injury is not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement that is proportionate to the loss of earning capacity.
If an employee gets temporarily disabled, his employer shall pay him a half-monthly payment of the sum equivalent to 12% of his monthly income.
Statutes relating to Working Hours, Conditions of Services and Employment
In order to regulate working hours, interval for rest, holidays, spread over, wages for overtime work, etc., these Statutes were enacted. After the enactment of these Statutes, every employer needs to follow the conditions of services that are prescribed by these laws, and they have no authority to alter these conditions.
The first Factories Act was enacted in 1881. After the enactment of the Act, it has been amended on several occasions, and finally in 1934, a newer version of the Act, drafted on the recommendations of the Royal Commission on Labour, was passed. However, there were several defects in the newer bill even after amending it several times. As a result, the administrative authority of factories was unable to regulate labour properly, which, in turn, hampered the growth of factories as well. Ultimately, on April 1, 1949, the Factories Act, 1948 came into effect, amending all the flaws of the previous Factories Act.
Prime Objective
The Factories Act, 1948 was enacted with the object of consolidating and amending the law to regulate labour in factories. The Act primarily focuses on the health, safety, working conditions of adult workers, working conditions of young employees and welfare of the workers.
Applicability
It extends to the whole of India. This Act is applicable to all such factories in which 10 employees or more are employed on any day of the preceding 12 months, provided the manufacturing process is being carried out with the aid of power. In those factories, where the manufacturing process is carried out without the aid of power, the threshold number of employees should be 20.
Key Provisions
Each factory shall be kept clean, and effective arrangements shall be made for the disposal of wastes and effluents. There shall be adequate ventilation by the circulation of fresh air and the level of temperature shall be maintained at such a level that workers could work comfortably without having any fear of getting injured. Every part of the factory shall be provided sufficient and suitable lighting. Moreover, no part of the factory shall be overcrowded to such an extent that can cause injury to workers. In every factory effective arrangements shall be made to provide pure drinking water to workers, sufficient latrine and urinal accommodation, and spittoons.
In every factory, the machinery shall be securely fenced and the fence shall be constantly maintained and kept in position. No young person shall operate any machine unless he is properly instructed regarding the operation of machines. Furthermore, women and children are strictly prohibited to work near cotton openers. Floors, stairs and means of access shall be of sound construction and properly maintained. At the same time, effective measures shall be taken to protect the workers from dangerous fumes and gases, the explosion of inflammable dust and gas, and the outbreak of fire. The Act also states that every part of the factory shall be properly maintained and any part of the factory that is dangerous to the lives of workers shall be immediately repaired.
In every factory, proper and adequate washing facilities shall be provided, along with the facilities for storing dry clothing and drying wet clothing. Facilities for sitting shall be provided to employees so that they could take a rest during their leisure. In every factory wherein more than 150 workers are employed. shelters, restrooms and lunchrooms shall be provided and maintained for the use of workers. Moreover, there shall be creches, rooms for the use of children under the age of six, in every factory wherein more than 30 women are employed.
No adult worker shall be made to work more than 48 hours in any week. Moreover, he shall not be required to work in a factory on the first day of the week. No adult worker shall be made to work more than 9 hours in any day. At the same time, no worker shall work for more than 5 hours without getting an interval for rest of at least half an hour as well.
In any factory, no child who has completed the age of 14 shall be made to work. In addition, a child who has completed his fourteenth year shall only get employment if he possesses a certificate of fitness. In every factory wherein children are employed, the manager shall maintain a register in which the nature of work, working period and information about children are recorded. The period of work for children shall be properly displayed in all those factories wherein children are employed.
The Labour Committee that was constituted in 1944-1946 identified that the employees were unaware of the employment conditions framed by their employers. The committee wanted to enforce legislation, making it obligatory for the employers to frame employment conditions and get them certified by an appropriate authority, that empowers the workmen to know every nuance of the employment conditions formulated by their employers. As a result of which, in 1946, the Industrial Employment (Standing Orders) Act, 1946 came into effect.
Prime Objective
The Industrial Employment (Standing Orders) Act, 1946 was formulated with the prime object to require employers in industrial establishments formally to define conditions of employment under them. According to this Act, every workman shall have the right to know regarding the condition of work so that they could protect themselves from exploitation.
Applicability
It extends to the whole of India. It applies to every industrial establishment wherein one hundred or more employees are working or were working on any day of the preceding twelve months.
Key Provisions
An employer shall submit five copies of the draft standing orders that he proposes to adopt in his industrial establishment to the Certifying Officer who is either a Labour Commissioner or Regional Labour Commissioner, along with the details of the workmen employed in his establishment including the name of the Trade Union they belong to if any. Provisions shall be made on every matter that is mentioned in the Schedule.
Classification of workmen, e.g., whether permanent, temporary, apprentices, or probationers
Manner of intimating to workmen periods and hours of work, holidays, pay-days and wage rates.
Shift working.
Attendance and late coming.
Conditions of, the procedure in applying for, and the authority which may grant, leave and holidays.
Requirements to enter premises by certain gates, and liability to search.
Closing and re-opening of sections of the industrial establishment, and temporary stoppages of work and the rights and liabilities of the employer and workmen arising therefrom.
Termination of employment, and the notice thereof to be given by employer and workmen.
Suspension or dismissal for misconduct, and acts or omissions which constitute misconduct.
Means of redress for workmen against unfair treatment or wrongful executions by the employer or his agents or servants.
Any other matter which may be prescribed.
Standing orders shall be approved and certified only if the provisions framed on each matter that is specified in the Schedule are in conformity with the provisions of this Act.
The Certifying Officer, on receiving the copies of draft standing orders, shall send the draft copies to the Trade Unions or the representatives of the workmen to file any objection on any of the matters specified in the standing order. After hearing employers and the grievances of workers, he shall decide whether to modify or make any changes in the standing order.
Nowadays employers are keen to employ contract labour in their establishments because it not only enables employers to make contract labourers work at lower wages but it also helps employers to exploit them in every possible manner as they can not exercise the rights given to permanent workers. In order to protect the contract labourers in India from the exploitation of employers, the Contract Labour (Regulation and Abolition) Act came into effect in 1970.
Primary Objective
The Contract Labour (Regulation and Abolition) Act, 1970 was enacted with the object of regulating the employment of contract labour and introducing better conditions of work. This Act also aims at abolishing the employment of contract labour in those establishments where the work can be done by regular labourers, the work is done perennially, and the employment of permanent workers is necessary due to the nature of work, etc.
Applicability
It is applicable to the whole of India. It applies to every establishment wherein twenty or more workmen are employed or were employed on any day of the preceding twelve months as contract labour. A contractor also comes under the jurisdiction of this Act if he employs or employed twenty or more workmen on any day of the preceding twelve months as contract labour.
Key Provisions
Both the Central Government and State Government shall constitute a board for taking advice on such matters arising out of the administration of this Act. The board constituted by the Central Government is known as Central Advisory Board while the board constituted by the State Government is known as State Advisory Board.
Every principal employer of an establishment to which this Act applies shall make an application to the registering officer, who is appointed by the appropriate Government, along with all the required documents for the registration of his establishment under the provision of this Act. If the registering officers are confirmed that all criteria are met, he may register the establishment under this Act. A contractor needs to obtain a license under the provisions of this Act to undertake any work through contract labour.
The employment of contract labour is strictly prohibited in any work in any establishment if it is done perennially, it is done ordinarily through regular workmen, it is sufficient to employ a considerable number of full-time workers and it is necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment.
Those establishments that fall under the jurisdiction of this Act shall provide canteens, restrooms, pure drinking water, a sufficient number of latrines and urinals and first aid facilities to contract workmen.
In search of better job opportunities, workmen often migrate from one place to another. However, the migrant workers were not treated equally and discriminated against the native workers. The working conditions of the migrants were harsher than that of the native ones. In order to uphold the rights of migrant workers and protect them from exploitation, the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 came into force in 1979.
Prime Object
The Inter-State Migrant Workmen Act, 1979 was enacted with the purpose of regulating the employment of inter-State migrant workmen and providing for their conditions of service.
Applicability
It extends to the whole of India. It applies to every establishment in which five or more inter-State migrant workers are employed or were employed on any day of the preceding twelve months and every contractor who employs or employed five or more inter-State migrant workers on any day of the preceding twelve months.
Key Provisions
The wage rates, holidays, hours of work and other conditions of service for inter-State workmen employed in an establishment shall be the same as those applicable to other workmen performing the same duty in the same establishment.
Every contractor shall pay displacement allowance to every inter-State migrant worker which shall be equal to fifty per cent of the monthly wages payable to him or seventy-five rupees, whichever is higher.
Every contractor shall pay journey allowance to every inter-State migrant worker, which shall not be less than the fare from the place of residence to the place of work.
A contractor shall ensure that every workman gets regular payment, suitable working conditions, residential accommodation, medical facilities, equal pay for equal work, protective clothing. In case of a fatal accident, he shall report to the authorities of both the States and relatives of the workman.
The Weekly Holidays Act, 1942 came into force so that employees get a weekly off, that is any day during the week when employed persons are exempted from doing work and exempted from coming to the workplace as well.
Primary objective
The Weekly Holiday Act, 1942 was enacted with the purpose to provide for the grant of weekly holidays for a whole day to persons employed in shops, restaurants and theatres.
Applicability
It extends to the whole of India. It applies to the persons employed to shops, restaurants and theatres.
Key Provisions
Every shop shall remain entirely closed once in a week. The owner of the shop shall specify the day of closure, and exhibit the notice in a conspicuous place in the shop.
Every person employed in a shop, restaurant or theatre shall be allowed a holiday each week. However, this provision is not applicable to those employees who occupy a position of management in the shop. The persons employed in a confidential capacity are excluded as well.
The State Government may, by notification in the Official Gazette, provide additional half-day closing or holiday to the employees of shops, restaurants and theatres.
More than 1 million labourers who are employed in the plantation industry, i.e., tea, coffee, rubber and cinchona plantation, have been excessively exploited because of their illiteracy and lack of other employment opportunities. Most of the plantations are located in isolated areas. As a result, workers have no other option but to work on plantations to earn their livelihood. To date, their living conditions are most dismal as compared to that of workers employed in other industries. That’s why in 1951, the Parliament passed the Plantation Labour Act, 1951 to safeguard the rights of plantation workers and to protect them from exploitation as well.
Prime Objective
The Plantation Labour Act, 1951 was enacted with the object of providing for the welfare of labour, as well as regulating the conditions of work, in plantations.
Applicability
It extends to the whole of India. It applies to all tea, coffee, rubber and cinchona plantations. The State Government may, by notification in the Official Gazette, apply it to other plantations as well.
Key Provisions
In every plantation, effective arrangements shall be made by an employer to provide a sufficient supply of pure drinking water, a sufficient number of latrines and urinals at convenient locations and medical facilities to his employees.
The State Government may make rules that there shall be one or more canteens in every plantation wherein one hundred and fifty workers are employed, The canteens shall be provided and maintained by the employer. Moreover, educational, creche recreational and housing facilities shall also be provided to the plantation workers.
An adult worker shall not work more than 54 hours, while an adolescent or child shall work for only 40 hours on a plantation. A worker shall not work more than 12 hours a day, inclusive of the period for rest and the time spent in waiting. Moreover, no worker shall work for more than five hours without having an interval for rest. A day of rest shall be given to all workers during a week.
Every woman and child, who has completed his twelfth year, shall be made to work only between 6 A.M. and P.M.
The Mines Act came into force in 1952 to regulate the working conditions of those workers who were either working in mines below ground or mines above ground. This Act also restricts the employment of young employees and women in the mines below ground. The provisions of this Act also provides for the safety and health of mineworkers.
Prime Objective
The Mines Act, 1952 was enacted with the object of amending and consolidating the law relating to the regulation of labour and safety in mines.
Application
It extends to the whole of India.
Key Provisions
In every mine, effective arrangements shall be made to provide drinking water facilities, sufficient number of latrines and urinals and proper medical facilities. The Chief Inspector or an Inspector may give notice to the owner, agent or manager of the mine if the safety of mine workers are in danger due to the ongoing practices in the mine.
No worker shall be allowed to work more than 6 days in a week.
No adult worker shall be allowed to work for more than 48 hours in any week or for more than 9 hours in any day, provided a worker works above the ground.
No adult worker shall be allowed to work for more than 48 hours in any week or for more than 8 hours in any day, provided a worker works below the ground.
No person shall be allowed to work in any mine if he has not completed the age of 18 years.
No woman shall be employed in any part of the mine which is below the ground. A woman shall work in those mines that are above the ground between 6 A.M and 7 P.M.
Those workers who are employed in any work within the vicinity of any port for the purpose of loading, unloading, movement or storage of cargoes,i.e, anything carried in a ship or vessel, into or from a ship, port, dock and storage place are known as dock workers. To provide for the safety, health and welfare of the dock workers, the Dock Workers (Safety, Health And Welfare) Act, 1986. came into effect in 1986.
Primary Objective
The Dock Workers (Safety, Health And Welfare) Act, 1986 was enacted with the prime object to provide for the safety, health and welfare of dock workers.
Applicability
It extends to the whole of India. It shall be applicable to every port. However, it shall not apply to any ship of war of any nationality.
Key Provisions
No dock worker shall wilfully alter or neglect the use of any appliance, convenience or other things that are provided for the purpose of securing safety, health and welfare of dock workers. Nor shall he wilfully and without any reasonable cause to take any such action that is likely to endanger his life or other workers’ lives.
The appropriate Government may direct inquiry into cases of accidents or diseases occurring in connection with dock workers.
The appropriate Government may, by notification in the Official Gazette, appoint the Chief Inspector and inspectors subordinate to him for the purpose of dock safety.
If a person takes any step in a good faith then no legal proceedings shall lie against him.
The appropriate Government may, by notification in the Official Gazette, frame rules in accordance with the provisions of this Act to provide for the safety, health and welfare of dock workers. Effective arrangements shall be made to provide adequate ventilation and suitable temperature, fencing of machinery, fire and explosion protection, proper handling of dangerous substances, protective equipment, sanitary, washing and welfare facilities, medical supervision, ambulance rooms and first aid facilities, investigation of occupational accidents, dangerous occurrences and diseases, etc.
Those workers who are employed in the process of construction, repairs, maintenance and demolition of buildings, streets, roads, drainage, railways, etc. are generally known as the building or other construction workers. The Building and Other Workers (Regulation of Employment and Conditions of Service) Act was enacted in 1986 to regulate their employment and conditions of service.
Primary Objective
This Act was primarily enacted with the object of regulating the employment and conditions of service of building and other construction workers. Moreover, this Act also ensures their safety, security and welfare during the course of employment.
Application
It extends to the whole of India. It applies to every establishment which employs or had employed ten or more building workers on any day in the preceding year in any building or construction work.
Key Provisions
Every building worker who has been engaged in any building or other construction work for not less than 90 days in the preceding 12 months shall be eligible for registration as a beneficiary under this Act, provided his age should be greater than 18 years, but less than 60 years.
Every building worker registered as a beneficiary shall be entitled to get the benefits from the Building and Other Construction Workers’ Welfare Board constituted under the provisions of this Act. Some of the benefits are payment of medical expenses, maternity benefits, payment of pension and financial assistance in case of accidents etc.
The appropriate Government It may provide a day of rest every week and provide for payment in respect of such days of rest, and if a worker works on the day of rest then it may also fix the wage rate which shall not be less than overtime wage as specified under the provision of this Act may fix the number of hours of work on a normal day for a building worker.
Effective arrangements shall be made to provide drinking water facilities, sufficient latrines and urinals accommodations, temporary living accommodation at the construction site, creches, first aid and canteens to building workers.
Safety committees shall be constituted for every establishment in which five hundred or more building workers are employed. The appropriate Government may also formulate policies for the safety and health of building workers. Such rules may include the following matters, namely- a safe transportation system, precautions to be taken in case of fire, safeguarding of machinery, proper handling of explosives precaution to be taken while demolishing any part of the building, and adequate and suitable lighting of every workplace, etc.
The Building and Other Construction Workers Welfare Cess Act has been passed in 1996 to augment the resources of the Building and Other Construction Workers’ Welfare board that was constituted under the provisions of the Building and Other Construction Workers (Employment and Conditions of Service) Act, 1996 to provide benefits to the building and other construction workers.
Primary Objective
The Building and Other Construction Workers Welfare Cess Act was enacted with the object of levying and collection of cess on the cost of construction incurred by employers. The collected cess shall be provided to the Building and Other Construction Workers” Welfare Boards that are constituted to provide benefits building and construction workers.
Application
It extends to the whole of India.
Key Provisions
Cess shall be levied on the cost of construction incurred by an employer at such rate not exceeding two per cent, but not less than one per cent. It shall be collected and provided to the welfare board of the building workers.
Every employer liable to pay cess shall have to furnish returns otherwise, a notice shall be given regarding the same.
The appropriate authority shall decide the cess payable by an employer, depending on the returns he furnished.
A person who is employed or engaged in any work relating to the promotion of sales or business or both is known as sales promotion employees. The Parliament of our country passed separate legislation to safeguard their rights and regulate their conditions of service in 1976: The Sales Employees (Conditions of Service) Act.
Primary Objective
The Sales Promotion Employees (Conditions of Service) Act, 1976 was enacted with the object of regulating the conditions of service of sales promotion employees in certain establishments.
Applicability
It extends to the whole of India. It shall be applicable to every establishment engaged in the pharmaceutical industry. However, the Central Government may, by notification in the Official Gazette, may apply this Act to any establishment engaged in any notified industry.
Key Provisions
The Central Government may declare certain industries as notified industries if it finds employees of those industries are engaged in any work relating to the promotion of sales or business or both.
Apart from holidays such as casual leave or other kinds of leave as may be prescribed, a sales promotion employee shall also be granted earned leave and leave on a medical certificate.
Every employer shall issue an appointment letter to a sales promotion employee in the prescribed manner.
The provisions of the Workmen’s Compensation Act, 1923, the Industrial Disputes Act, 1947, the Minimum Wages Act, 1948, the Maternity Benefit Act, 1961, the Payment of Bonus Act, 1965 and the Payment of Gratuity Act, 1972 shall be applicable to sales promotion employees.
In 1988, the Labour Laws (Exemption from Furnishing Returns and Maintaining Registers by Certain Establishments) Act came into force to ease down the process of furnishing returns and maintenance of registers in relation to small establishments. Employers in small establishments were exempted from obeying the complex processes involved in furnishing returns and maintaining registers.
Primary Objective
This Act was enacted for the purpose of simplifying the procedure for furnishing returns and maintaining registers in relation to establishments employing a small number of persons under certain labour laws.
Applicability
It extends to the whole of India.
Key Provisions
On the commencement of this Act, an employer of any small establishment to which a Scheduled Act applies shall be exempted from furnishing the returns or maintaining the registers required to be furnished.
The commencement of this Act shall not affect any provision of a Scheduled Act that was followed in any small establishment in accordance with the Scheduled Act.
The Central Government may, by notification in the Official Gazette, amend any form listed in the Second Schedule of the Act.
Statutes relating to Equality and Empowerment of Women
A slew of statutes was passed by the Parliament of our country to prevent discrimination against employed women. In most of the establishments, the wages of women were lesser than that of men even though both men and women do the work of similar nature. Moreover, women were often asked to work overtime without any additional wage, and in many cases, they were dismissed by their employers during the maternity period. By and large, women were exploited by their employers, which discouraged women from doing any work. The policymakers of our country passed several laws to ensure proper representation of women in the workforce. Some of the statutes are discussed below.
The Maternity Benefit Act, 1961 was a great step taken by the Government of India to protect the employment of women while they undergo maternity. Before the enactment of this Act, the employers used to deduct the salary of a woman during her maternity period and some of the employers also used to dismiss them. This Act also includes several maternity benefits that an employer is liable to provide to every woman.
Primary Objective
The Maternity Benefit Act, 1961 was enacted with the prime object of regulating the employment of women in certain establishments for certain periods before and after child-birth. A woman shall also be entitled to get the maternity benefits under the provisions of this Act.
Application
It extends to the whole of India. It is applicable to every factory, mine or plantation including any such establishment belonging to Government and to every establishment in which persons are employed to showcase equestrian, acrobatic or other performances. Moreover, this Act extends to every shop or establishment wherein 10 or more persons are employed, or were employed on any day of the preceding twelve months.
Key Provisions
No employer shall knowingly employ a woman for a period of six weeks following the day of her delivery. In addition, no woman shall work in any establishment during the six weeks from the date of her delivery.
Every woman shall be entitled to receive her maternity benefits from her employer at the rate of the average daily wage for the period of her actual absence, provided the woman has worked not less than 80 days in the twelve months immediately preceding the date of her expected delivery.
Every woman shall get nursing breaks to look after her child, apart from the interval for rest.
Every establishment wherein fifty or more employees are employed shall have the creche facility.
An employer shall not dismiss any woman who makes her unavailable for work in accordance with the provisions of this Act.
To fix the gender pay gap that existed in the majority of establishments, the Equal Remuneration Act was passed in 1976. Before the enactment of this Act, women were usually paid lower wages than men even after doing the same work or work of similar nature, which discouraged women from doing work as well. The Act not only encouraged women to start working but also protected their right to equality.
Primary Objective
The Equal Remuneration Act, 1976 was enacted with the object of providing for the payment of equal remuneration to men and women workers. It also prohibits discrimination against woman, on the ground of sex, when it comes to employment.
Applicability
It extends to the whole of India.
Key Provisions
An employer shall pay equal remuneration to men and women workers employed by him if they perform work of similar nature. He can not discriminate against his employees on the ground of sex. To comply with the provisions of this Act, an employer shall not reduce the salary of any of his employees.
No employer shall discriminate against women when it comes to recruitment for the work of a similar nature, promotions, training or transfer, except where the employment of women in such work is prohibited.
The appropriate Government may constitute an Advisory Committee to take suggestions on how to increase the employment opportunities for women and to determine the extent to which women may be employed in such establishments or employments.
Prohibitive Labour Laws
Prohibitive Labour Laws were formulated by our legislators to ensure the extermination of bonded labour, child labour, sexual harassment of women at the workplace, and at the same time, these laws regulate the working conditions of young employees and women. Before the enactment of these laws, employers used to exploit child labourers and bonded labourers at a massive scale. The working conditions of women were dismal and they were also traumatised sexually. Therefore, a slew of such laws was enacted to curb the illegal practices of employers.
Bonded labour was a practice in which employers used to give loans at a high rate of interest to workers and in most of the cases, Primary Objective workers, earning a low wage, failed to return the loan to their employers. For the recovery of loans provided to workers, they were coerced to work as bonded labourers. To end the practice of bonded labour across the country, the Bonded Labour System (Abolition) Act, was passed in 1976.
Prime Objective
The Bonded Labour System (Abolition) Act, 1976 was enacted with the object of abolishing bonded labour system to prevent the physical and economic exploitation of the weaker sections of the people.
Applicability
It extends to the whole of India.
Key Provisions
The bonded labour system has been abolished and every bonded labourer has been absolved of rendering bonded labour.
Every agreement, custom or tradition, contract or other instruments because of which a person is liable to work as a bonded labourer shall be void and inoperative.
A bonded labourer shall be absolved of paying any bonded debt on the commencement of this Act. No suit shall lie against the bonded labourers in any civil court for the recovery of bonded debt. After the commencement of this Act, the property forcibly taken from a bonded labourer or a member of his family or other dependents for the recovery of bonded debts shall be returned by the creditor.
All property of a bonded labourer shall be freed from any mortgage, charge, lien or other incumbrances on the commencement of this Act. All property shall be restored to him that was in the possession of the creditor due to bonded debt.
No bonded labourer who has been absolved of rendering services as a bonded labourer shall be evicted from the residential premises in which he was living on the commencement of this Act.
Before the enactment of the Child Labour (Prohibition and Regulation) Act,1986, there were various acts which proscribed the employment of children below 14 years and 15 years in certain employments, but there was no such law in which proper guidelines were enlisted to categorise the employments hazardous or non-hazardous for the children to work in. There was no law regarding the regulation of the working conditions of the children during the course of employment. That’s why the Child Labour (Prohibition And Regulation) Act was enacted to protect the children from being exploited and to protect their basic rights as well.
Primary Objective
The Child Labour (Prohibition And Regulation) Act, 1986, was enacted to regulate the child labour practices in India. It prohibits the engagement of children in certain employments and regulates the conditions of work of children in those employments in which they are allowed to work.
Application
It applies to the whole of India. It shall be applicable to every occupation and process that are not mentioned in Part A and Part B of the schedule respectively.
Key Provisions
No child shall be employed in any of the occupations and processes specified in Part A and Part B of the Schedule respectively.
In any establishment wherein a child is permitted to work in accordance with the provisions of this Act, he shall be allowed to work for such a number of hours as may be prescribed for such establishment. He shall not be allowed to work for more than three hours before he gets an interval for rest of at least half an hour. Moreover, he shall not work for more than six hours on any day, including his period for rest and the time spent in waiting for work. The working time shall not spread between 7 p.m. and 8 a.m.
The appropriate Government may, by notification in the Official Gazette, make rules and regulations for health and safety of children permitted to work in any establishment.
The Beedi and Cigar Workers (Conditions of Employment) Act was given nod by the parliament of our country in 1966. Not only this Act regulates the employment of beedi and cigar workers but this Act also prohibits the employment of children in any beedi and cigar establishments and regulates the work of women and young people.
Primary Objective
The Beedi and Cigar Workers (Conditions of Employment) Act, 1966 was enacted with the object of providing for the welfare of workers in beedi and cigar establishments and it also lays down guidelines regarding the conditions of their work. This Act also prohibits the employment of children and the employment of women and young people during certain hours.
Applicability
It extends to the whole of India. It is applicable to those establishments wherein manufacturing process of beedi and cigar is carried out. It may be private homes or industrial premises.
Key Provisions
Suitable and effective arrangements shall be made to provide cleanliness in industrial premises, drinking water facilities, sufficient latrine and urinal accommodation, ventilation, washing facilities, first aid, canteens and creches.
No employee shall work for more than five hours without having an interval for rest of at least half an hour.
An employee in any industrial premises shall not be made to work for more than ten and a half hours in any day, inclusive of the interval for rest.
Under the provisions of this Act, no child shall be allowed to work in any industrial premises.
Women or young people shall be allowed to work in any industrial premises between 6 a.m. and 7 p.m.
Not only does an employed woman face discrimination in terms of working condition but she also faces sexual harassment at the workplace. Apart from framing laws to ensure equal treatment of women at the workplace, the Sexual Harassment at the Workplace (Prevention, Prohibition and Redressal) Act was formulated to make sure that neither employer nor employee can sexually harass a woman during the course of employment.
Primary Objective
The Sexual Harassment at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted with the object of providing protection against sexual harassment of women at workplace. This Act also includes the provisions regarding the prevention and redressal of complaints of sexual harassment.
Applicability
It extends to the whole of India.
Key Provisions
No woman shall be sexually harassed at the workplace. If anyone makes an explicit promise of preferential treatment in her employment, an explicit threat of detrimental treatment in her employment, an explicit threat about her present or future employment status or creates a hostile work environment for her, it shall amount to sexual harassment.
Every employer shall constitute a committee to be known as the Internal Complaints Committee to address the complaints of sexual harassment.
A local committee shall be constituted in a district to address the complaints of sexual harassment from establishments wherein the Internal Complaints Committee has not been constituted because of less number of workers.
Every employer shall provide a safe working environment for women and organise awareness programmes regarding the treatment of women at the workplace at regular intervals. He shall also provide necessary facilities to the Internal Committee for conducting an inquiry upon the complaint of an aggrieved woman. If she chooses to file a complaint under the Indian Penal Code, the employer shall assist her.
Laws relating to Employment and Training
Laws were passed to make employment opportunities available to unemployed persons, having the required educational skills and experience. In addition, laws were passed to impart practical training, especially to young people so that they could get employment after learning the required skills. These laws were primarily made to uproot unemployment and encourage the unemployed youth to grab employment opportunities with both hands.
In 1961, the Apprentices Act was presented in the Parliament and on January 1, 1963, it came into effect. The legislation permitted the training of trade apprentices so that they could be transformed into skilled craftsmen, which in turn, would increase their employment opportunities. This Act lays down the guidelines regarding the training of an apprentice and the facilities that must be provided to him.
Prime Objective
The Apprentices Act, 1961 was enacted with the object of providing for the regulation and control of training of apprentices.
Applicability
It extends to the whole of India. This Act applies to that area or industry as an area or industry, specified by the Central Government by notification in the Official Gazette.
Key Provisions
A person shall qualify as an apprentice to undergo apprenticeship training in any designated trade if his age is not less than 14 years and he has acquired prescribed standards of fitness and education. In the case of designated trades related to hazardous industries, his age should not be less than 18 years.
Every employer shall make effective and suitable arrangements in his workplace to impart a course of practical training to every apprentice. Those trade apprentices who have not undergone institutional training in a school or other institutes recognised by appropriate authorities shall be imparted the course of basic training. After undergoing the course of basic training, an apprentice can get admission in the workplace for practical training.
Before the expiry of the period of training, an apprentice shall endeavour to transform himself into a skilled craftsman. Moreover, he shall attend practical and instructional classes regularly and obey the orders of his employers and superiors.
After the expiry of the period of training, an apprentice may take a test to be conducted by the National Council or an appropriate agency authorised by the Union Government, If he succeeds the test, he shall be awarded the certificate of proficiency in the trade by the National Council.
An Employment Exchange is an organisation that aids unemployed persons to get employment as per their educational qualification and experience. In 1959, the Employment Exchanges (Compulsory Notification of Vacancies) Act was passed which made it mandatory for every establishment in the public sector to notify the number of vacancies before filling them up so that unemployed persons could apply for those vacancies.
Primary Objective
The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted with the object of providing for the compulsory notification of vacancies to employment exchanges.
Applicability
It extends to the whole of India. It is applicable to every establishment in the public sector. The appropriate Government may, by notification in the Official Gazette, may apply this Act to establishments of the private sector as well.
Key Provisions
This Act shall not apply to vacancies in any employment in agriculture, any employment in domestic service, any employment to do unskilled work, any employment connected with the staff of the Parliament, any employment the total duration of which is less than three months. This Act shall not apply to those vacancies which are supposed to be filled by the promotion of existing employees or by the absorption of the surplus staff. Moreover, it is not applicable to vacancies in employment in which the monthly wages are less than 60 rupees.
An employer in every public sector establishment before filling up any vacancy in any employment shall notify that vacancy to employment exchanges. An employer in every private sector establishment shall also follow the same process before filling up any vacancy, provided the appropriate Government releases such a notification in the Official Gazette.
The Shops and Establishments Act, 1953 came into effect in 1953 in order to organise the unorganised sector of our country since 94 per cent of India’s working population is engaged in the unorganised sector. This Act basically regulates the conditions of service in the unorganised sector so as to protect an employee from experiencing exploitation during the course of employment. Moreover, this Act aims at providing benefits to the employees of the unorganised sector, just like the benefits given to an employee of the organised sector.
Primary Objective
The Shops and Establishments Act, 1953 was enacted with the object of providing statutory rights and obligations to both employers and employees in the unorganised sector of employment.
Applicability
Every state has framed its own rules for this Act. It is applicable to all persons employed in an establishment with or without wages, except the members of the employer’s family.
Key Provisions
Every employer of a shop or establishment shall compulsorily make an application to register his shop or establishment within thirty days of commencement of work.
The closure of the establishment shall be communicated within 15 days from its closure.
This Act not only regulates the working conditions of employees but also the benefits that should be given to them.
It prescribes the working hours of an employee and the holidays he is entitled to.
It also contains the provisions regarding the employment of children, women and young people.
It also prescribes the wages of employees engaged in such establishments.
Conclusion
The Central Government, as well as the State Government, have enacted a slew of legislation not only to uphold the basic rights of labourers but also to protect them from the exploitation of their employees. Moreover, these acts also make an employer provide several benefits to his employees. Despite the enactment of labour laws, many employers are still committing atrocities on their employees because the labourers are still unaware of their rights or the authority responsible for ensuring the implementation of these laws is not effectively implementing it. Hence, the appropriate Government must ensure that labourers to be informed about their rights and the authority do its role in implementing every labour law.
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This article has been written by Prateek Giri Goswami.
Introduction
The term ‘Justice’ has various connotations in the society, It has been construed in every colourful manner befitting an individual’s conscience. Punishment and justice are entwined in ways to maintain order in society. When a wrongdoer goes unpunished, the possibility of any kind justice ceases to exist, Justice cannot be served without the necessary concomitant of punishment. Hence, it can be said without exaggeration that punishment is the fulcrum in securing justice. Under this very context of punishment, comes the death penalty which is also infamously called capital punishment. Capital punishment is the practice of executing someone as punishment for a specific crime after a proper legal trial. Execution of person for some particular crime is not a new notion, its provenance can be traced back to time immemorial, it has its roots in various religious texts and it has been embraced in almost every community in the past but it has become the most controversial type of punishment in the modern times with the contention that sanctity of human life outweighs securing of justice through capital punishment and the belief in the rehabilitation of a person led to the condemnation of capital punishment. In India capital punishment is awarded only for heinous crimes, In December 2007, India voted against a United Nations General Assembly resolution calling for a moratorium on the death penalty[1], again in November 2012, India again upheld its stance on capital punishment by voting against the UN General Assembly draft resolution seeking to end the institution of capital punishment globally[2], the very existence of capital punishment in the legal system of India since independence shows the entrenched stance of government favouring it and it also represents the will of people of the society. This article will emphasize the importance and need for the existence of capital punishment and the researcher has researched the juxtaposition of capital punishment and other restorative forms of punishment.
The stigma attached to capital punishment
The capital punishment is often condemned with the contention that it infringes the most embraced fundamental right bestowed in the constitution of India which is right to life. It is been contended that every human life is valuable and the sanctity of human life is sacrosanct that even the state has no right to take a life of human being regardless of whatever a person has done, but let’s not carry on with the idea that the notion of capital punishment offends the sanctity of life, it has roots in ancient texts like Capital punishment is allowed under Hindu tradition. Lord Rama is the embodiment of dharma, yet he killed King Bali, who had stolen his own brother’s wife[3]. In Bhagwad Gita it is supported that a murderer should be condemned to death so that in his next life he will not have to suffer for the great sin he has committed[4]. Also in the Vishnu Smriti, an ancient law book of the Hindus[5], It is stated that “Great criminals should all be put to death… Let the king put to death those who forge royal edicts”. Also in Islam to it is stated that the Qur’an mandates that everyone has a right to life unless a court of law demands to kill: “Nor take life which Allah has made sacred – except for just cause.”[6]
Further in the dimension of jurisprudence, there are two theories which bolster the validity of capital punishment they are:
Retributive theory of punishment: The most classic form of retributivism is derived in the Code of Hammurabi’s lex talionis, which stands for ‘an eye for an eye and a tooth for a tooth’. Though this notion is not stringently followed anywhere in the world anymore the particular concept somewhat gives justification for the validity of capital punishment.
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Hegel gave his theory in the early nineteenth century that the idea of punishment is to restore balance in the world by punishing the offender in the same way[7]. According to him, the criminal disregards the victim’s rights and his value of life, while committing a crime. If we leave the crime unpunished, a wrong and injustice will spread in society. But by punishing the criminal, the status quo ante crime is restored. The following view was supported by Hampton who said that by the very act of commission of a crime, the criminal fails to respect the victim’s value as a human being. Retributive punishment vindicates “the value of victim denied by the wrongdoer’s action through the construction of an event that not only repudiates the action’s message of superiority over the victim but does so in a way that confirms them as equal.”[8]
In the views of H.L.A Hart, punishment should not be for the sake of denunciation only but an appropriate or deserved punishment does serve as a denunciation. He further elaborated that, we do not live in a society in order to condemn though we may condemn it in order to live. Morris opined that by punishing wrongdoers every individual gets the education about the particular significance of the evil underlying offences and the degree of seriousness and understands what are actions that are off-limits. Hampton gave his views that punishment represents the suffering and agony inflicted upon the victim and hence by giving equal punishment to the offender sets an example about the immorality of the action.
The Supreme Court in the Dhananjoy Chatterjee[9] the case held that appropriate punishment is the manner in which the courts respond to society’s cry for justice and that justice demands the imposition of punishment befitting the crime to reflect public abhorrence.
Hence it can be said with the increasing crime rates in India with the increase in the magnitude of brutality of crimes, it is high time for the legislators to make punishment which severe enough to discourage criminal minds, for example, while considering the increase in rapes and sexual misconduct with women especially there is upheaval in the rapes of minors, the state of Madhya Pradesh has included the option of giving death penalty in cases of rape of minor child. Given the current crime rate in the currently certainly now is not the right time to scrap off capital punishment.
Deterrent Theory of punishment: Deterrent theory of punishment basically states that when a crime is committed, punishment must be adequate enough given nature of crime but sometimes the justice speaks in ways to send strong message to the society that some actions are prohibited and if a person commits it while discarding the law of the land the repercussions can be devastating. Basically, the deterrent theory states that punishment should be of a type that can create deterrence in the society regarding the commission of that particular prohibited act of crime. It can be said that capital punishment also fulfils the purpose of creating deterrence in society.
Legal Aspect of capital punishment
As been discussed above the validity of capital punishment faces the biggest challenge that it is in violation of the right to life, the very fulmination against capital punishment begins with this contention. But if we scrupulously examine article 21 of constitution of India or any other fundamental rights bestowed in the constitution it can be undoubtedly concluded that not a single fundamental right is absolute, everything in the current world is so co-related to each other that no right can be independent and absolute, they are subjected to the law of the land and the will of the state which serves the greater purpose of maintaining order in the society. Now article 21 of the constitution of India states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law.” So technically it can be said if capital punishment is part of our legislation and our justice system then it comes under the purview of procedure established by law, hence technically there is no violation of article 21 by the existence of capital punishment.
Judiciary has also reiterated the need for having capital punishment as an option, In Jagmohan Singh vs. State of Uttar Pradesh[10], the five-judge bench of the Supreme Court, by a unanimous verdict, upheld the constitutional validity of the death penalty held that capital punishment is not violative of Articles 14, 19 and 21 and. In this case, the validity of the death sentence was challenged on the ground that it was violative of Articles 19 and 21 because it did not provide any procedure. The Supreme Court held that the choice of death sentence is done in accordance with the procedure established by law. It was observed that the judge makes the choice between a capital sentence or imprisonment of life on the basis of circumstances and facts and nature of crime brought on record during a trial.
The question was again considered in Bachan Singh vs. State of Punjab[11] in which by a majority of 4 to 1 (Bhagwati J.dissenting). It expressed the view that death penalty, as an alternative punishment for murder is not unreasonable and hence not violative of articles 14, 19 and 21 of the Constitution of India, because the “public order” contemplated by clauses (2) to (4) of Article 19 is different from “law and order” and also enunciated the principle of awarding death penalty only in the ‘rarest of rare cases.
Hence the supreme court though limited and confined the principle of capital punishment but it never ordered a blanket ban on its practice and the rationale behind keeping capital punishment in the legal system is been very well explained in the above two judgments of the supreme court of India. The Judges are always very pedantic before awarding capital punishment. Even the highest court of India agrees with the fact that some acts are so wicked that capital punishment becomes worth giving.
In the Indian penal code, a death sentence can be awarded in various offenses like criminal conspiracy, murder, waging war against the government, abetment of mutiny, dacoity with murder, and anti-terrorism.
Besides the Indian Penal Code, a series of other legislation was also enacted by the Parliament of India that has provisions for the death penalty. Like in Sati’s practice in which the bride used to get burned after the demise of her husband. That particular practice was epidemic in a particular community of India once upon a time. The Commission of Sati (Prevention) Act, 1987 Part. II, Section 4(1), if any person commits sati, whoever abets the commission of such sati, either directly or indirectly, shall be punishable with death[12].
In recent years, the death penalty has been imposed under new anti-terrorism legislation for people convicted of terrorist activities[13].On 3 February 2013, after witnessing the massive public outcry over a brutal gang rape in Delhi, the Government of India passed an ordinance which applied the death penalty in cases of rape that leads to death or leaves the victim in a “persistent vegetative state”[14].The death penalty can also be handed down to repeat rape offenders under the Criminal Law (Amendment) Act, 2013
One of the remedies against capital punishment is given under Articles 72 and 161 of the Constitution of India, the President, and Governors, have the power “to grant pardons, reprieves, respites or remissions of capital punishment”. There are many mercy petitions filed by the offenders for their offense to the president or governor. That is known as the pardoning power of the president or governor.
Need and importance of capital Punishment
The researcher seeks to establish the fact that there is a need to keep capital punishment in the legal system because its benefits outweigh its criticizing contentions. There are various reasons to keep capital punishment in the justice system like:-
Deterrence Factor: From time to time this assertion has become a matter of debate, some analyst believe that capital punishment does discourage a person from committing a vile act like Michael Summers, Ph.D., MBA, Professor of Management Science at Pepperdine University, wrote in his report:
“Our recent research shows that each execution carried out is correlated with about 74 fewer murders the following year. The study examined the relationship between the number of executions and the number of murders in the U.S. for the 26-year period from 1979 to 2004, using data from publicly available FBI sources. There seems to be an obvious negative correlation in that when executions increase, murders decrease, and when executions decrease, murders increase”[15].
Similarly, Paul H. Rubin, Ph.D., Professor of Economics at Emory University, wrote in his report[16] that there is a relation between capital punishment and homicide and he also approved the fact that capital punishment does have a deterrent effect on society.
while some assert that capital punishment has no effect over the malice intent of a person whatsoever.
Nevertheless the fact that the death penalty discourages people is not a scientifically proven fact but one cannot also emphatically disregard the possibility of the death penalty’s deterrence effect. If a person intends to kill, not out of some degree of temporary insanity or driven by extreme emotion, nothing is a deterrent, but in other circumstances, there is the possibility that fear of death might change a person’s mind. One of the reasons behind it is that if we look into the human instincts and psychology it is confirmed that the fear of death is in our human nature, it can encourage a person to do something while it can refrain a person’s conscience too from committing any act. It can be said undoubtedly that fear of death is one of the most powerful impulses in the human body.
Prevention of Recidivism: Some people are beyond repair due to there innate sense of wickedness. Recidivism is the most dangerous form of criminal activity. Repeated offenses indicate a reluctance to face socially useful lives. When a person commits a crime it becomes the duty of the state not only to bring justice to the victim but also to eliminate the factors which are a potential threat to the society. And it should also be noted that criminals with demented personalities can influence or brainwash other inmates in the jail certainly they are no good to the society.
Further, the threat is not only to the external society from the vicious criminals but a person with high profile criminal background who is looking 20,30 years to life has nothing to lose, Now a deranged person who has an appetite and proclivity for killing is a threat to other inmates too and are numbers of incidents of contract killing inside jails, mostly some under trail criminal who can reveal the identity of others also by paying to criminals who are facing life sentences. So the criminals who are facing a lifetime in jail becomes a medium to spread crime inside jails, no good can come out some human beings to society.
Help to the police: Plea bargaining is used in most countries. It’s the process through which a criminal gets a reduced sentence in exchange for providing help to the police. It is one of the most effective methods to glean information and gathering evidence for other co-offenders. Where the possible sentence is death, the prisoner has the strongest possible incentive to try to get their sentence reduced, even to life imprisonment without the possibility of parole, and it’s argued that capital punishment, therefore, gives a useful tool to the police. So we can say the fear of death due to the probability of capital punishment is can help in such ways. This is a very feeble justification for capital punishment and is rather similar to arguments that torture is justified because it would be a useful policy tool.
Restorative reforms
Restorative reform is a new concept in the justice system, It is a brainchild based on rehabilitation of the offender as well as the victim together. Restorative reforms emphasize the process of mediation between the offender and victim In this system, instead of any punishment being served to the offender. The victim, offender, and the community participate together in a process of restitution. The offender takes responsibility for his offense and he gets encouraged by the community to overcome the damage inflicted by him upon the victim. Hence, the idea of punishment is completely discarded and is thus opposite to the idea of retributivists. Now such a system becomes redundant when there is a murder or bigger heinous crimes in which there is victim left for any rehabilitation and restitution.
It must be noted that the theory of retribution cannot be applied in all cases. The notion of proportionality in the retributive system of justice has some pros and cons. However, in many cases like when a juvenile is an offender, the gravity of punishment must be considered assiduously. Hence, a lenient and reformative system of punishment should be observed in such cases.
Hence it can be ascertained that the application of restorative reforms and application of capital punishments are mutually exclusive, one cannot apply restorative reforms in crimes which leads to the possibility of capital punishment and vice versa.
Conclusion
India is a country with a colossal population and there is not much indication of abatement in the crime rate. Given the current scenario of Indian society we are witnessing the audacity of mobs killing in the name of cow protection and other trivial reasons, In villages, adults get beheaded in the name of honor killing, Rapes and other crimes of passion are becoming epidemic and what not. The research wants to assert the fact that though the restorative reforms are an effective way of rehabilitation, it is no replacement of capital punishment and the purpose which is fulfilled by keeping capital punishment in the justice system. Also, the judges who order the capital punishment are very pedantic and scrupulous while observing the circumstances and other factors regarding a crime, the courts seldom give capital punish to a convict and further we have a long justice system to seek vindication with several appellate courts the possibility of an innocent being executed gets negated.
To quote John McAdams[17]: “If we execute murderers and there is, in fact, no deterrent effect, we have killed a bunch of murderers. If we fail to execute murderers, and doing so would, in fact, have deterred other murders, we have allowed the killing of a bunch of innocent victims. I would much rather risk the former. This, to me, is not a tough call.”
Capital punishment plays a vital role in delivering justice and it can also be considered as a proactive measure in mitigating the crime rate of the country. We often see in a number of movies in which the protagonist seeks revenge upon the villain by killing to avenge his family or friend and all of us embrace that moment without anyone’s objection towards it because it reflects as a society who we are it feels like justice. And it is the accepted notion in the society of India that if a person commits a vile, despicable act he has to bear the brunt of it and face the consequences of it. The axiom that Human life is precious and valuable undoubtedly correct but there is a certain exception too.
Endnotes
[1] General Assembly GA/10678 Sixty-second General Assembly Plenary 76th & 77th Meetings”. ANNEX VI. Retrieved 30 July 2013
[2] General Assembly GA/11331, Sixty-seventh General Assembly Plenary 60th Meeting”. 20 December 2012. ANNEX XIII. Retrieved 30 July 2013
[3] Parmatmananda Saraswati, Co-ordinator of the Hindu Dharma Acharya Sabha, in an Oct./Nov./Dec. 2006 article “Capital Punishment: Time to Abandon It?” published in Hinduism Today
[4] Srila Prabhupada, founder of the International Society for Krishna Consciousness (ISKCON), also known as the Hare Krishna Movement, in his 1968 book Bhagavad-Gita
[5] translated by Julius Jolly and printed in 1880 as the seventh volume of the Sacred Books of the East collection
[6] ABDULLAH YUSUF ‘AL1, THE MEANING OF THE HOLY QUR’AN 17:33 ( 1 1 1ed. 2004) (1425
A.H.).
[7] Hegel, Philosophy of Right (1st, Dyde, 1952) 100
[9] Dhananjoy Chatterjee v State of West Bengal 1994 SCR (1) 37
[10] Jagmohan Singh vs. State of Uttar Pradesh, A.I.R. 1973, S.C 947
[11] Bachan Singh vs. State of Punjab, A.I.R. 1980, S.C 898.
[12] “The Commission of Sati (Prevention) Act, 1987”. PART II, Punishment for offenses relating to Sati. Archived from the original on 25 August 2013. Retrieved 30 July 2013
[13] Majumder, Sanjoy. “India and the death penalty.” BBC News 4 August 2005
[14] “BBC News – India president approves tough rape laws”. Bbc.co.uk. 4 February 2013. Retrieved 23 April 2013.
[15] Nov. 2, 2007 article “Capital Punishment Works” in the Wall Street Journal
[16] Feb. 1, 2006 testimony “Statistical Evidence on Capital Punishment and the Deterrence of Homicide” before the US Senate Judiciary Committee on the Constitution, Civil Rights, and Property Rights.
[17] Marquette University, Department of Political Science
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“To shut up a man in prison longer than really necessary is not only bad for the man himself but also it is a useless piece of cruelty, economically wasteful and a source of loss to the community.”[1]
Remission refers to the reduction in the quantum of a punishment without changing the type or character of the punishment to which a convict has been sentenced. In simpler terms, the rest of the sentence need not be undergone. For instance, rigorous imprisonment for 5 years may be remitted to 2-year rigorous imprisonment.
Major provisions governing remission in the Indian context are narrated in the Constitution of India and Criminal Procedure Code 1973. As per Prisons Act 1894, remission system refers to the rules for the time being in force regulating the award of marks to, and the consequent shortening of sentences of, prisoners in jails.
Object of Remission
The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. Remission affords a remedy in such cases.
Nature of Remission
Grant or non-grant of remission is the prerogative to be exercised by the competent authority and it is not for the Court to supplant that procedure. Grant of premature release is not a matter of privilege but is the power coupled with duty conferred on the appropriate Government to be exercised by the competent authority after taking into account all the relevant factors, such as it would not undermine the nature of crime committed and the impact of the remission that may be the concern of the society as well as the concern of the State Government.[2]
Legal effect of Remission
The legal effect of remission is wholly different from a judicial supersession of the original sentence. In Kehar Singh’s case[3], the Hon’ble Apex Court observed that in exercising the power under Article 72 “the President does not amend or modify or supersede the judicial record. …And this is so, notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him.” The President “acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as an extension of it”. To carry the judgment into effect is an executive function, whereas to cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment, but does not alter it qua a judgment.
Grant/Denial of Remission
The Senior Jailor of the prison maintains a Jailor’s Report book as in Form no. V.[4] Form no. V carries remarks about the behaviour of the prisoner and is a relevant consideration to adjudge the grant of remission at the time of evaluating the remission application of the prisoner.
Click Above
If the prisoner indulges in the following acts which constitute as prison offences[5] during his/her term of imprisonment, then his/her privilege to be admissible under remission system can be lost[6] as per the discretion of the Superintendent:
Such willful disobedience to any regulation of the prison as shall have been declared by rule made under Section 59 (which grants the state government to make rules for the prison relating the awarding of remarks and reducing the sentence) to be a prison offence;
Any assault or use of criminal force;
The use of insulting or threatening language;
Immoral or indecent or disorderly behaviour;
Willfully disabling himself from labor;
Disobediently refusing to work;
Filing, cutting, altering or removing handcuffs, fetters or bars without due authority;
Willful idleness or negligence at work by any prisoner sentenced to rigorous imprisonment;
Willful mismanagement of work by any prisoner sentenced to rigorous imprisonment;
Willful damage to prison property;
Tampering with or defacing history-tickets, records or documents;
Receiving, possessing or transferring any prohibited article;
Pretending to be ill;
Willfully bringing a false accusation against any officer or prisoner;
Omitting or refusing to report, as soon as it comes to his knowledge, the occurrence of any fire, any plot or conspiracy, any escape, and any attack or preparation for attack upon any prisoner or prison official;
Conspiring to escape, or assist in escaping, or to commit any other of the offences aforesaid.
The Hon’ble Apex Court[7] has laid down the following guidelines to consider in granting remission:
Whether the offence is an individual act of crime without affecting the society at large?
Whether there is any fruitful purpose of confining of this convict anymore?
Whether there is any chance of future recurrence of committing the crime?
Whether the convict has lost his potentiality in committing the crime?
The socio-economic condition of the convict’s family.
Power to grant Remission
Under the Constitution of India 1950
PRESIDENT
According to Article 72, the President has the power to remit the sentence of any person convicted of any offence in
(a) All cases where punishment or sentence is imposed by a Court-martial (judicial court for trying members of the armed services accused of offences against military law)
(b) Cases where punishment is result of an offence against laws in which the executive power (State/Central) extends.
(c) Cases of death sentence.
GOVERNOR
The power of Governor to remit sentence conferred by Article 161 is the same that of as president with the distinction that that the Governor can remit sentence of any person convicted of any offence against any law relating to a matter to which the executive power of only the State (State government) extends.
Exceptions
The power conferred to president cannot affect the power conferred on law on any officer of Armed forces of the Union to remit, suspend or commute the sentence passed by a Court Martial.
Power of the president can not affect the Governor’s power to remit, suspend or commute a death sentence.
The President and the Governors in discharging the functions under Article 72 and Article 161 respectively must act not on their own judgment but in accordance with the aid and advice of the ministers.[8]
Under Criminal Procedure code 1973
The convicted person’s punishment, whole or part, can be remitted by an appropriate government, any time, with or without any conditions which the person sentenced accepts.[9]
The appropriate government cannot initiate the process of remission on its own will but only on the application by the convict.[10]
The application is considered usually by State Sentence Review Boards or Review committees set up the respective government.
The Indian States used to follow different standards for granting remission of sentence. After the National Human Rights Commission (NHRC) appointed a committee to take cognizance of the same, the committee recommended constitution of State Sentence Review Boards to take up cases of long-serving prisoners who have applied for release.
The commission issued broad guidelines in November 1999 to ensure standardization in the matter. Some modifications later and another circular was issued in September 2003. Pursuant to the same, various States constituted Sentence Review Boards which consider prisoners’ application for remission.
When an application for remission of a sentence is made to the appropriate government, the appropriate government should mandatorily[11] seek the opinion of the presiding judge of the court, before which the conviction was confirmed, along with the reason for his/her opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.[12]
The grant of remission maybe conditional, i.e., subject to a condition on which a sentence is remitted which needs to be fulfilled by the person in whose favor the sentence is remitted.[13]
If on any condition the sentence has been remitted, in the opinion of the appropriate government not fulfilled, the appropriate Government may cancel the remission, and thereupon the person in whose favor the sentence has been remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.[14]
The provisions of remission shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.[15]
The application is to be made to the Central Government in cases where the sentence is for an offence relating to sub-section (6) or any law relating to a matter to which the executive power of the Union extends.
In other cases, the application is to be made to the Government of the State within which the offender is sentenced or the said order is passed.[16]
Restrictions on Remission
When there is an imprisonment for life is sentenced to a convict, where for that particular offence death is also one of punishments (imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by laws, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life) such person should not release from the prison unless he/she has completed 14 years of his/her imprisonment. [17] The State in its wisdom could still easily provide that life imprisonment shall not be subject to any remission or provide limitations on the same.[18]
For the following offences[19] the State Government can grant remission only after consultation with Central Government:
Cases investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any other Central Act.
Cases involving the misappropriation or destruction of, or damage to, any property belonging to the Central Government.
Cases where offence was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty.
Here the the word “consultation” must be read as “concurrence” of the central government.[20]
The power of remission will not be available[21] where life sentence has been awarded specifying the following:
The convict shall undergo life sentence till the end of his life without remission or commutation,
The convict shall not be released by granting remission or commutation till he completes a fixed term such as 20 years or 25 years or like.
If more than one life sentences are awarded to the prisoner, the same would get superimposed over each other. This will imply that in case the prisoner is granted the benefit of any remission or commutation qua one such sentence, the benefit of such remission would not ipso facto extend to the other.[22]
Duties with respect to Remission
It is the duty of the Senior Jailor at the weekly parade to ensure that the Jailor has read out the prescribed circulars about remission rules, rewards, punishment and escapes, and certify the same in the Jailor’s Report Book in Form No. III.[23]
During regular inspections, the Inspector in prison shall personally visit every prisoner and ascertain whether the provisions of the rules for granting remission, furlough or parole are carried into effect, afford to a prisoner who so desires a reasonable opportunity of making any application or complaint and investigate and pass order on matters relating to prison discipline.[24]
[24] Gujarat Prisons (Staff Function) Rules 1975, S. 8(3)(c).
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This article is written by Hema Modi, a second-year student of Pravin Gandhi College of Law, Mumbai. It provides an overview of the General Exceptions as laid down under Indian Penal Code, its essential ingredients to claim protection under this Chapter and various landmark judgements for better understanding and clarification.
Introduction
Suppose, you have been attacked by an assailant in aggression and by your stimulus, you will definitely try to defend yourself. If, during that defence, there is some hurt caused to the assailant, are you guilty of causing hurt or offence to the aggressor?
Therefore, to protect you or some other person who was at the same position from getting penalised, Chapter IV of the Indian Penal Code, 1860 protects or makes an offence a non-offence. Not only protection out of necessity but various other exemptions are provided if you are insane or intoxicated and many others. Section 76 to 106 provides for the ‘right of the people’ to protect his life and limb and those of others. Different ways and conditions to get protected or to protect someone are laid down further in this article which will be dealt with detail for the reader’s simplicity.
Excusable and Justifiable Exceptions
Generally, a crime is committed when it fulfils the two essentials for constituting the crime. They are: Mens Rea and Actus Reus. Apart from this, the crime committed should be backed by justifications and excuses. Therefore, the general exception under IPC is divided under two heads:
Excusable exception
Justifiable exception
Excusable exceptions: Those exceptions from which the bad character or bad intention of the person committing the crime cannot be inferred are said to be excusable exception to the crime. They include:
Mistake of fact;
Infancy;
Accident;
Insanity;
Intoxication.
Justifiable Exceptions: Those exceptions in which crimes committed are wrongful in normal conditions but due to different circumstances, it was considered to be tolerable and acceptable to everyone are said to be justifiable exceptions. They include:
Judicial act
Necessity;
Consent;
Duress;
Communication;
Trifles;
Private defence.
Object of the Chapter
According to the report of Lord Macaulay, the object of this Chapter was to obviate the necessity of repeating in every clause a considerable number of limitations for the offences committed.
Burden of Proof
The person who is accused of committing the offence has the responsibility of proving that he/she was struck under different circumstances or within special provision or exception provided by this part. For instance, an insane person, if accused, has to prove and establish by any means that he/she is not mentally sound or he had no mens rea to commit that crime.
Standard of Proof
The standard of proof refers to the extent to which the party to burden of proof has to prove its case. It refers to the amount of evidence necessary to prove an ascertain or claim its trial. As it has been already said that the accused has the burden of proof to prove that he is entitled to any of the general exceptions to criminal liability. As to the standard of proof, the Supreme Court has laid down that the accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtained in the case. After due consideration of the evidence, the Court shall decide as to which exception the accused is entitled to and would also check whether he/she would be acquitted of the offence charged or would be liable for a lesser punishment and convict him/her accordingly.
Mistake of Fact
Section 76 and 79 deals with mistake of Fact as a defence to the offence. According to this exception, a person can be excluded from conviction if the act done by him was not intended i.e., the accused had no mens rea to perform that act. This concept is based on the Latin maxim of ignorantia facti excusat. The condition required for attracting this Section is that if the circumstances and the facts were known then the act committed by the accused might have been preventive in doing that action. This defence is mostly provided when proof of intention or foresight is unnecessary.
Also, although an act may not be justified by law, yet if it is done under a mistake of fact, in good faith under the belief that it is justified by law will not be an offence. The question of good faith is always a question of fact to be determined in accordance with the proven facts and circumstances of each case.
In a landmark English case of Tolson, where a woman remarried believing her husband to be dead. The accused woman was convicted of bigamy. But the court held that a bona fide belief was made on reasonable grounds that her husband is dead after desertion for seven years.
Acts Done by Persons Bound by Law or Justified by Law
According to Section 76 of the Act, an accused person in good faith believes himself/herself to be bound by law to that act. Whereas, Section 79 of the Act lays down that an accused person in good faith believes himself/herself justified by law to that act.
There is a thin line of distinction between persons committing the offence considered himself to be bound by law or justified by law. “Bound by law” means that although the true state of the facts show that the offence is committed yet the person under mistake of fact believes that he was bound by law to act in that particular way. For a clear understanding, a servant kills his master at night mistaking him for a burglar who entered his house. Here, the servant was bound by law to protect his master’s house from burglary.
On the other side, “justified by law” means that a person committing the act was empowered by law i.e., done on adequate reasons sufficiently supported by evidence to do that act. For instance, A saw B engaged in inflicting severe blows on C. A caught B in order to hand over him to the police. But later it was found that B was acting in self defence. Here, since A acted in good faith that he was justified by law, he will be excused.
Acts done under Order of a Superior Authority
The maxim respondeat superior is not applicable as a reason in the cases of mistake of fact. Cases, where illegal acts are done by a person on the orders of a parent or a master or a superior, will not be considered to be defence or a reason to be entitled for acquitting under mistake of fact. However, if the order from the superior is in conformity with law, then the accused subordinate person is protected but if the order from the superior is not in accordance with the law, then the subordinate person performing the act cannot claim protection under mistake of fact believing to be bound by law to perform that act.
Moreover, in the case of State of West Bengal v. Shew Mangal Singh, the Supreme Court held that if order by superior is lawful then its obedience is obviously lawful.
Act of State
An act of State is an act done by any representative of the Government’s authority, civil or military, either sanctioned or ratified by the Government. To claim protection under this section, one has to establish:
The accused had authority to act on behalf of the state.
The accused action was outside the law.
Good Faith
‘Good faith’ is defined under Section 52 of IPC which means that an act done with ‘due care and attention’. In order to claim the benefit of mistake of fact under this provision, then the accused has the onus to prove that the belief which they had about their actions being justified in law was in good faith and due care and attention. Absence of good faith is enough to deny him the benefit that he claims.
Difference between Section 79, Indian Penal Code 1860 and Section 197, Code of Criminal Procedure 1973
Section 197 of the Code of Criminal Procedure provides for prosecution of public servants or judges for the acts done while discharging official duties. It is not necessary that a public servant can claim exception of mistake under Section 79 when he is acting or purporting to act with the sanction of the government.
Only those acts will be protected which were done in honest pursuance of official duty under a mistake of fact as to the existence of such sanction or permission by the Government. The act of the public servant must be within the scope of his official duty. For example, a judge will not act or purport to act as a judge when he is committing the offence of accepting bribes while delivering judgements. The best way to test if the act done was in his official capacity is by challenging the act and then asking that particular public servant to reasonable claim that what he did was in virtue of his office.
Judicial Acts
Judicial acts are those acts which are derived from normal exercise of judicial power within proper jurisdiction. They can also be called as “Act of a judge”. The section 77 and 78 of the Indian Penal Code exempts a judge in cases where he proceeds irregularly in the exercise of powers which the law bestows on him as well as where he, in good faith, exceeds his jurisdiction and has no lawful powers.
Object of the Sections
A separate section was included in the general exception of Indian Penal Code for judges especially because a judge has to be indifferent and unbiased while delivering the judgements. Therefore in order to render justice, judges decisions cannot be under scrutiny because even if the judgements pronounced are wrong or not in favour, then the judicial review is a tool for reviewing the judgment. But if the acts are challenged then judges will be bound to act according to the will of the people or government.
Acting Judicially
The phrase “acting judicially” is an essential ingredient for the offence to attract the particular exception to immune the acts of a judge while acting under judicial capacity. When the act done or ordered is in a judicial capacity, his protection is absolute and no enquiry can be entertained against him even if the act done was erroneously or illegally done.
Exercise of Power Believed in Good Faith to be Given by Law
A judge acting in good faith is entitled to the immunity provided by Section 77, even if the court has no jurisdiction to convict an accused. Moreover, the Judicial Officers Protection Act, 1850 protects judicial acts from civil suits if the act done was in good faith that the court had competent authority as well as jurisdiction while doing that act.
Acts Done Pursuant to Judgment or Order of Court
According to Section 78 of the General Exception, if any act is done by any person in furtherance of a judgement or order of a Court of Justice, then he/she shall be protected under this Section.
In a case of Kapur Chand v. State of Himachal Pradesh, a search warrant was issued against a minor married girl by her mother for her recovery. The mother of the girl obtained a search warrant under Section 100 of Cr. P. C. The magistrate having recorded the statement of the girl directed her to be given to her husband. Here, if the husband and his companions try to make her sit in a car, they would not commit offence as they are fully protected under Section 78 of IPC.
The only difference between Section 77 and 78 is that the judicial acts may be protected under Section 78 even if the authorised court has no jurisdiction but in Section 77, the Judge must act within his jurisdiction to be protected by it.
Accident and Misfortune
Accident is a word which is used to indicate a course of events or acts done by a person over which he/she had no control and was unavoidable after taking due diligence and care. Misfortune is a sign of bad luck or undesirable event. Section 80 of IPC immunes a person who does an act in an innocent and lawful manner and without any mens rea for committing an offence. A law provides that a person cannot be punished for an act over which he had no control and the consequences were not probable.
Essential Ingredients
The essential ingredients of Section 80 are:
The act done must be without knowledge and criminal intention of harming or hurting someone else.
The act done must be lawful and it should be done in a lawful manner with legal means.
The act done must be done with proper care and caution.
There must not be probable consequence of offence being committed by the at done.
Absence of Criminal Intention or Knowledge
The two essential elements for committing an offence is mens rea and actus reus. Mens rea being one of the most important elements, if any act was done with the very purpose of committing that act intentionally, then he is said to be liable or punishable under IPC. However, in cases of accident and misfortune, there is something that happens out of the ordinary course of things which was not prudent and no reasonable precautions can be taken against it.
However, in case of Sukhdev Singh v. State of Delhi, the accused pleaded that while doing a lawful act, he accidentally committed murder of deceased. But the evidence showed that accused during the course of scuffle deliberately used gun and fired shots at deceased. Hence, the Supreme Court held that it was not a case of accident covered under Section 80.
A Lawful Act in a Lawful Manner by Lawful Means
An act is said to be done accidentally if it is neither done wilfully nor negligently. For constituting an offence under negligence, a lawful act is said to be done in a lawful manner by illegal means or a lawful act done in an unlawful manner by legal means. For getting oneself acquitted from an offence under the exception of accident, then he/she must have done a lawful act in a lawful manner by lawful means. For better understanding, if two friends agree to accidental injuries in a wrestling bout with each other. Here, if one of them dies in the course, the other can claim protection under this section if there was no foul play within that time, since the wrestling bout is a lawful act done in a lawful manner by legal means.
Medical negligence
Medical negligence under criminal law is that act which is done or failed to be done by any medical practitioner. To prosecute under medical negligence, it has to be proved that in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do so. Moreover, the criminal liability cannot be laid unless the negligence was so obvious and of such a high degree that it would be culpable by applying the settled norms. This was held in the case of Dr Saroja Patil v. State of Maharashtra.
Proper Care and Caution
A person can claim protection for accident only if the act which was done by him was under proper care and caution. Proper care and caution also come under the purview of mens rea. Since, if any act is done without taking proper care and caution then that means that he/she must have the required mens rea for committing that offence.
In the case of State of Orissa v. Khora Ghasi, the court acquitted the accused because he went to the forest to hunt for an animal and with bona fide intention shot an arrow aiming at an animal. Unfortunately, the accused caused the death of a human being hiding behind the bush.
Necessity
The term “necessity” is defined in Black law’s dictionary as a controlling force; irresistible compulsion; a power or impulse so great that it admits no choice of conduct. Section 81 provides for the defence of necessity, which means that if an act which is done might be a crime if it was done only in order to avoid consequences which could have inflicted more harm to the person or property.
Doctrine of Necessity
The doctrine of necessity can be explained as the choice between two evils where the accused chose the lesser one. This doctrine based on ‘Salus populi suprema lex esto’ which means that welfare of people must be supreme and if a person is causing harm to any person or property in order to prevent a greater harm, then it is excusable.
Illustration: A person pulls down houses in order to prevent the conflagration from spreading. He does this with good intention to save human life and property. Here, since the harm was of imminent danger, he is not guilty of the offence.
The doctrine of necessity emanates from Latin maxim “Quod necessitas non hebet leegam” meaning necessity knows no law. However, if the evidence does not show the nature of emergency, then the defence of necessity cannot be taken.
Mens Rea
The element of mens rea must include the guilty mind to commit the offence and inflict harm to other person or property. However, if a person causes the harm without any criminal intention, and merely with the knowledge, he/she will not be held responsible for the result of his act, but the act should be done in good faith to avoid or prevent other harm to person or property.
Preventing or Avoiding Other Harm
The doctrine of necessity can be attracted only when the harm i.e., loss or detriment is caused in order to prevent or avoid harm.
In a landmark case of R v. Dudley and Stephens, a ship was cast away in a storm on the high seas and was compelled to use a lifeboat. Consequently, there was a shortage of food and acute hunger due to which two of the four men decided to kill the third person and satisfy their hunger. The court held that one does not justify murder by killing an innocent person to save one’s own life.
Infancy
The defense of infancy can be taken when the act is done by an infant who is under seven years of age. By presumption of law, an infant under the age of seven is considered to be doli incapax which means that the child cannot constitute the required mens rea to commit a crime. Whereas an infant of seven or more is considered to be dolix capax which means that although the child is unknown to the crime but can frame intended mens rea to commit the crime.
Essential Ingredients
(I) Act of Child under Seven Years of Age
An act done by a child who is seven years of age is presumed to be doli incapax by law. The liability of an offence is absolute if the offender has intended the consequences of his act. Since, a child lacks both maturity and understanding for the commission of crime, therefore, he/she cannot held liable for the offence committed.
(2) Act of a Child above Seven but Below 12 Years of Age
For the children above seven years and below twelve years if commits a crime, then the incapacity to commit an offence arises only when the child has not attained sufficient maturity or understanding. The test of maturity and understanding is the outcome of the act which he intended to do. Therefore, a child to have the immunity of this Section must prove himself or herself to be below twelve years of age. Also, the onus of non-attainment of maturity and understanding has to specially pleaded and proved. It is not necessary for the prosecution to lead positive evidence to show that an accused person below 12 years of age had arrived at the sufficient maturity of understanding within the meaning of this Section. It would be permissible for the court to arrive at that finding even on a consideration of the circumstances of that particular case.
(3) Maturity of Understanding
A child between seven to twelve years cannot be convicted of any offence unless it is expressly found that he/she has attained sufficient maturity of understanding. The consequences of the act must show that he/she knew what he/she is doing and what will be the result of that.
Juvenile Justice (Care and Protection of Children) Act, 2015
This Act was enacted to consolidate and amend the law relating to children and providing proper care, protection, treatment and disposal of matters and their rehabilitation and other matters concerned with juveniles.
Determination of Age of an Accused Juvenile
The determination of age of a juvenile has always been a controversial issue. Time and again with the help of cases, the judiciary has tried to determine the age of a juvenile.
In the case of Deoki Nandan Dayma v. State of Uttar Pradesh, the court held that for the purpose of determination of age of an accused, the date of birth recorded in school record will be taken into consideration.
In the case of Krishna Bhagwan v. State of Bihar, for considering the relevant age of juvenile, the age on the offence committed will be considered.
In the case of Arnit Das v. State of Bihar, the court overruled its previous decision and held that date of claiming of juvenility should be the date on which the accused is brought before the authority.
The arrest of a Juvenile Offender
If any juvenile is alleged to be guilty of any crime, then such juvenile shall be charged under special juvenile police unit or the designated child welfare police officer. The authorised police officer shall produce the juvenile offender before the Board within 24 hours excluding the journey time.
An alleged juvenile shall in no circumstances be placed in police back up or jail. The authorised police officer has the responsibility of the child and has to maintain him/her.
If the child commits bailable or non-bailable offence, then he/she shall be released on bail with or without surety under the charge of a fit person. In case, if a person is not released on bail, then the Board shall arrange for observation home or place of safety during the pendency period.
The parents of the alleged juvenile shall be informed and direct them to be present before the Board where the child is being produced.
Trial of Delinquent Juveniles
After the initial process of taking into account the accused juvenile offender, following steps shall be taken for the trial of a delinquent juvenile:
An inquiry shall be set up and pass such orders in relation to the child. The inquiry shall be within four months of its first prosecution.
In order to ensure a fair and speedy trial, the court shall look into:
The child has not been subject to ill treatment by the police and other such authorised persons.
The proceedings shall be conducted in a child-friendly atmosphere.
Every juvenile shall be given right of being heard and participate in inquiry.
In case of petty offence, the court shall dispose the case through summary trials.
In case of serious offence, the court shall dispose of the case by following the trial procedure as given in CrPC.
In case of heinous offence, if the child is below 16 years of age, then the case shall be disposed of by following the trial procedure as given in CrPC and if the child is above 16 years, then the court shall follow the procedure as laid down by this Act.
Sentencing of Juveniles
If the orders regarding a child is not found to be not in conflict with the law, then the Board shall pass such orders to that effect.
If the orders regarding a child is found to be in conflict with the law, then the Board shall pass following orders according to the nature of crime.
The child shall be sent back to home after counselling process and advice.
The child shall be directed to participate in group counselling and other activities.
The parents of the child will be asked to pay a fine amount.
The child shall be directed to be released on probation of good conduct and placed under the care and protection of parents or any other person as the Board may deem fit.
The child shall be directed to be sent to a special home for a maximum of three years for reformative purposes including education, skill development, etc.
Insanity or Mental Abnormality
Section 84 of the IPC provides for a defence to a crime committed who are insane or who cannot constitute required mens rea to commit an offence. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless any contrary is proved. But a person of unsound mind or a person suffering from a mental disorder cannot be said to possess this basic norm of human behaviour.
Essential Ingredients of Section 84
The essential elements of Section 84 are as follows:
The accused must, at the time of commission of the act be of unsound mind.
The nature of unsoundness must be of such nature of which he is incapable of knowing the consequences or what is in violation of law.
The nature of act must show that there is absence of motive in commission of an act.
Unsoundness of Mind
‘Unsoundness of mind’ means a state of mind in which an accused is incapable of knowing the nature of his act or that he is incapable of knowing that he is doing wrong or contrary to law. The burden of proof is on the accused to show that he/she was labouring under the defect of not able to frame reasons of his/her act, a disease of the mind or unknown about the act legality or consequences of his act.
The liability of a person will not be reduced because he/she did the act under the influence of some delusion, or in order to avenge any grievances. Mere subjection to insane impulses is not sufficient for a person to acquit himself/herself under this Section.
An insane person committing crime in a lucid interval i.e., when he/she is able to judge his acts normally is responsible for any act or offence.
M’Naghten Rule
In a landmark case of Re M’Naghten where M’Naghten who was an Englishman apparently paranoid by Schizophrenia shot and killed the Secretary of Prime Minister of Britain. To the surprise, M’Naghten was acquitted from the offence because it was proved that he was insane at the time of commission of this act. Since this case was the first case where insanity as an exception was observed by House of Lords.
It was held that every man is presumed to be sane until the contrary is proved and in order to establish a defense on the ground of insanity, one has to prove that the accused was laboring under the diseased state of mind and he did not know about the nature and quality of the act what he was doing.
The applicability of M’Naghten Rule is very apparent in India because Section 84 clearly brings out the essential ingredients as laid down in the judgment. Assam High Court in the case of State v. Kartik Chandra held that M’Naghten Rule is the basis of Section 84 and is embodied in it.
Medical insanity and legal insanity
There is a difference between medical and legal insanity. A Court is always concerned with the legal insanity and not with the medical insanity. Medical insanity is that condition of any person who is suffering from any medical illness or other mental diseases whereas legal insanity is that condition of any person who is having loss of reasoning power at the time of committing crime.
All medical insanity cannot be considered to be legal insanity and all medical insanity cannot claim protection under this Section. The court is only concerned with the “state of mind” of the accused at the time of conduct of the act and the antecedent and subsequent conduct of the man is relevant only to show what state of mind existed at the commission of the crime.
Moreover, to clearly point out the importance of distinction of medical insanity with legal insanity, the court in a case where the accused committed murder and had full understanding of the conduct of his act. Here, the court said that even though there is proven medical insanity yet Section 84 cannot be invoked when legal insanity is not established by the accused. This was held in the case of Govind Raj v. State.
Kinds of Insanity
There are five general types of insanity. They are:
Melancholia- it is a condition of medical insanity where a person is struck with depression and it leads to withdrawal from society. He is often irritated and all things are detestable to him. Sometimes he imagines a part of his body to be made of glass or some other stuff like this.
Homicidal Mania- it is a condition in which there are disorder and emotional abnormalities. It is characterised by meaningless giggles and often a self-satisfied smile. Behaviour is often silly, mischievous and eccentric.
Monomania- it is a condition in which a single delusion is held for a longer period of time. In this form of insanity, a person becomes obsessed with the possession of one fixed idea or a thing.
Dementia- it is a condition in which there is deterioration in memory, thinking, behaviour and ability to perform everyday activities.
Idiocy- a condition where a person does an extremely stupid behaviour.
Hallucination or Delusion
Delusions are false beliefs. An act of a person is to be judged on the basis of the nature of the delusion. Existence of delusions which indicate a defect of sanity will protect a person from criminal liability. If a person is struck with insane delusion and he/she commits a crime knowing that he/she was acting contrary to law, but did the act under the influence of insane delusion of taking revenge of any grievances or injuries, he/she is punishable according to the nature of the crime committed.
Hallucination is the condition of insanity in which a person experiences apparent perception of something not actually present. The High Courts in India have time and again held that if a person is sane but is suffering from hallucinations, then the protection cannot be claimed under this Section.
Somnambulism
Somnambulism is the condition when a person walks while sleeping. Causing any harm while walking in a sleep is no offence since the act done by the person is involuntary. The person shall not be liable for any harmful act done by him/her because he/she is not legally responsible for the actus reus and hence realm of criminality cannot be established in the case of somnambulism.
Moreover, the conduct of a man for offence committed immediately after waking up from sleep depends upon individual facts of each case.
In the case where a man suddenly woke up at midnight and saw a phantom advancing towards him. He asked twice, “who is that?” after receiving no answer, he attacked the spectre with the hatchet and it was found that he had murdered his wife. He was found “not guilty” on the ground that he was not conscious of his actions.
Irresistible Impulse, Mental Agitation, Annoyance and Fury
Crime is generally said to be done with free-will except in cases of abetment or coercion. However, there are cases where a person can claim protection for irresistible internal compulsion affecting the emotions and the will. The act of committing crime is spontaneous, sudden and uncontrollable under the law of insanity. Even in some cases, people may know what is right or wrong yet he is incapable of restraining himself from doing it because of his freedom of will is overpowered by mental disease.
This doctrine of irresistible impulse is not included in the Indian Law. a person has to prove prior unsoundness of mind along with the irresistible impulse.
In the case of Brij Kishore Pandey v. State of UP, the Supreme Court held that plea of irresistible impulse shall be considered as a mitigating factor in aggravating the act to be done. The mere fact that murder was committed on sudden impulse will not be sufficient to claim protection under Section 84 of IPC.
Insanity as a Result of Smoking Ganja or Heavy Intoxication
A regular ganja smoker cannot claim protection under this section for the unreasonable state of mind at the time of commission of an offence under the influence of ganja. In a case of Sakharam Valad Ramji case, a regular ganja smoker killed his wife and children when she refused to go to a village where he proposed to go. The court held that accused’s habit of smoking ganja had induced in him a diseased state of mind and therefore he was not able to know the consequences of his act and hence he cannot be relieved under this exception of crime committed.
In case of heavy intoxication, the criminality of a person’s act is determined by the degree of madness which has rendered him/her incapable of distinguishing right from wrong. If there is sufficient amount of intoxication which leads to lack of knowledge or wrongfulness which he had previously possessed, then he/she shall be acquitted.
Lack of Motive or a Trifling Matter
The motive and intention have a thin difference between them. Motive is the reason which forms the intention. The mere presence of a good motive can never be an excuse for the commission of crime. When an act is done with a motive, it cannot amount to insanity but when an act is done in insanity, it cannot amount to the absence of motive. This means that even if there was no motive, yet the act done with a reasonable state of mind cannot be said to be protected under this Section because absence of motive cannot amount to insane act. However, the close relationship between the victim and the accused may provide a clue to the Court that in absence of motive, the act could be committed by an insane person only.
In the case of S.W. Mohammed, the court held that the mere fact that no motive was present at the time of committing murder of his wife and children and his presence at the crime scene did not prove that he was insane or he did not have required mens rea. Whereas in other cases, where there was a similar situation but the person was insane for some months prior to the incident, the court granted the benefit of this Section under insanity.
Therefore, a motive itself is never sufficient to determine the culpability of the accused. Motive, deliberation and preparation and conduct before, at the time and after commission of offence are circumstances relevant for drawing inference of insanity.
A trifling matter will not lead a case to conclusion of insanity. One has to establish other good reasons and grounds to prove his/her insanity.
Excessive or Unusual Violence
The commission and nature of crime cannot determine the insanity of the person and the closure of the case. Howsoever the act is in excess, brutal or ferocious, yet the crime committed cannot be excused by its veracity.
Presumption of Sanity
Law presumes every person to be sane until and unless the contrary is proved. To prove the particular person to be insane, one has to prove the following:
He must show that he was suffering from a disease of the mind when he committed an illegal act.
He must show that he was unable to frame reason or was absent-minded which rendered him insane.
Due to unsound mind, the act affected the legal responsibility of knowing the nature and consequences of his wrongful act.
In a case of Arumugham v. State of Tamil Nadu, an accused in a sort of provocation caught hold of seven years old child and dashed his head thrice in quick succession resulting in the death of the boy. Immediately after the occurrence the accused ran away. Here, the accused pleaded for insanity as a defence. But the court held that his running away from the crime scene shows that he had no legal sanity and hence his plea of insanity was rejected and was punished for the crime committed.
Procedure for Trial of Persons of Unsound Mind
The procedure for trial of lunatic person is provided under chapter XXV of Criminal Procedure Code. The procedure must be followed in the following manner:
A magistrate holding an inquiry shall inquire into the fact of unsoundness of a person and examine it by the help of a civil surgeon or other medical officers as directed by the State Government and shall reduce the examination in writing.
A case may be bailable or not, yet the Magistrate shall release the lunatic or unsound person on the security and provide proper care to such persons to prohibit him/her from doing any injury and for his attendance in the Court as and when required.
If the trial is postponed, then the Magistrate or the Court may resume the trial and require the accused to appear even after the person concerned has ceased to be of unsound mind.
If the accused is capable of enough of making his defence, then he/she shall be allowed otherwise he/she shall be dealt in a different manner.
After taking all the facts and circumstances into consideration, the magistrate or the court shall proceed with the case and pass the orders.
Intoxication
Intoxication is a state of mind in which the person is incapable of knowing the nature of act or he was doing an act which was either wrong or contrary to law. Section 85 and 86 provides immunity to an intoxicated person only if the intoxicating thing was given to him without his knowledge or against his will. Voluntary drunkenness is no excuse for the commission of the crime. This was held in the case of Chet Ram v. State.
Moreover, in the year 1956, the principle was laid for immuning from criminal act due to drunkenness in the case of Basdev v. State of Pepsu as:
If the intoxication is self-induced then the accused shall be treated as if he had been aware of the risk taken by doing a criminal act.
Intoxication can be induced by drink or drugs.
The recklessness of an act is an alternative to intent or knowledge.
Involuntary Intoxication
Involuntary intoxication is a state when a person is administered with intoxicating substances involuntarily i.e. when he was unknown of the fact. Involuntary intoxication is immuned under Section 85 if the accused is able to prove with the satisfaction of the Court that the crime committed was not intended by him and he had no knowledge of the cause of the inebriated state of mind.
Incapable of Knowing the Nature of the Act
State of intoxication determines whether the accused is capable or not of knowing the nature of the act. There are varying degrees of intoxication like in a case if the accused had made itself so inebriated that he is incapable of knowing the nature of his act, then that person will be liable in the same manner as the person who was not intoxicated. Whereas in other cases where the accused is inebriated but not to that level where he cannot know about the nature of his act, then he shall be liable in the same manner as the normal person shall be punished.
It is also presumed that every man has the requisite intent to know the results of his consequences but in cases where there was the obscure mind of the accused person and he was not able to form the basic intent to commit a crime, then he cannot be liable for his acts.
‘Without His Knowledge’ or ‘Against His Will
The expression ‘without his knowledge’ or ‘against his will’ means ignorance of the act or thing being administered to him. The administration of the intoxicating thing is done either by force, fraud or ignorance in case of involuntary intoxication. In such cases, the criminal act will be judged on the mental condition at the time of the commission of an act.
Voluntary Intoxication
Generally, voluntary intoxication is not considered an exception to criminal liability. However, there are two exceptions to be taken into consideration. They are:
A case where Mens rea is an essential element of the offence charged and the evidence shows that the state of intoxication of the accused is such that he is incapable of forming the specific intent to commit the crime.
A case where the accused in habitual behaviour been addicted to intoxication that his diseased state of mind is incapable of knowing the nature of the act or the illegality of his act.
Voluntary Intoxication: Presumption of Knowledge
Section 86 of the Act provide for the presumption of knowledge while committing the act. If an offence is committed by one who voluntarily made himself intoxicated, then the Court shall treat him as if he had the necessary knowledge required to commit the crime.
An accused because of his drunken condition gave way to violent or rash passion of his life which led to commission of crime. Here, it can be reasonably inferred that the accused person intended the natural consequences of his act.
Voluntary Intoxication and Intention
The voluntary intoxication of a person does not necessarily have the intention of committing the crime but it is generally presumed that he has a basic knowledge of the consequences of his act. The court cannot presume guilty intention in judging the nature of offence committed by the drunken person. But the guilty intention is inferred from the proved facts and circumstances which may vary from one case to another.
Since there are varying degrees of intoxication, therefore, if the accused knew the natural consequences of his act, then it is necessarily followed that guilty intention may also be present while committing the offence.
Difference: Section 85 and Section 86
Section 86 of the Act is an exception to Section 85 of the Act. Section 85 covers the entire offences relating to intoxication whereas Section 86 take care of offences requiring specific intent and knowledge. Section 86 lays down that if the intoxication is involuntary then there was neither knowledge nor intention of committing the crime. But if the intoxication is voluntary, then only knowledge will be taken into account and intention will no longer be considered.
Intoxication and Insanity
In a landmark case of Basdev v. State of Pepsu, the difference between intoxication and insanity was highlighted. According to the court, there are two conditions:
Defence of insanity caused by excessive drunkenness.
Defence of drunkenness causing incapacity of mind to form an intention.
If the defence of insanity is taken due to excessive drunkenness, then the accused cannot be relieved as it furnishes that insanity was induced by external agent and hence is liable.
But if the defence of drunkenness is taken, then the facts and circumstances of the case is taken into consideration to determine whether or not there was intention. However, in cases where it becomes difficult to establish such conditions and the passion of the accused has led to drunkenness and commission of crime, then it is assumed that the man knew the natural consequences of his act.
Burden of Proof
Burden of proof to establish the essential ingredients to claim protection under General Exception is on the accused. The accused has to prove that he was incapable of framing the specific intention to commit crime due to intoxication.
In the case of Dasa Kandha v. State of Orissa, it was laid down that mere proof of drinking some amount of liquor will not prove his acquittal. Instead one has to rebut the presumption of an accused knowing the natural consequences of the crime and proving the degree of his intoxication which was insufficient to know the natural consequences of his act.
Trivial Acts
Offence by Trivial acts are those offences which causes slight harm which would not be complained by an ordinary person. Section 95 of the General Exception provides immunity to the person who commits trivial offences. A trivial act is distinguished depending upon the nature of the injury, the knowledge, intention and other related circumstances. Therefore, if the allegation of the complainant is of a petty or trivial nature, then no criminal proceeding should be taken.
Object and Applicability of the Section
The scope of this Section is based on the Latin maxim ‘de minimis non curat lex’ which means that the law takes no account of trifles. According to Supreme Court, Section 95 is intended to prevent penalisation of negligible wrongs or of offences of trivial nature. However, an offence mentioned in any statute does not fall under the scrutiny of trivial acts. So, if the adulteration in food is negligible, yet the accused will be punished according to penal offences provided in Food Adulteration Act.
Acts regarded as trivial
Acts such as theft of cheque of no value, harm to the reputation of a person when he was travelling with a wrong ticket, etc are considered to be trivial. Even the case of Public Prosecutor v. K. Satyanarayana established that the conduct of a lawyer in using filthy language in the course of cross-examination are treated as trivial.
Meaning of Harm
The Supreme Court in the case of Bindeshwari Prasad Sinha v. Kali Singh cleared the meaning of harm. According to the Court, the harm in Section 95 includes financial loss, loss of reputation, mental worry and apprehension of injury which cannot be the reason of the complainant to punish the accused.
Offences under Public Welfare Enactments
According to 47th Report of Law Commission of India which deals with the socio-economic offences and punishments provides that Section 95 would not act in cases of socio-economic offence like an offence under the Drug (Price Control Order), 1970 or Essential Commodities Act, 1955, etc.
Conclusion
This article brings out the basic understanding of general exceptions of the offence committed in Indian Penal Code. Since IPC is a substantive law which determines the criminal liability of a person committing the act. However, the framers of the Act knew that there may be cases where the accused cannot be punished.
References
The Indian Penal Code, 33rd edition, by Ratanlal and Dhirajlal.
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After all, it is hard for law students to either appreciate the value that our courses add to their careers or to even get an immediate RoI from the money and effort they invest in our courses. Only thing that makes a difference to them is getting a job, which they can achieve even by doing a single course from us. We can’t expect then to spend over 1 lakh for buying supplementary courses.
However, we can expect a lawyer who earns handsomely from his knowledge and skills to invest in furthering their knowledge and skills.
For lawyers, the benefit of doing a course is a lot more immediate and obvious, and they do not shy away from paying a premium price because they can recover the same soon enough. It is rare that a lawyer would do only one course from us. If they finish one course, they often enroll for another! Many of them pay us over 1 lakh rupees to enroll in our Master Access program because they want all our courses, at once! Or they enroll in programs like Litigation Library and Corporate Law Library.
When we launched our diploma courses in 2017, the initial price for an 1 year diploma course was either INR 15,000 or INR 20,000. Currently, we charge INR 30,000 and the number of students has steadily increased.
This is because we have continuously improved the value offered through our courses. And we have not shied away from increasing the price, which the market embraced happily, because it is now getting way much more bang on the buck! We do not need to worry about our competitors selling courses for 5,000, because we are not even catering to the same audience! People who buy our courses for a premium know why they need to buy ours, and why they are paying a premium.
We increased the price of Master Access from INR 1 lakh to INR 1,20,000. This has not reduced the number of inquiries we are getting for it! People are joining the waiting list here as we are not taking new enrollments in Master Access right now.
We increased the price of Corporate Law Library from INR 70,000 to INR 90,000 a couple of months back.
And we are going to raise the price of the Litigation Library next, from 25th December.
We are also considering an increase in the price of all our courses from January 2020, as we usher in the new year. If we do not do it in January, we will definitely do so from April, i.e. the new financial year.
When you provide more value than the price you are asking for and solve real problems for your clients, it is no problem if you increase your fees. You can do so because you are moving up the value chain.
Now we not only work for lawyers but even for large companies with legal training needs. In-house legal teams are buying multiple user access to Master Access.
We have begun to explore how we can help law firms with fast-tracking their training for newbie lawyers, which saves them a lot of money and grief. That is our next focus area. We are also looking to work with law colleges and universities.
And we get to charge a portion of the value we create. You can do the same.
How do you plan to move up the value chain? What is your strategy?
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This article is written by Mehar Verma, a 3rd-year law student from Jindal Global Law school. In this article, the author talks when and how an appeal can be filed under CrPC.
Introduction
An appeal is a tool given to the parties of a case to ensure justice is served and all the parties are satisfied by the judgment. After hearing all the parties in a case, a competent court pronounces the judgment and if the parties are not satisfied with the judgment they have a right to appeal to a higher court. Such an appeal would give the aggravated party another opportunity to present their case to a higher authority or the Appellate Court who would judge the case with a fresh perspective and if there are any wrongdoings, they would be corrected. When the verdict is unreasonable or not supported by evidence, or when there is miscarriage of justice on any grounds, then such a verdict can be appealed.
Object and scope of appeals
Even though Criminal Procedure Code (CrPC), does not define appeal, legally it is to be understood as judicial review done by a higher court of a decree, order or judgment passed by a subordinate court. The Cambridge dictionary defines appeal as “a request made to a court of law or to someone in authority to change a previous decision.”
As per the hierarchy, a judgment passed by the trial court is appealed in the High Court which may further be appealed in the Supreme Court of India. Being the highest court of appeal, orders passed by the Supreme Court are final except in certain cases. The extensive discretionary powers enjoyed by the Supreme Court are governed by the Constitution of India, CrPC and the Supreme Court Act, 1970.
As an appeal is not a vested right, it cannot lie from all judgments, but only when there is a statutory provision under CrPC or any other law in force at that time. Even the first appeal is subject to statutory limitations and this principle is primarily derived from the three legal maxims. Firstly, “nemo debet bis vexari pro una et eadem causa”, i.e a defendant should not be vexed for the same case again and again, secondly, “interest reipublicae ut sit finis litium” which means it is in the interest of the state if there is an end to the litigation and thirdly, “res judicata pro veritate accipitur” that implies that a judicial decision must be accepted as correct. However, under special circumstances, these include the judgment of acquittal, conviction for a lesser offence or inadequate compensation, the victim has the right to appeal against any order or decree passed by the subordinate court. In Satya Pal Singh v State of Maharashtra, the judgment of acquittal of the accused was questioned and thus the victim was allowed to appeal under Section 372.
No appeal in certain cases
In order to ensure that cases that do not require further judicial review are not appealed again and again the statute explicitly provides that for such cases no appeal can lie. These provisions are laid down in Section 375 and Section 376 of CrPC. The object of not allowing appeal under these situations is to bring an end to the litigation, and not increase the pile of cases in front of the superior courts when it is not required.
In case accused pleads guilty
Section 375 of the code provides that if the conviction for any offense is made after the accused had pleaded guilty of the crime he or she was charged with then no appeal lies against the order of conviction. After the accused has pleaded guilty, the sentence of conviction may be passed by the Magistrate, Session Court or High Court and Section 375 of CrPC would apply as long as the condition of pleading guilty is satisfied.
In Barendra Ghosh v Emperor, the court held that the right to appeal is taken away under Section 375 only when the accused pleads guilty voluntarily and with full knowledge of the consequences of his actions. The accused must also be willing to accept the punishment prescribed by the court.
Section 375(b) provides an exception to this rule and states that if the legality of the sentence is questioned then an appeal may be allowed in this case as well. As per Section 29 of the code, the Magistrate is not competent to pass a punishment of imprisonment exceeding 3 years whereas Chief Judicial Magistrate cannot pass a sentence exceeding 7 years. If and when these authorities exceed their prescribed powers while giving the judgments, it would amount to illegality and is covered under the exception of Section 375. Furthermore, if after the sentence is pronounced, the accused is of the opinion that the punishment is unfair or too harsh, he may appeal to the extent of the sentence.
In the case of petty cases
Petty or small cases are not appealable, according to Section 376 of the code. However, the interpretation of petty is not open as the code provides what is to be considered petty under clause ‘a’ to ‘d’ of Section 376:
When an appeal was made to the High Court and such court after due consideration prescribes imprisonment not exceeding 6 months or a fine of INR 1,000 or both;
When the Metropolitan Magistrate or Court of Session after due process pass a sentence for imprisonment for a period not exceeding three months or fine not more than INR 200 or both;
When a case is exclusively triable by a Judicial Magistrate of First Class and the court passes a decree of fine not exceeding INR 100;
When the case is triable by a Magistrate under Section 260 of the code and after the trial, the Magistrate prescribes a fine not exceeding of INR 200 and an order for payment of security;
When the court passes multiple orders, the cumulative of all the orders should not exceed the amount stated above, to be considered as a petty crime. Further, an appeal cannot be barred under Section 376 if the punishment is combined with other punishments or offences, not covered by the said section.
In case of no law for appeal
As already discussed appeal is neither an inborn right nor a vested right, but one which is given by the statue itself. If there is no provision allowing an appeal for a case, then such an appeal would not be allowed.
Appeals from convictions
Defendants convicted of an offence are not always satisfied with the judgment and may think they have been wrongfully convicted. In such circumstances, they may ask a higher court to review the judgment or order passed under Section 374 of the code. The typical hierarchy of the state consists of:
The Trial Court or Court of Session;
The High Court;
The Supreme Court.
Appeal to the Court of Session
As per Section 374(3), when an order or decree for conviction is made in a trial conducted by Metropolitan Magistrate or Assistant Session Judge or Magistrate of the first class or Magistrate of the second class, then the convicted may appeal to the Court of Session.
If a sentence for conviction is made under Section 325 of the code, i.e after referring to the Chief Judicial Magistrate, then such conviction can also be appealed to the Court of Session.
Lastly, when a convict is released on probation of good conduct or after admonition under Section 360 of the code, the order may be appealed to the Court of Session.
Appeal to the High Court
According to Section 374(2) of the Code, any person convicted may appeal to the High Court against a judgment passed by the Sessions Judge or an Additional Sessions Judge or on a trial held by any other court wherein a sentence of imprisonment for 7 years or less was passed. For instance, when a judgment is passed by the Sessions Judge, imprisoning the defendant for 5 years, then such a defendant can appeal to the High Court if he thinks the judgment was unfair.
Appeal to the Supreme Court
Section 374(1) of the Code, allows any person convicted by the High Court in its extraordinary original criminal jurisdiction to appeal for the same in the Supreme Court of India.
According to Section 379 of the Code, where the High Court on appeal, reverse an order of acquittal of the defendant and convicted him with imprisonment for not less than 10 years, life imprisonment or death penalty, the convict may appeal to the Supreme Court.
As per Article 132(2) of the Constitution of India, if the High Court is satisfied that there is a substantial question of law which is in question, then an appeal can be made to the Supreme Court from any judgment, decree or final order from any High Court within the territory of India.
Appeal by the government against sentence
Under Section 377 of the Code, the State Government may direct the public prosecutor to present an appeal against the sentence passed by any court except the High Court on the grounds of inadequacy. The appeal may be made to:
The Court of Session, if the sentence in question was passed by the Magistrate and
The High Court, if the sentence is passed by any other court.
If the offence is investigated by any special agency empowered to do such an investigation under any Central Act, such as the Delhi Special Police Establishment, which comes under the Delhi Special Police Establishment Act, 1946, the Central Government may also direct the public prosecutor to present an appeal on the grounds of inadequacy to:
The Court of Session, if the sentence was passed by the Magistrate and
The High Court, if the sentence was passed by any other court.
When an appeal is made under Section 377 of the Code, the High Court may enhance the sentence only after giving a reasonable opportunity to the accused to show his cause. The accused has the opportunity to either plea for his acquittal or the reduction of his sentence.
An appeal against the order of acquittal
Section 378 of the Code deals with the appeal against the order of acquittal. According to Section 378(1)(a), the District Magistrate with the leave of the High Court can direct the Public Prosecutor to present an appeal to the Court of Session when an order of acquittal is given by a Magistrate in respect of a cognizable and non-bailable offence. Section 378(1)(b) allows the State Government with the permission of the High Court, to direct the Public Prosecutor to present an appeal to the High Court against an order of acquittal passed by any court other than a High Court. However, the order in question should not be passed under Section 378(1)(a).
According to Section 378(2), if an order for acquittal is passed for any offence which is investigated by any special agency empowered to do such an investigation under any Central Act, such as the Delhi Special Police Establishment, which comes under the Delhi Special Police Establishment Act, 1946, the Central Government may direct the Public Prosecutor to present an appeal to:
The Court of Session, if the sentence was passed by the Magistrate in respect to nan-bailable, cognizance offense, and
The High Court, if the sentence was passed by any other court.
As per Section 378(4) of the Code, if an order of acquittal is made under any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. Such special leave shall be entertained only if it is presented within six months from the date of order of acquittal in case of public servants and sixty days in every other case.
As appeal in case of acquittal is considered as an extraordinary remedy, the High Court while deciding the appeal must be extremely diligent and give consideration to very substantial and compelling reasons. Substantive and compelling reasons exist when:
The trial court failed to ascertain the facts in a correct manner;
Trial court’s interpretation of law was incorrect;
Trial court’s judgment would result in grave miscarriage of justice;
Trial court’s judgment and reasoning were unreasonable;
Trial court ignored some material facts for evidence while ascertaining the judgment;
The above list is illustrative and not exhaustive.
Petition of appeal and its presentation
According to Section 382 of the Code, all appeals are to be presented by the appellant or his pleader in the form of a written petition and every such petition shall be accompanied by a copy of judgment or order appealed against.
Hearing of appeals in Court of Sessions
According to Section 381, an appeal made to the Court of Sessions is heard by Sessions Judge or by an Additional Sessions Judge when a general order is made to such judges by the Session Judge or High Court through special or general order. When an appeal is made against the conviction by a Magistrate of the second class, then such an appeal may be held and disposed of by an Assistant Sessions Judge or Chief Judicial Magistrate.
Summary disposal of appeals
Section 384 of the code states that if after careful examination of the petition before the Court, such Court is of the opinion that there is no sufficient ground for interfering, it may dismiss the appeal summarily.
However, no appeal shall be dismissed:
If the appellant was not given a reasonable opportunity to be heard;
If the appellant is in jail at the time being and was not given an opportunity to be heard. Provided that the Appellant Court that the petition to appeal files is frivolous or the court of the opinion that the accused cant be presented before the court without causing inconvenience;
If the appellant is in jail and the period for applying for appeal has not expired yet.
Before dismissing an appeal the Court may call for the record of the case and record the reasons for ordering such dismiss.
Procedure for hearing appeals not summarily dismissed
If an appeal is not dismissed, under Section 385 of the code, it shall give notice of time and place where such appeal is to be heard:
To the appellant, his pleader or any one of them;
To any officer that may be appointed by the State Government on his behalf;
To the complainant, if an appeal from judgment were in the case was instituted by the way of a complaint.
According to Section 385(2), if the appeal is not only to the extent or the legality of the sentence, then the record of the case must be sent to the Appellate Court and both the parties are heard.
According to Section 385(3), if the ground for appeal is regarding the alleged severity of the sentence, the appellant shall not be heard on any other ground, except on the leave of the court.
In State of Madhya Pradesh v. Parasaram, the case was disposed of under Section 385 of CrPC, and the Supreme Court held that since the judgment given by the High Court was not in accordance with the law, it is to be sent back to the High Court for a fresh consideration of the appeal.
Section 386 of the Code lays down the power of the Appellate Court. This section specifies and provides that after hearing the parties may dismiss the appeal, allow the appeal, or pass any other necessary order which serves justice.
Clause (a) of the above Section, provides that if there is an appeal from an order of acquittal, the Appellate Court may:
Reverse such order;
Direct further inquiry;
Conduct re-trial;
Find the accused guilty and pass a sentence accordingly.
Clause (b) provides if there is an appeal from an order of conviction, the court may:
Reverse the findings and acquit or discharge the accused;
Order retrial by a subordinate competent court;
Alter the extent or the nature of the sentence given by the subordinate Court.
Clause (c) provides if there is an appeal for enhancement of sentence, the court may:
Reverse the findings and acquit or discharge the accused;
Order retrial by a subordinate competent court;
Alter the extent or the nature of the sentence given by the subordinate Court.
In an appeal from any other order, the court can alter or reverse the decision or judgment given by the subordinate court.
No order enhancing the punishment of the accused should be passed unless the accused was given a fair and reasonable opportunity to be heard.
Power of Appellate Court to obtain further evidence
Section 391 of the Code gives the Appellate Court the power to obtain further evidence or direct it to be taken. The court after recording the reasons for demanding necessary reasons can either take such evidence itself or can direct the Magistrate and when the Court of Appellate is High Court, then such direction can be given to Court of Session or a Magistrate.
While the additional evidence is procured the accused has the right to be present and the evidence when taken by the Court of Session or the Magistrate, he shall certify such evidence to the appellate Court.
Procedure where Judges of Court of appeal are equally divided
Section 392 of CrPC provides that when a Bench of Judges of the High Court heard an appeal and thereafter they are divided in opinion, then the appeal with their opinion is to be laid before an independent Judge of that Court, who after hearing the case as he thinks fit, shall deliver his opinion and such opinion would be final.
Order of the High Court on appeal to be certified to lower court
According to Section 388 of the Code, whenever an appeal is made to the High Court, the High Court certify its judgment to the court whose orders were appealed. If such a Court is that of a judicial magistrate, the High Court’s judgment or order shall be sent through the Chief Judicial Magistrate and if the court is that of an Executive Magistrate, the High Court’s judgment or order shall be sent through the District Magistrate.
Rules regarding the judgment of subordinate Appellate Court
Section 387 of CrPC deals with the judgment of subordinate Appellate Court and thereby provides that similar rule as to the judgment of a Criminal Court of original jurisdiction shall apply as far as it is practicable. Thus the judgment:
Shall be pronounced in an open Court immediately after the completion of the trial or some subsequent time of which notice is to be given to all the parties;
Shall contain all points and reasons for the decision taken and shall be recorded in the language of the Court;
Shall specify the offence and the relevant sections of IPC or any other law;
If acquitted, shall specify the offence of which the accused is acquitted.
The finality of judgments and orders on appeal
According to Section 393 of the Code, the decision of the Appellate Court is to be the final one on the matter presented before the court except in cases when an appeal is made by the State Government against conviction under Section 377, when an appeal is made in case of acquittal under Section 378, in the case of reference and revision made under chapter 30 of the code, or when an appeal is made under Section 384(4) of CrPC.
Abatement of appeals
The provision regarding abatement of appeals is governed under Section 394 of the code. Any appeal by the State Government against conviction or any appeal in case of acquittal shall finally abate on the death of the accused. Every other appeal made under this code shall abate on the death of the appellant. In case the appeal was against conviction and sentence of death or imprisonment and the appellant died during the pendency of such appeal, the appeal can be continued if an application is made by any of the close relatives of the deceased within thirty days of the death of the accused.
Legal aid in appeal cases
When due to the financial position of one, the party is unable to afford legal representation, the same is provided free of cost to the party in the name of legal aid. Legal aid schemes were started to ensure that no one is denied the right to be heard and to a fair trial due to economic, political, social and other disabilities. Further, free and competent legal services to the weaker sections of the society to ensure equal access to justice for all citizens of India. It is on these same principles that Section 304 of CrPC was laid down.
The said section provides that where the accused does not have any legal representative or where it appears to the court that the accused does not have enough means to appoint a legal representative, the court shall assign a pleader for his defense at the expense of the State.
The High Court with the approval of the State Government makes rules with respect to the legal representative provided by the way of legal aid to any weaker section of the society. Rules regarding the following provisions are made:
The mode of selecting pleaders;
The facilities to be allowed to such a pleader by the courts;
The salary or remuneration to be paid to such pleaders.
The decisions regarding the pleader may be informed to the Courts in the State by the State Government through a notification containing all the required details.
Conclusion
In order to ensure that any factual or legal error made in judgment is corrected, the right to appeal is to be rightfully maintained. However, appeals under criminal law are not a vested right and, appeals against judgments, decrees or orders are maintainable only when such is allowed under the Criminal Procedure Code or any other law in force. In general, the right to appeal is at the discretionary of the judiciary and in certain cases like petty cases and when the accused pleads guilty, such right is altogether denied. The appeals are always filed in form of petition and in accordance with the hierarchy, i.e first the Court of Session, then the High Court and finally the Supreme Court.
The Appellate Court on receiving an appeal can summarily dispose of such an appeal, or after hearing the parties, reverse the order passed by the subordinate court, order additional evidence, a retrial or an alteration in the sentence. Just like the judgment passed by the Court of original jurisdiction, a judgment passed by the Appellate Court should also have the reasons for the decision and should be pronounced in an open court.
To ensure that all citizens including the economically, politically and socially deprived citizens are also given an equal opportunity to justice, CrPC provided a provision dealing with legal aid in appeal cases.
References
Code of Criminal Procedure, 1973
Satya Pal Singh v State of Maharashtra
Barendra Ghosh v Emperor
State of Madhya Pradesh v. Parasaram
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 has been written by Avni Sharma, a second year law intern from National Law University, Odisha. This article deals with the relation between Criminal Conspiracy and Joint Liability. Do people even get liable for just thinking and planning of something criminal? Yes, they do. Indian Penal Code, 1862 in Section 120A, specifies Criminal Conspiracy as a punishable offence.
Introduction
Criminal conspiracy and joint liability are terms that go hand in hand. Joint liability is the liability that is shared by people who conspired to an unlawful act. All the people who have agreed on doing an unlawful act, with criminal intent, will be jointly liable for the conspiracy.
Criminal Conspiracy
Criminal Conspiracy can be defined as an act when two or more persons agree to do or cause to do:
Any illegal act.
Any act which is done through illegal means.
It is important to note that the objective to do such a crime is very important in this act. In the case of Mulcahy v. Regina, it was said that the criminal intent of doing an act is very indispensable from constituting an act of conspiracy. In Rex v Jones, it was first held that “Criminal Conspiracy ought to charge a conspiracy, either to do an unlawful act or a lawful act by unlawful means”. The idea of intent extends in various cases in national and international law. Many have argued on the constitution of the ‘unlawful’ act. The real meaning to that is still getting scrutinised by the courts, however, we can still count that as anything which is against the law.
Brief History of the Law of Conspiracy in India
Criminal conspiracy was considered a civil offence, initially. The idea behind this was two-fold:
Abetment in any offence; or
Conspiracy with criminal intent.
But later on, it began to be considered as a criminal offence. In 1868, the scope was widened by adding it to Section 121A of the Indian Penal Code, 1862. The history of criminal conspiracy has evolved through a series of cases.
Ingredients of Section 120A, Indian Penal Code 1860
In Rajiv Kumar v State of UP, the court took out some basic necessary ingredients in order to constitute conspiracy,
There must be two or more persons;
There must be an illegal act or an act in an illegal way;
There must be a meeting of minds;
There must be an agreement regarding the same thing.
The ingredients must be present in any act in order to constitute it as a crime of criminal conspiracy. In Pratapbhai Hamirbhai Solanki v. State of Gujarat and another, the apex court held that the most important ingredient is the intent to cause an illegal act.
Nature and Scope of the Law of Conspiracy in Section 120A, Indian Penal Code 1860
The nature and scope of Criminal Conspiracy are limited to conspiring to do an illegal act by two or more persons. No one person can constitute the offence. It requires two or more persons to agree to do some act. The underlying purpose of the Sections was to prevent any illegal act from happening before the constitution of a criminal act. The nature of the sections is preventive. It helps in the prevention of any criminal activity. The next step after this stage is the performance of the act. So, the scope of the law is only limited to agreement and meeting of minds with regards to a criminal act.
(b) a plan or scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and
(d) in the jurisdiction where the statute required an overt act.
Proof of Conspiracy
The crime is inherently psychological in nature. The proof of such an act is also difficult. It can be ascertained by the fact that some act was kept a secret. However, this does not constitute an essential element of the conspiracy. It can be done through:
Direct Evidence or;
Circumstantial Evidence
It was held in the case ofQuinn v. Leathern, that inference is generally deduced from the acts of the parties in pursuance of the predetermined acts. In such a crime, circumstantial evidence and direct evidence turn out to be the same because there has not been an act, yet. The act is only being conspired.
The Doctrine of Agency also comes into play in this scenario. The fact that there was an agency in the conspiracy may prove that there was involvement of this person in the act. This was held in Bhagwan Swaroop Lai Bishan Lai v. State of Maharashtra.
Nature and Scope of Section 120B
Section 120B specifies the punishment given to the persons convicted for the crime of conspiracy. They may be punished with death or rigorous imprisonment. The nature of this section is punitive. The scope of this section is limited to providing punishments after the accused has been convicted.
Effect of Acquittal of Accused
In the case of Topan Das v State of Bombay, the court held that the person must not be alone in conspiring for the offence. The accused was acquitted from the case because he was the sole person who had conspired for the crime. The acquittal of this case meant that the person was liable for all the other offences that had been committed and proved.
Framing of Charge
Charges are framed on the basis of the nature and magnitude of the crime. The accused is often charged with a substantive offence and along with that, is also charged for criminal conspiracy. In State of Maharashtra & Ors. v. Som Nath Thapa & Ors., it was said that the charges will be framed only if the person was aware of the co-conspirators and their motives. Since there is no way that the crime can be proved beyond a reasonable doubt, it is necessary to understand that there is a deemed presumption of the offence if there are overt actions to prove it.
Difference between Section 120B and Section 107, Indian Penal Code 1860
Section 107 of the Indian Penal Code, 1860 states the offence of Abetment. The section states that:
If a person is aiding in an illegal act;
Instigates a person to do an illegal act;
Engages in a conspiracy and an act is performed in pursuance of the conspiracy.
Section 120B is suggestive of the punishment of conspiracy. The basic difference lies in the fact that in one case, there just needs to be a meeting of minds in order to do an illegal act, abetment requires an act in pursuance of the agreement.
Another point is that abetment involves aiding in a crime or a conspiracy, whereas criminal conspiracy just requires a meeting of minds.
Proposals for Reform
National commission of Criminal Defense Lawyers has suggested that there must be reforms regarding conspiracy and proof of the offence. These considerations are still on the table, which is why the reforms have not been implemented, as of now.
Joint Liability
Introduction
Joint liability is a term used for people who have committed an act in pursuance of a common intention, where each of the persons is liable in the same manner, as this act was done by them alone. Section 34 IPC, states the joint liability of partners in crime.
Scope of the Principle of Joint Liability as Provided in Section 34
The section only provides for the constitution of joint liability, not the punishment. This section is only a rule of evidence and does not constitute a substantive offence. It provides for the principle of constructive liability. As this section is not an offence in itself, this section is always read with other sections under the Indian Penal Code, 1860. This is the limited scope of joint liability under Section 34, Indian Penal Code, 1860.
In the case of Chhotu v State of Maharashtra, the complainant and the proofs proved that there were three persons assaulting the victim. The three persons were held liable under joint liability and assault. So. it can be deduced that the section cannot be read alone and requires to be read with some other section under the statute of India.
Scope of ‘Common Intention’
Section 149 of the Indian Penal Code, specifies that there must be a common intention along with the unlawful act. The section holds the people in the act of unlawful assembly jointly liable for the act done through a common intention.
In the case of Queen v Sabib Ali, common intention was viewed as a pathway to complete the unlawful action.
In the case of Ganesh Singh v Ram Raja, the court said that the common objective must be achieved through a common intention of doing the task. It is generally ascertained by prior meetings, meeting of minds and pre-arranged plans of doing something which is not legal.
In Kripal Singh v State of Uttar Pradesh, the court said that the common intention is supposed to be ascertained from the facts and the circumstances of the case. The scope of common intention is also supposed to be ascertained by the facts and circumstances of the case.
What is Common intention? Guiding Principles
Common intention is guided by several principles:
Mere surrender is not derivative of the fact that it will be counted as common intention.
It is necessary that there has been a been a prior conspiracy relating to that act.
When the offence is proved only on the basis of circumstantial evidence, the allegations of common intention cannot be established in the absence of meeting of minds.
Section 34 is only a rule of evidence and does not create a substantive offence.
The common intention should be prior or antecedent to the occurrence.
Common intention may develop during the course of the occurrence and could develop on the spot.
Common intention is different from same or similar intention.
Section 34 is only a Rule of Evidence and Does Not Create a Substantive Offence
In the case of Sachin Jana and anr. v State of Bengal, it was mentioned that the section is a rule of evidence. The distinctive feature is the participation of the jointly liable people. The participation in the direct offence will not matter but the people will be jointly liable as though, the offence has been committed by that person only.
The Common Intention should be Prior or Antecedent to the Occurrence
The common intention doctrine states that there should be an antecedent to the occurrence. A clear distinction is made between common intention and common object is that common intention denotes action in concert and necessarily postulates the existence of a pre-arranged plan implying a prior meeting of the minds, while common object does not necessarily require proof of prior meeting of minds or pre-concert. Though there is a substantial difference between the two sections namely Section 34 and Section 149, they also to some extent overlap and it is a question to be determined on the facts of each case.
Common Intention may Develop during the Course of the Occurrence and could Develop on the Spot
Common intention has to be ascertained in the investigations, however, it is not necessary that it happens before the occurrence only. It might happen during the occurrence of the act as well. The intention is curated at any given point in the action.
Common Intention is Different from Same or Similar Intention
Common intention mentions the fact that the people involved in the act had a common intention, whereas similar intention includes the change in intention during the act due to the intervention of some other external circumstances.
For example: there had been common intention of 4 people to commit the offence of abduction. But, in the process, if one of them kills the person who was abducted without the consent of other parties. That person will be held liable for abduction and murder and the rest will be liable only for abduction.
Joint Liability in Context of Free Fight
Joint liability becomes complicated when it talks about the situation where people divide into hostile groups. The liability is difficult to determine because that creates a problem in ascertaining whether the offence has been committed by the people or not and to what extent is it performed by them.
Participation in the Criminal Act
Participation in the criminal act comprises of the following aspects:
Incitements;
Ordering, soliciting or inducing;
Participation in a common purpose;
Punishment as a perpetrator.
The criminal act is ascertained by the presence of these elements.
Absence of Overt Acts—No Proof of Common Intention
In Jai Bhagwan v State of Haryana, it was said that in the absence of any overt act and proof of intention, the common intention will not be proved and the person cannot be held liable for the offence. Common intention is a prerequisite for a crime in a joint liability, along with participation in the crime.
Effect
The crime will not be proved in case there is absence of proof of overt acts. The effect of such a circumstance is that one will be acquitted in the absence of proof of an overt act against him or her.
Proof of Common Intention: Rule for Evaluating Evidence
Proof of common intention is evaluated through the measurement of participation in overt as well as covert acts. The parties prove their involvements in the carrying out of the act. The proof of common intention is measured by witnesses and deduced circumstances.
Conduct of Parties as Evidence for Proving Common Intention
Common intention can also be proved by the statements provided by the parties involved. The conduct of parties as evidence may be used for proving common intention. For example, in the case of a theft, the conduct of the people involved, is proved by their participation and conduct in the crime.
Circumstantial Evidence as Proof of Common Intention
This counts as the basic mode of proving the common intention of people involved in the crime. The evidence that was found during the investigation of the circumstances is generally taken as the most important and crucial evidence of proving the common intention.
Necessity of Overt Act for Proving Common Intention
In the case of Suresh and Anr. v State of Uttar Pradesh, the court said that there either needs to be a direct evidence of the involvement or there has to be proof of a prearranged plan. The necessity arises from the fact that the common law does not allow any person who is not guilty to be charged as guilty. That is why there must be an ultimate proof of an overt act for proving common intention.
Appreciation of Evidence—Benefit of Doubt to be Given to Accused
The appreciation of evidence refers to the fact that there must be an applicable evidence which can be really be considered as an evidence. The evidence must be appropriate according to the Evidence Act, 1872. This evidence must be such that the person accused cannot be given the benefit of doubt under any circumstances. In case the evidence is not able to remove all the doubts, then it must be considered as insufficient evidence and the accused must be given the benefit of doubt. This is derived from the English legal systems.
Effect of Acquittal of Co-accused in Conviction using Section 34
The effect is such that if the parties are not able to prove the involvement of a co-accused, the person is acquitted from the charges. In this case, the co-accused who has already been proven guilty has to perform his term of the punishment. The convict may also bring evidence against the co-accused, in order to prove his or her guilt.
Effect of Charge Against Accused under Section 149, and not Section 34, Indian Penal Code 1860
The difference over here in these sections is just that of ‘common intention’. Charges may be imposed against people under Section 149, but in case they are able to prove that there was no common intention of the unlawful assembly then they may be absolved from criminal liability under Section 34. The same cannot be done if they are not able to prove lack of common intention.
Common Intention versus Common Object: A Comparative Analysis
Common object is a derivative of ‘motive’. Motive is the ultimate reason of each person involved, which is leading a group to pursue a common intention, which is the end result. The common intention is essentially the way in which the group in furtherance of the commission of the crime. The object must be similar in order to prove guilt. Motives may differ but the performance must contain a ‘guilty mind’.
Distinction between ‘Act’ and ‘Omission’
‘Act’ is the commission of some action in the direction of the commission of an offence. Whereas, omission refers to an act which was supposed to make the act legal, but the non-performance of that act makes this act illegal.
Difference between Section 34 and Section 37
The distinction between Sections 34 and 37 is that while the former requires a common intention for a criminal act done by several persons (i.e., unity of criminal behaviour which results in a criminal offence), in which case each actor becomes liable as if that act were done by him alone.
Section 37 deals with intentional cooperation in an offence committed by means of several acts, and punishes such cooperation (provided it consists in doing any one of those acts either singly or jointly with any other person) as if it constituted the offence itself.
Conclusion
Criminal conspiracy and joint liability are indispensable parts of our criminal legal system. The study above shows the relation between them along with understanding them separately. Where it is safe to say that there is still a large scope of possible reforms in the system, it has also been modified according to the need of the hour from the time.
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A distinguishing attribute of Information Utility [‘IU’] is that it provides authenticated information about debts and defaults. It is a path breaking concept as it accumulates all credit related information by creating an electronic repository for the same. The purpose of IUs is to record liabilities of all entities and the information would be disclosed in order to facilitate resolution of Insolvency and Bankruptcy cases.
Note: As per the report of the working group on Information Utilities, ‘The primary function of IU is to provide high-quality authenticated information about debts and defaults. Any information stored in IU should be acceptable to Courts as a prima facie evidence of the existence of a debt. Hence, it is important to ensure that the process by which information is stored in IUs is robust, standardized and rigorous.’
The intention of the Legislature by framing such provisions is that the records of debts and default maintained with IUs are readily accessible which shall aid NCLT to dispose off a Corporate Insolvency Resolution Process Application swiftly.
Objective Behind Setting Up of Information Utilities
If an entity commits a ‘default’ and as per Section 3 of the Code, it is not in a position to repay the outstanding debts to its creditors, then Creditors whether acting in a single capacity or in a consortium have a locus standi to initiate legal action against the Debtors. Default may occur due to variations in the financial status of the Debtor or maybe because of business failure. The idea behind incorporating such a provision in the code is to maintain an accurate record of all financial and operational liabilities of all entities.
In short, if the Insolvency Resolution Process is initiated, this would reduce the time taken to ascertain the debt and default and expedite the Insolvency and Bankruptcy process.
Elucidation of the Term – ‘Information Utility’
Section 3(21) states that IU means a person registered with Board under Section 210.
The relevant provisions of IU as incorporated in the Code is elucidated as follows:
Section 209– A person shall be eligible to carry a business as IU only if a certificate of registration is obtained from the Board.
Section 210– A certificate of Registration shall be issued if all the technical formalities are completed as prescribed by the Board.
The same shall be suspended or cancelled if obtained through making a false statement or misrepresentation or by any other unlawful means or has failed to comply with regulation of Board or provisions of code.
Section 213 – IU shall provide services which include core services to any person if such person complies with the terms and conditions of the regulations.
As per Section 3(9), Core Services means – Accepting electronic submission of financial information;
Safe and accurate recording of Financial Information;
Authenticating and verifying financial information submitted by person;
Providing access to information stored with IU to person as may be specified.
Meaning Of Financial Information And Persons Eligible To Submit Relevant Information To IU
In pursuance of Section 3 of the Code, submission of financial information falls within the ambit of ‘core services’ provided by IU. Financial information would include:
Financial statements;
Debts and record of default;
Records of assets over which any security interest is created.
Creditors [Either Financial /Operational or any other creditor], Corporate Debtors including its Authorized Representatives or Guarantors are eligible to submit information to IU.
Obligations of IUs
As per Section 214 of the Code, the financial information stored in every IU shall be in a universally accepted format and shall meet minimum service quality standards as specified by regulations. In addition to this, before storing any such information, it shall be the duty of IU to get the information authenticated by all concerned parties. If any party is willing to submit information through electronic means, then it shall be the duty of IU to accept such submissions via electronic means. If any person registered with IU is willing to access any relevant information, then IU shall provide access for the same.
Role of IUs
It maintains a repository of debts and defaults;
The information shared with the Adjudicating Authority is a prima facie evidence which can be rebutted;
Its primary function is to procure, maintain and provide information to all concerned stakeholders of a Company which includes the Corporate Debtor.
NeSL
National e-Governance Services Limited is India’s first IU. The information relating to the process and functioning of NeSL is extracted from the NeSL’s website and explained as follows;
PROCEDURE FOR SUBMISSION OF FINANCIAL INFORMATION TO IU – Any person may submit financial information to IU on payment of requisite fees; KYC like PAN, Aadhar, CIN etc has to be produced before the authority for due verification. Thereafter user registration will be initiated. For Banks/FI, ‘super user’ would be created with a facility to create sub users.
FORMAT OF SUBMISSION OF FINANCIAL INFORMATION TO IU – It can be submitted in Form C – Data Input File Format prescribed and published by NeSL.
ACKNOWLEDGEMENT OF SUBMISSION OF INFORMATION TO IU – IU shall assign a unique identifier to such information, including record of debt, the terms and condition of authentication/ verification and notify the user in the manner in which information can be accessed by other parties. The registered user is authorized to view the data in which information was last updated and can check the status of authentication/verification while providing access to information.
PROCESS OF AUTHENTICATION
Financial information furnished by one of the parties connected to a debt needs to be verified and authenticated by all other parties connected to the debt by affixing digital signature or Aadhar based e-signature. Persons can access the authenticated information during Insolvency Resolution Process;
IU shall provide annual statement to registered user free of cost;
Rectification/Modification of financial information can be made by stating reasons in the manner prescribed in Code/ Regulations;
During process of authentication, party has an option to review or affix his remarks item-wise for the data, while authenticating the information furnished by IU. Such dispute will be referred to Financial Creditors/ Banks for resolution;
If Borrower does not authenticate the debt information or default within 7 days, the same shall be referred back to Banks/ Financial Creditors for resolution.
To access or retrieve any information, person has to pay fees as specified in the regulations.
The information shall be preserved with NeSL, for a period of 8 years from the date of closure of debt or from date of last update in a debt a/c.
GRIEVANCE REDRESSAL MECHANISM OF NeSL
Any person not satisfied with the services offered by NeSL, can lodge his or her grievance in the web based grievance redressal mechanism enabled in the website. The same shall be resolved within 7 working days and communicated to the person via email.
In case the maker of the representation is not satisfied with the reply, he can escalate the matter to the grievance redressal committee of NeSL, which would be examined by the said committee, and resolution would be ensured in 10 working days.
Any Person Aggrieved By Functioning Of IU Can File A Complaint With IBBI.
Access to the Information Stored with the Information Utility
Parties to the debt and the host bank;
The insolvency professional, to the extent provided in the code;
The adjudicating authority and the board;
Any person authorized to access the information under any other Law.
Critical Analysis Of The Apposite Provisions Of Insolvency And Bankruptcy [Information Utilities] Regulations, 2017 Read With Insolvency And Bankruptcy Board Of India(Information Utilities) (Amendment) Regulations, 2019
REGULATION 3- ELIGIBILITY FOR REGISTRATION AS IU
Public Company with a sole object to provide core services and other services under these regulations and has a minimum net worth of INR 50 crores is eligible to be registered as IU. Persons who shall be eligible to function in the capacity of IU shall be – the person itself, its promoters, directors, its KMP and persons holding 5 per cent directly or indirectly its paid up share capital or its total voting power.
KEY FACTORS DETERMINING FIT AND PROPER PERSON
Having Integrity, reputation and character;
Absence of conviction by a Court for an offence or sentenced to imprisonment for a period less than 6 months;
Absence of restraint order issued by financial sector regulator or adjudicating authority;
Financial solvency.
REGULATION 4 – REGISTRATION AND RENEWAL
Application for Registration – FORM A of the schedule and non-refundable application fee of INR 5 Lakhs;the same procedure for renewal shall be followed as aforesaid but the application for renewal shall be filed within 6 months before expiry of registration.
REGULATION 5 – DISPOSAL OF APPLICATION
If Board may grant or renew certificate of registration in FORM – B within 60 days of receipt of application;If Board is of the opinion that registration shall not be granted; it shall inform the same within 45 days of receipt of application; The applicant shall rectify the errors or justify his statements mentioned in the application within 15 days of receipt of communication and Board may accept or reject the application within 30 days of receipt of explanation.
REGULATION 6 – CONDITIONS FOR REGISTRATION
As per IU Amendment Regulation, 2019 – ‘Conditions for Registration’ shall include – ‘(e) pay an annual fee of fifty lakh rupees to the Board, within fifteen days from the date of commencement of the financial year. Provided that no annual fee shall be payable in a financial year in which an IU is granted registration or renewal as the case may be. Provided further that without prejudice to any other action, which the Board may take as it deems fit, any delay in payment of fee by an IU shall attract simple interest at the rate of twelve percent per annum until paid.
Illustration a) – Where an IU is registered on 1st December 2016, it shall pay a fee of fifty lakh rupees within 15 days of receipt of intimation of registration. No further payment is required to be made for the financial year 2016-17. The annual fee of fifty lakh rupees for the financial year 2017-18 becomes due on 1st April, 2017 and the same shall be paid on or before 15th April, 2017 and so on. b) Where the annual fee is paid on 20th April, 2017, interest at the rate of 12 percent per annum shall be paid for the delay of five days.’
Prior approval of Board: The regulation also states that in case of acquisition of shares or voting rights by a person together with paid up equity shares or voting rights if any held by such person entitles him to hold more than five percent directly or indirectly of the paid up equity share capital or total voting power; change in control; merger, amalgamation or restructuring; sale, disposal, or acquisition of whole or substantially the whole of its undertaking; voluntary liquidation; dissolution or any other similar action involving discontinuance of its business then prior approval of Board is required.
It shall intimate the Board if a person holding 5 percent paid up share capital or voting powers ceases to hold directly or indirectly and the same shall be informed to the Board within 15 days from the date of cessation.
Regulation 8[1] states that no person shall at any time either directly/indirectly or together with persons acting in concert acquire or hold more than ten percent of paid up equity share capital or total voting power of IU.
However, a govt. Company, stock exchange, depository, bank, insurance co and public financial institution either by themselves or together in concert can acquire or hold up to 25 percent paid up equity share capital or total voting power.
Regulation 8[2] acts as an Exception to the aforesaid provision which states that: [“Notwithstanding anything to the contrary contained in sub-regulation (1) – (a)a person may directly or indirectly, either by itself or together with persons acting in concert, hold up to fifty-one percent of the paid up equity share capital or total voting power of an IU upto three years from the date of its registration; or(b) an Indian company, (i) which is listed on a recognized Stock Exchange in India, or (ii) where no individual, directly or indirectly, either by himself or together with persons acting in concert, holds more than ten percent of the paid-up equity share capital, may hold up to hundred percent of the paid-up equity share capital or total voting power of an information utility up to three years from the date of its registration. Provided that the information utility is registered before 30th September 2018.”]
The provisions of this Regulation shall not apply to the holding of shares or voting power by the Central Government or a State Government.
As per Regulation 9–The Governing body shall consist of –
Managing director;
Independent directors;Shareholder directors.
Provided that more than half of the directors shall be citizens of India and shall be residents in India. Meetings cannot be held without the presence of atleast 1 independent director. As per IU Amendment Regulations 2019, an individual may serve as an independent director for a maximum of two terms or three years each, or part thereof, or upto the age of[seventy-five years], whichever is earlier.
Moreover, a Compliance Officer shall be appointed as per Regulation 11who shall ensure compliance with provisions of the Code and shall report to the Board in case of noncompliance of any provision of the Code.
REGULATION 18–A person shall register itself with IU for submitting information or accessing information stored with any of the IU. IU shall verify the identity of the person and shall grant registration. The person shall be a unique identifier. Moreover, a person once registered with IU shall not register with any IU again. As per Regulation 19, different parties to same transaction may use different IU to submit or access information in respect of the same transaction.
Illustration – A debt transaction has creditor ‘A’ and debtor ‘B’. A may submit information about debt to IU ‘X’ and B may submit information to IU ‘Y’. – A user may access information stored with IU through any IU.
As per REGULATION 20- IU shall accept information submitted by user in FORM C and shall assign a unique identifier to the information, including records of debt.
‘Concept of Deemed Authentication’
ANALYSIS OF REGULATION 21 OF THE INSOLVENCY AND BANKRUPTCY BOARD OF INDIA (INFORMATION UTILITIES) (AMENDMENT) REGULATIONS, 2019
REGULATION 21 – THE AMENDMENT REGULATION HAS INTRODUCED THE CONCEPT OF DEEMED AUTHENTICATION.
As per the Amendment Regulation, the role of IU is strengthened by IBBI as it permits IU to access Corporate Debtor’s data through MCA21 database and CERSAI portal. Until recently, borrowers were overlooking IUs request to authenticate the information regarding ‘debts or defaults’.
Consequently, the concept of ‘Deemed Authentication’ has been introduced by the amendment regulation which aids IU to undertake the process of authentication and verification of Information of default as soon as it is received.
The IU shall inform the debtor atleast 3 times for confirmation of information of default. A minimum gap of 3 days shall be allowed each time for the debtor to respond. The information of default or the reminder as the case may be shall be delivered to the debtor either by hand, post or electronic means at the postal or e-mail address either registered with IU by him, failing which, recorded with any statutory repository as approved by the Board, failing which, submitted in FORM C of the schedule.
If Debtor confirms information of default – Colour of Status is Green; If Debtor disputes the information of default –Colour of Status is Red; If Debtor does not respond even after 3 reminders –Colour of Status is Yellow which leads to Deemed Authentication. Therefore, if debtor ignores the messages even after 3 reminders, then IU has the right to rely on information available at MCA 21 portal or CERSAI and IU could mark it as deemed to be authenticated.
Evidentiary Value Of Information Utility – Is it a Conclusive Evidence?
In pursuance of Section 4 of Indian Evidence Act, 1872, ‘ When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.’
However, information utility if admissible as Evidence cannot be conclusive in nature and can be rebutted.
Admissibility of IUs – Critical Analysis of Relevant Provisions of The Code Which Deals with IUs
Pursuant to Section 7 of the Code, ‘AA’ may ascertain the existence of default from a record of an IU on an application filed by a Financial Creditor. AA’ is not under any obligation to admit the same as evidence. The information available with IUs may be rebutted by the other party;
Pursuant to Section 9 of the Code, ‘AA’ may reject the application of an Operational Creditor if there is a record of dispute in the Information utility;
Pursuant to Section 43(3) of the Code, if Corporate Debtor has transferred a property or an interest thereof for the benefit of creditor, surety, guarantor and the creditor, guarantor or surety has a beneficial position that would have been in the event of distribution of assets being made in accordance with Section 53, then such transfer shall not be a preferential transaction if such transfer was registered with an IU on or before thirty days after the Corporate Debtor receives possession of such property. However, as the records available with IUs is not conclusive and can be rebutted.
Section 52 of the Code states that, in case of liquidation proceedings of the secured creditor, the liquidator shall verify such security interest and permit the secured creditor to realize such security interest, the existence of which may be proved either by the records available with IU or by any other means as specified by the Board.
Section 57 of the Code, states that the application for fast track corporate insolvency resolution process may be filed by a creditor or corporate debtor as the case may be, along with – the proof of the existence of default as evidenced by records available with an information utility or such other means as may be specified by the Board.
Note – All the aforesaid provisions provide clarification and specifically states that the records available with IUs may or may not be admissible and hence Principle of Conclusivity does not apply to IUs.
Relevant Provisions of The Indian Evidence Act, 1872
In pursuance of Section 65 B of Indian Evidence Act, information contained in any electronic record shall be deemed to be a document and shall be admissible in the Court of Law.
Section 31 of the Indian Evidence Act, states that the admission of fact might not be a conclusive proof of fact but previous admission will act as an estoppel on such admission.
As per Section 115 of the Act,‘ When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing.’
Landmark Judgment
As observed by Hon’ble Supreme Court in ‘Swiss Robbins Pvt. Ltd. &Anr. Vs. Union of India & Others.’‘The evidence of default with IU is only a prima facie evidence of default, which is rebuttable by the Corporate Debtor.’The moment information of default is received such information has to be communicated to all parties and sureties to the debt.
Significance of IUs
The Creditors or the Corporate Debtor has the right to procure information relating to ‘debt’ and ‘default’ from the IUs irrespective of whether creditor or debtor has initiated an Insolvency Resolution Process.
The concept of Deemed Authentication will be beneficial for all concerned stakeholders of the Company as borrowers will not be in a position to misuse any rights granted to them.
Data recorded with IU is made available to Adjudicating Authority [‘AA’] as and when required. It helps to make court process faster and smoother.
Concluding Remarks
As it is a digital database, there is a high possibility of data piracy. Necessary steps should be taken to avoid data piracy as it can adversely affect the stakeholders of the Company;
For ensuring that the relevant information is not corrupted, it is essential that the storage system available with IU should be of standard quality;
As thousands of records are submitted with IUs, it may happen that a small fraction of records are statistically incorrect.
Pursuant to Section 215 of the Code, it is mandatory for Financial Creditors to submit financial information to IUs. However, the same is not mandatory for Operational Creditors;
As per the Report of Bankruptcy Law Reforms Committee, the ultimate objective is for India to have an efficient bankruptcy and insolvency framework. This involves navigating the legislative track and going from the draft Law to a Parliamentary Legislation. This involves many other elements of building state capacity. Establishing a sound insolvency framework for India should be seen as a project which encompasses five things – a. The Legislative track; b. Establishing the Regulator; c. Initiating the industry of Information Utilities and phasing in comprehensive adoption of these utilities; d. Initiating the Insolvency Profession, and e. Establishing world-class adjudication infrastructure.’
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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 Courts and Parties in CrPC.
Introduction
The criminal justice system is the arrangement of federal, state, public and local agencies that deals with the menace created by crime in the society. The function of these agencies is to process the suspects, defendants, and convicts. Each agency is independent of the other agencies. In a country with a federal system of the Government, the structure of these agencies is usually determined by the three organs of the Government which are federal, executive and judiciary. The five important components of any judicial system are as follows:
Law enforcement;
Prosecution;
Defense attorneys;
Courts; and
Corrections.
Courts in the country are primary institutions of the justice system in a country. The persons accused of committing a crime are brought before the Court in order to determine their criminal responsibilities and liabilities. The main task of the Courts is to determine the truth and uphold the principles of justice in society. Prosecutors, judges and defence attorneys are the main actors in the Courts.
Parties to a suit in the legal sense is a collection of people who represent a particular claim which they make in the Court of law. In criminal cases, the parties to the suit occupy an important position as they are entitled by the statutes to claim damages or support the indictment of the Court and the party who bring any claim in a Court of law in order to obtain relief by the Court in criminal case is known as public prosecutor or aggrieved party and the party against whom the claim has been brought in the Court and who has to defend himself in the Court is known as accused person.
The Court
The main objective of Courts is to determine the duty and liability of the accused against whom the investing agencies like state police and central investing agencies. The Courts are an important component of the judicial system. In India, there is a four-tier Court structure. At the bottom of the hierarchy is the Court of Judicial magistrate. It has the statutory competency to try the offences which are punishable for a term less than or equal to three years. The Court of Chief Judicial Magistrate comes above it and it has the competence to try the cases for which the punishment is of a period less than seven years. Above both of the afore-mentioned Courts is the Court of District and Sessions Judge, it can try the offences involving punishment of the term more than seven years. The High Courts are the highest judicial authority in any state. High Courts have appellate jurisdiction by virtue of which the High Court can entertain the appeals against the judgement of conviction and acquittal passed by the Courts subordinate to it can be reversed. The High Courts are also the Courts of record. Therefore, all the decisions passed by the High Courts are binding on the Courts subordinate to it.
The topmost position in the hierarchy of the Courts is obtained by the Supreme Court. The Supreme Court also has the appellate jurisdiction over the matters related criminal, civil, Constitutional and others over which the decision has been passed by the High Courts. The Supreme Court is the Highest Court of appeal as all the judgements passed by it are binding on the other Courts in the country.
Courts to be independent and impartial
The framers of the Constitution strived to ensure that the judicial wing of the country remains independent and impartial and to achieve the same various provisions were incorporated in the Constitution. The Constitution of India guarantees the independence of the judiciary by different provisions relating to the same. For example,
Article 124(2) and Article 127 of the Constitution mandates that the judges shall be appointed by the President in consultation with the judicial authorities. Similarly, the removal of judges is also a difficult process as a judge can be impeached by the President only after the address for the removal of the judge is made by both the houses of Parliament on the grounds of proved misbehaviour and incapacity.
According to Article 125 and Article 221, the privileges, rights and allowances of the judges can not be reduced or altered during their tenure to their disadvantage. The Supreme Court and High Courts can appoint the staff and frame the rules applicable to the Courts.
Article 146 and Article 229 ensures the Courts in the country remains impartial by providing that the Supreme Court judges who have retired from the term of their office are debarred from pleading in any Court of law or in front of any judicial authority in the territory of India.
Article 121 and Article 221 guarantees the judiciary its independence by making the conduct of the judges in the discharge of their duties to be undebatable in any of the houses of the Parliament.
There are certain provisions in the Constitution which inhibit the independence of the judiciary, for example, the Constitution under Article 124(2) provides that the appointment of the judges other than the Chief Justice of India shall be by the President of India in consultation with the Chief Justice of India and such other judges as he may deem fit. However, in reality, the President holds only the nominal powers in the appointment of the other judges as he acts on the aid and advice of the Council of Ministers. So, there is always the possibility that the ministers may bring in politics in the appointment procedure.
Article 222 of the Indian Constitution provides for the transfer of judges of High Courts from one High Court to another. But, there is a possibility of abuse of power by the Government. The first instance of abuse of power was witnessed for the first time during the times of emergency, where the Government prepared a list of 56 judges who shall be transferred from one High Court without their prior consent. Aggrieved by such transfer of judges which was uncalled for one of the judges from the High Court of Gujarat Justice S.H. Seth filed PIL in the Supreme Court of India against the Union of India and the then Chief Justice of India Justice A.N. Ray. The Supreme Court in this case by majority held that the prior permission of the judges for their transfer was not mandatory. This case is popularly known as the Sankal Chand’s case.
Separation of power
The Doctrine of separation of power in its modern sense was first formulated by the French writer Montesquieu. The doctrine aims at the division and separate allocation of powers between the three wings of the Government, which are the legislature, executive and judiciary. In India, the separation of power is the basic structure of the Constitution. However, in India, the doctrine is not followed in its strict sense as it is followed in the United States because, in India, the separation of function and not that of powers is followed. The Constitution-makers diligently separated the functions of the legislature, executive and judiciary. The various Articles of the Constitution emphasizing on the separation of powers are as follows:
Article 50 under Part 4 of DPSP of the Constitution provides that the state should strive to separate the judiciary from the executive;
Article 121 and Article 221 prohibits the legislature from discussing the conduct of the judges in any of the house except in the matter of impeachment;
Article 122 and Article 212 prohibits the Courts from inquiring into the validity of the proceeding in the legislature;
Article 361 grants the President and governors of the state immunity from judicial proceedings.
The reasons for the non-incorporation of Articles relating to the separation of powers in the Constitution are as follows:
The conception of the thought of insertion of provisions relating to the separation of power was at the time when the Constitution of India was all ready to see the light of the day. Therefore, the framers of the Constitution thought that adding the provisions of separation of powers at that time was very late as it would result in the change of the basic structure of the Constitution;
The framers of the Constitution adopted the British Parliamentary system of Government and therefore they felt it better to abstain from adopting the complete separation of power as it is present in the American Constitution.
Open Court
Open Court is a routine function of the Court. Generally, the public is allowed to watch the proceedings which take place in the Court. The advantage of the open court is that it brings transparency in the administration of justice. As the people at large are able to witness the process of administration of justice and that invokes responsibility and caution in the minds of those who are under the obligation to administer justice to the aggrieved party.
The in-camera proceedings concept is an exception to open court concept as the public is exempted from watching the proceedings of the Court in the cases where it is not practical to allow people other than the parties to accommodate the courtroom. Even the advocates of the parties are not allowed to remain present in the court during the proceedings. The matrimonial disputes and the rape cases are the examples of such proceedings as in these cases it is desirable to maintain the secrecy with respect to the identity of the victim.
Transfer of case to secure impartial trial
Section 526 of the Criminal Procedure Code confers the power on the High Courts to transfer cases from any Court subordinate to it or to any other subordinate Court on any of the grounds mentioned therein. The power to transfer the cases is with respect to all the classes of cases. A District Magistrate, under Section 528(2) of the Criminal Procedure Code also has a similar power to transfer any case from any subordinate Magistrate and try the case himself or refer it for the trial to any other subordinate Magistrate for trial. Section 528(5) of the Criminal Procedure Code mandates that when a Magistrate making such transfer of case has to mention in writing the reason for such transfer.
The provision for transfer of cases from one Court to another ensures the protection of the two basic principles of natural justice which are Audi Alteram partem and Nemo judex in causa sua as the principle of transfer of cases is generally observed in the cases where the accused expresses following apprehensions:
The judge or the Magistrate has the personal interest involved in the case;
The judge or the Magistrate in any ways is connected to the party either through blood or fiduciary relationship and it is highly likely that he would act impartially;
The Judge or Magistrate has in the case expressed his preconceived notion on the enquiry of the trial and enquiry of the trial;
The conduct and behaviour of the judge are such that he can not be expected to hear the case and pass judgement in a fair and disinterested manner.
Therefore, the provisions relating to the transfer of cases to ensure that the trial is conducted in a fair and impartial manner.
Courts to be competent
The competence of a Court is the legal ability of the Court to exercise jurisdiction over cases involving the persons or things(property) on which it possesses the legal competency. Courts competency is referred to as its jurisdiction. Jurisdiction can also be defined as the authority which the Court has to hear and determine the case. The authority of the Court or its jurisdiction is determined Constitutionally. Examples of judicial jurisdiction are as follows:
Appellate jurisdiction is the one in which the superior court has the power to correct and amend the legal errors committed by the subordinate Courts while passing the judgements in the cases where a miscarriage of justice has taken place.
Concurrent Jurisdiction is the one which confers jurisdiction to two or more Courts over the same matter and in the same area and so the party bringing the suit is at liberty to bring the suit in either of the Courts which is more convenient to approach.
Original Jurisdiction is the one in which the Court holds the authority to hear the case in the first instance.
Article 124(1) of the Indian Constitution provides for the establishment of an integrated judicial system with the Supreme Court at its apex. Initially, the Supreme Court of India comprised of Chief Justice and seven other judges. Presently there are in total thirty-one judges consisting of a Chief Justice and thirty other judges. Article 127(1) of the Constitution contains the provisions relating to the appointment of ad hoc judges who shall be the judges of the High Courts by the Chief Justice of India in the Supreme Court for a particular matter after due consultation with the Chief Justice of the concerned High Court. Ad hoc judges are the judges who are temporarily appointed by the Court only for a particular matter. The ad hoc judges enjoy the same power and privileges which are guaranteed to a Supreme Court judge till the time they are appointed for the particular matter.
The Chief Justice of India is appointed by the President in consultation with such judges of Supreme Court and the High Court as he deems fit. The other judges of the Supreme Court are appointed by the President in consultation with the Chief Justice of India and the other judges of Supreme Court. The Supreme Court is called the Court of records because the judgments and decisions passed by it has evidentiary value by being binding upon the subordinate Courts.
The Constitution of India confers following powers to the Supreme Court
The Articles under the Indian Constitution which confer certain powers on the Supreme Court of India are mentioned below:
Article 129 empowers the Supreme Court of India to punish anyone for its contempt;
Article 32 and Article 136 of the Constitution of India confers the power of Judicial Review to the Supreme Court of India;
According to Article 127, the Chief Justice, in consultation with the Chief Justice of the concerned High Court can appoint any judge from the High Court of any state as ad hoc judge;
As per Article 134, the Supreme Court of India can withdraw any case from any of the High Courts in the Indian territory;
Article 137 of the Constitution confers the revisory jurisdiction upon the Supreme Court which empowers it to review the judgements of the subordinate Courts.
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High Courts
The establishment of the High Courts is provided under Article 214 of the Constitution of India, which provides that there shall be High Court in every state. The High Court in every state consists of Chief Justice and other judges. The Chief Justice of the High Courts is appointed by the President of India in consultation with the Chief Justice of India. While the other judges of the High Court are appointed by the President in consultation with the governor of the state, Chief Justice of India and the Chief Justice of the concerned High Court. The Constitution of India contains the following provisions in relation to the High Courts in the state:
Article 226 of the Constitution of India confers the writ jurisdiction upon the High Courts of the state and the writ jurisdiction with the High Courts is wider than that of the Supreme Court of India;
All the cases related to marriage, divorce or election can be directly brought before the High Courts;
The High Courts have the power to revisory jurisdiction with respect to the judgement passed by the Courts subordinate to it;
The High Courts have the power to punish anyone for its contempt;
The Constitution of India confers original, appellate, supervisory and administrative jurisdiction;
The High Court is the Court of records for the Courts subordinate to it as its decisions are binding upon the subordinate Courts and no subordinate Court can challenge the decision of the High Courts.
District Court and additional District Court
In every state, the state Government has established District Courts keeping in view the increasing number of cases which are present in the society and the population of the district. The district Courts ensure the administration of justice at the district level and are presided over by the district judge. The High Court of the state in which the district court is situated has the administrative and judicial control over the working of the District Court. The judges of the District Court are appointed by the President in consultation with the governor and the Chief Justice of the High Court of that state. The eligibility for the consideration of a person to become a judge of the district court is to be an advocate with at least seven years of practice. The different powers which the district Court has are as follows:
The District Courts have the authority to hear and decide criminal and civil cases;
The district judge has the authority to pass the judgements involving capital punishment to an accused who has been found guilty by the Court.
Court of civil judge (Senior Division)
The mean position in the hierarchy of the Court is occupied by the Court of civil judges or the senior division. Civil judge possesses the authority to try civil cases of any value without any pecuniary limit. There are many other additional Courts of Additional Civil Judge. The additional Courts of Additional Civil Judge possess the same jurisdiction as is possessed by the senior division or the Court of civil judge.
Court of civil judge(Junior Division)
The lowest place in the hierarchy of the Courts is occupied by the Court of civil judge of the junior division. These Courts have the authority to impose any sentence in accordance with the law in force. These Courts even have the authority to impose capital punishment. The civil judge in the junior division has the authority to extend its jurisdiction in all original suits and proceedings.
Courts of small causes for metropolitan cities
The Court of small causes for metropolitan cities was established under the Presidency Small Cause Courts Act, 1882. The Presidency Small Cause Courts Act, 1882 empowers the State Government to establish a Court of small causes anywhere in the state. These Courts have the authority to decide civil cases with a small value.
Munsiff Court or Court of sub judge III class
In any district, the lowest Court of appeal for appeal is the Munsiff Court. Its authority to try cases is limited to the certain pecuniary limit. Munsiff Magistrate or Judicial Collector preside these Courts. The Munsiff Magistrate or Judicial Collector also has the duty to keep a charge on all the tax collectors of the state. The territorial jurisdiction of these Courts is determined by the respective State Government.
Criminal Courts
Criminal wrong is considered to be wrong against society and not just against an individual. Criminal Courts deal with cases involving crime. The Supreme Court, through its appellate jurisdiction, has the authority to withdraw the cases involving the criminal matters before the High Courts of the state and transfer it to themselves. Section 6 of the Code of Criminal Procedure, 1973 provides the hierarchy of the criminal Courts in India. The hierarchy of the criminal Courts according to the Code are as follows:
Sessions Court;
Judicial magistrate of first-class;
Judicial Magistrate of second class;
Executive magistrate.
Sessions Court
Section 9 of the Code of Criminal Procedure, 1973 empowers the Government of each state to establish a Session Court in every Sessions division. The Sessions Judge is the presiding officer of the Sessions Court and he is appointed by the High Court of the state where the Sessions Court is located. A Sessions Court mainly deals with cases involving theft, murder, dacoity, etc. Sessions Court can pass a judgement providing the death sentence to any accused found guilty by the Court. The Court can also impose fines on any person for a criminal offence committed by him. The Sessions Court is the lowest court of the appeal of the criminal cases in the hierarchy of criminal courts.
Subordinate Judge Class I
Section 11 of the Code of Criminal Procedure empowers the State Government to establish any number of Courts Judicial Magistrate of first-class in the district after consultation with the High Court of the respective state.
Section 15 of the Code of Criminal Procedure states that the Chief Judicial Magistrate is subordinate to the Chief Judicial Magistrate and is therefore under the control of the Sessions judge. According to Section 29 of the Code of Criminal Procedure, judicial magistrate of the first class can impose a fine of value not more than ten thousand rupees and can pass a sentence of imprisonment of not more than three years.
Subordinate Judge Class II
Section 11 of the Code of Criminal Procedure empowers the State Government to establish any number of Courts of Judicial Magistrate of second-class in the district after consultation with the High Court of the respective state.
A Judicial Magistrate of second-class, under Section 29(3) of the Code of Criminal Procedure can impose a fine of not more than five thousand rupees or can pass a sentence of imprisonment of not more than one year.
The Prosecutor
Public prosecutors are appointed in almost all the common law country and are entrusted with the duty to uphold the principle of natural justice of Audi alteram partem according to which no party should be condemned unheard. The prosecutors act as the agents of the attorney general and represent the interest of the general public in criminal cases.
Section 2(u) of the Code of criminal procedure defines the meaning of the term prosecutor. According to the Section, a public prosecutor is a person who is appointed under Section 24 of the and the term also includes within its ambit the people who act under the control and direction of the public prosecutor.
In India, the public prosecutors being an officer of the Court act under the directions of the Court and assist the Government in the criminal matters as they are considered to be wrong against the state and not against any individual. The sole person of the public prosecutor is not to secure the conviction of the person by hook or crook.
The rationale behind the incorporation of the provision relating to the appointment of a public prosecutor is to secure justice to the affected party and to punish a person who has committed a crime because the crime committed by him is not against any individual but against the entire society. The public prosecutor has to abide by the following basic principles enumerated in the Constitution:
An accused person should be presumed to be innocent until and unless he is declared guilty beyond a reasonable doubt;
Article 21 provides the Right to life and personal liberty which can not be taken away from any person except in accordance with the procedure established by law;
Article 14 guarantees to individual equality before the law and equal protection of the law;
Article 20(1) guarantees protection against ex post facto law;
Article 20(2) guarantees protection against double jeopardy;
Article 20(3) guarantees protection against self-incrimination.
Appearance by Prosecutors
Section 301 of the Code of Criminal Procedure contains provisions about the appearance of the public prosecutor. According to the Section, the public prosecutor can appear and plead without any written submission before any Court in which inquiry, trial or appeal of any case is being heard by the competent authority. If in any suit a private person instructs a pleader to prosecute any person in any case. Then the prosecutor has to conduct the prosecution and the pleader is bound to act in accordance with the directions of the public prosecutor.
Others not to conduct prosecution without permission
According to Section 302 of the Code Criminal Procedure provides that any person including the complainant may with the permission of the magistrate can take part in the proceedings. However, the police inspector who has taken part in the investigation of the offence cannot be permitted to take part in the prosecution. The person permitted by the prosecutor to take part in the prosecution can do so personally or through any pleader.
In M/s. J.K. International vs. State, Govt of NCT of Delhi and Ors., the Court held that the scope of allowance of the private parties to attend the proceeding of the Court is greater than the provisions contained in Section 302 of Code Criminal Procedure and if any party requesting to the Court, the allowance to take part in the proceedings has to satisfy the Court that such allowance would be in favour of administration of justice.
The judgment of the Court in Dhariwal Industries Ltd. vs. Kishore Wadhwani and Ors. makes it clear that under Section 302 of Code Criminal Procedure, the complainant can be allowed to take part in the proceedings at the time of initial framing of the charges.
The Accused Person
An accused is a party in a criminal proceeding and is the person against whom criminal proceedings have been instituted. The Code of Criminal Procedure refers to the accused by different names based on the ongoing stage of the trial. The different names by which an accused is referred to in criminal proceedings are as follows:
Suspect: The word ‘suspect’ is used to refer to a person whose acts have been apprehended to be against the provisions of the Code. However, no criminal proceedings are initiated against the person whose acts are apprehended.
Accused:The word ‘accused’ is used to denote a person against whom the criminal proceedings are initiated.
Defendant: When the Court orders the initiation of the main trial the accused person is referred to as the defendant.
Convict: When the Court passes a final condemning order or judgement against the accused then the accused is referred to as convict signifying his guilt to be proved in the trial which has been instituted against him.
Obligations upon the accused
An accused is bound by the following obligations:
To make an appearance in a Court of law when called by the Court of law;
To help in the process of investigation by allowing the investing agencies personal search;
To allow the investigating agencies to make a house search or search the personal premises;
To submit the items which are important to carry on the proceedings;
To allow the doctors appointed by the state on orders of the Court to carry on the mental state;
To allow the biological test of blood or any other biological material which can act as a catalyser in the investigation.
The accused person is also given certain rights and privileges which are:
The Right to be a part of the criminal prosecution in a lawful manner which is conducted in accordance with the provisions mentioned under the Code of Criminal Procedure;
Right to be informed of all the legal procedures and defences which are available in his favour;
Right to choose a legal practitioner of his choice;
Right to file an appeal in the Higher Court and exhausts the legal remedies available for him;
Right to propose evidence which may help him in the case.
Accused of unsound mind
Section 84 of Indian Penal Code and Section 328 to Section 338 of the Code of Criminal Procedure under Chapter 35 of the Code contains provisions regarding the plea of insanity and persons with unsound mind respectively. The commission of any crime requires the presence of two elements by the person who is accused of commission of the offence and the two elements are actus reus and mens rea. The general perception is that a person of unsound mind lacks the mens rea essential for the commission of the crime and therefore can not be held liable for the commission of any crime. The provisions exempting the people of unsound mind from liability is a humane approach to deal with the people with unsound mind who accused who are accused of commission of an offence and so in order to preserve the interest of such people who do not have the capacity to give effect to any crime due to lack of mental capacity the provision.
The general provision guiding the magistrate to proceed with any case involving an unsound mind in Section 328 of the Code of Criminal Procedure, 1973. The provisions relating to the cases involving an accused of unsound mind and the guidelines for the Magistrate to deal with such cases are as follows:
When the Magistrate while carrying on the inquiry in the case has a general reason to believe that the person against whom the inquiry is conducted is of unsound mind and the accused person because of the same reason is not in a position to defend himself, then he shall confirm the same by ordering a medical examination to be conducted to check the mental state of the accused;
Once a medical practitioner examines and declare the person to be of unsound mind then the accused person should be examined by a psychiatrist or a psychologist to check whether the accused is of unsound mind or he is mentally retarded;
While the above-mentioned inquiry is going on, the magistrate may deal with the accused in accordance with the provision of Section 330(m) of the Code of Criminal Procedure, 1973;
If after the inquiry it turns out that the accused is of unsound mind then it is the duty of the Magistrate to ascertain whether the accused can defend the case;
If the accused can not defend the case, then the Magistrate has to hear the prosecution and also examine the records and hear the advocate representing the accused. If the Magistrate finds out that no prima facie case could be made out against the accused he shall discharge the accused person;
If the Magistrate finds out that there is a prima facie case, then he shall postpone the proceedings till such a time as he deems fit to be sufficient to cure the unsoundness or insanity of mind of the accused which shall be determined in accordance with the provisions of the Code;
If after the inquiry the medical practitioners come up with the finding that the accused is mentally retarded. Then the Magistrate shall order the closure of the case and the discharge of the accused who is mentally retarded. In such a case the magistrate shall deal with the accused in accordance with the provisions contained under Section 330 of the Code of Criminal Procedure.
Resumption of enquiry or trial
Section 331 of the Code of Criminal Procedure provides that when the magistrate discovers that the person who was declared to be of unsound mind has recovered from his unsoundness. Then the trial which was suspended due to the reason of his unsoundness shall be resumed. Section 332 of Code of Criminal Procedure that if the Court is satisfied that the person because of whose unsoundness of mind the proceedings were suspended and were resumed under Section 331. Then according to Section 333 of the Code after the resumption of the proceeding if the Court finds out that the person appears to be of sound mind and there is a sufficient reason to believe that the act done by the accused could not have been done by a person of unsound mind. Then the Court shall proceed with the case itself or transfer the same to the Sessions judge if the laws in force require so.
The Court in Ambujam v. state of Kerala held that the provisions exempting the liability of the accused who is of unsound mind are a humane step to protect the interest of the people of unsound mind who lack the mental capacity to commit a crime.
More than one accused at one trial
The concept of joint liability is recognized under both civil and criminal law. In criminal cases, the concept of joint liability is given under Section 34 of the Indian Penal Code. The Section provides that if two or more people in furtherance of common intention to commit an act which constitutes a crime then, each of them will be punished as if the act is done by each of the persons alone. The key elements of Section 34 are as follows:
Several persons commit a crime;
The crime is committed in furtherance of a common intention;
Each person should have participated in the commission of the crime.
Section 120(A) of the Indian Penal Code also contains the provisions regarding joint liability. The Section provides that where two or more people agree to commit an illegal act or an act which otherwise is legal but if done illegally becomes illegal. Such an agreement shall be designated as a criminal conspiracy. However, in order to declare an act as a criminal conspiracy, it is essential that there should be some act committed in furtherance of the agreement.
In Chottu v. State of Maharashtra, there were four defendants who were accused of assaulting the deceased. However, the Court released the fourth accused as not being guilty because the witnesses in the case furnished that the fourth person was only standing with knife in the place where the crime took place and the Court decided in favour of the fourth person because he was not acting in furtherance of the common intention to commit crime.
Right to be defended by a lawyer
Article 22(1) of the Constitution makes the Right to consult and be defended by a legal practitioner of his own choice as a fundamental Right. The rationale behind such right is that the general public is not usually aware of rights and privileges which are guaranteed to him by the law of the land and therefore it becomes imperative to provide him with such legal aid which would help him to prove his innocence in the Court of law.
The Court in Hussainara Khatoon v. Home Secretary, State of Bihar, the right Constitutional remedy is a fundamental right guaranteed to every citizen who is an accused and it cannot be denied to him even if the accused fails to apply for legal aid.
Section 303 of the Code of Criminal Procedure also contains the provisions related to the right to legal aid with an accused. The Section provides that any person who is accused of committing a crime or any person against whom criminal proceedings are instituted in from of the criminal Court shall have the right to engage any legal practitioner of his choice to plead before the Court in his favour.
In Moti bai v. State, the Court held that Right to be defended by the lawyer of ones choice begins from the moment of the arrest of the accused that is from the pre-trial stage.
Legal Aid at State expense
Section 304(1) of the Code of Criminal Procedure contains legal provisions with respect to the right of legal aid to an accused at the expenses of the state in certain cases. The Section provides that where an accused who is appearing before the Court of Session satisfies the Court that because of his indigence or any other reason he is unable to appoint any legal practitioner of his choice. Then the Court may appoint any pleader for such an accused person at the expenses of the state.
Section 304(2) of the Code of Criminal Procedure provides that the High Courts with the approval of the State Government are competent to make rules relating to the mode of selection of the pleader and the fees and allowances to be provided to the pleader who is appointed for the fulfilment of Section 304(1) of the Code of Criminal Procedure.
Conclusion
It is evident from the Article that judiciary in India is the most important organ for maintaining public peace and order by providing justice to each and every person who knocks on the doors of the Court. The Constitution has always played a crucial role in strengthening the judicial institutions of the country. The establishment of the four-tier judicial system was a well-planned effort by the framers of the Constitution to maintain the administration of justice in a diverse country like India with a huge population by providing the aggrieved party opportunities to resolve their grievances whenever they feel that they have not been meted out with justice.
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This article is written by Gauraw Kumar, a 2nd-year student of BVP-New Law College, Pune. This article covers a very important case of 2018 “Indian Young Lawyers Association vs State of Kerala and Ors.” popularly known as “Sabarimala Case” and tries to explain its facts, history, issues and judgement of the case.
Introduction
Women in our society have always struggled for equal status and representation in public spaces. But, the situation is changing now and various reforms have come through the judgements of the Courts. Like in Shah Bano case, the Supreme Court has protected the rights of Muslim women from the practice of triple talaq. In the case of Dr Noorjehan Safia Niaz vs. State Of Maharashtra & Ors., the Supreme Court has allowed entry of women inside Haji Ali Dargah.
Now, the case of ‘Indian Young Lawyers Association vs. State of Kerala and Ors.’ involved women’s struggle for getting the entry in Sabarimala Shrine Temple located in the State of Kerala. Women have done a lot of struggle for the protection of their rights. The Ayyappa temple in Sabarimala region in Kerala has been controversial for provision of restricting women of menstruating age (10-15 years of age) to enter into Sabarimala Temple, Kerala. In this case, there were many issues raised in which it was argued by petitioners that provisions related to the restriction of women entry in Temple are unconstitutional as it violates Article 14, 15, 17, 25, 26 of the Indian Constitution.
Finally, the Supreme Court held that women of all age groups can enter Sabarimala shrine Temple as everyone has a right to worship and it is the constitutional and fundamental right of everyone given in Article 25 and 26 of the Indian Constitution.
There are differences in Constitutional ideals and social reality. There is a wide gap between provisions given in the Indian Constitution and the reality of society. In this case, the Supreme Court has tried to bridge the gap between both.
Summary of Facts
There is a Hindu Temple dedicated to Ayyappan named Sabarimala shrine in the State of Kerala. It is a temple located at Sabarimala inside the Periyar Tiger Reserve in ‘Pathanamthitta’ district of Kerala.
The Sabarimala shrine, which is one of the most famous temples in Kerala, had restricted women (of menstruating age) from entry.
Several women tried to enter the Temple but could not because of threats of physical assault against them.
A group of five women lawyers had moved the Apex Court challenging the decision of the Kerala High Court which upheld the centuries-old restriction, and ruled that only the “Tantrik (Priest)” was empowered to decide on traditions.
Identification of Parties (including the name of the judges)
In 1990, S Mahendra filed a petition, alleging that young women were visiting Sabarimala Temple. The verdict of the same came in 1991 where Justice K. Paripoornan and K. Balanarayana Marar of Kerala High Court held that women of ages 10 to 50 years old are banned from offering worship at Sabarimala Temple and stating that such restriction is not from today, it was from accordance with usage prevalent for a very long time. The High Court also directed the Government of Kerala to enforce the order to ban entry of women in Temple with the help of Police Force. The Court observed as:
Such restriction of women entry is not violative of Article 15, 25 and 26 of the Indian Constitution and also the provisions of Hindu Place of Public Worship Act, 1965. As there is no restriction between two classes or sections of society but the restrictions are only for women of particular age group.
In 2006, Members of the Indian Young Lawyers Association (consisting six women), filed a petition in the Supreme Court to lift the ban to enter into Sabarimala Temple against women between the ages of 10 and 50. They forwarded arguments that this ban was a violation of their constitutional rights and also questioned the validity of provisions given in Kerala Hindu Places of Public Worship Rules Act,1965 which supported it.
Petitioner(s): Indian Young Lawyers Association; Dr Laxmi Shastri; Prerna Kumari; Alka Sharma; Sudha Pal.
Respondent(s): The State of Kerala; Travancore Devaswom Board; Chief Tanthri of Sabarimala Temple; District Magistrate of Pathanamthitta; Nair Service Society; Akhil Bhartiya Ayyappa Seva Sangham; Ayyappa Seva Samithi; Ayyappa Pooja Samithi; Dharma Sanstha Seva Samajam; Akil Bhartiya Malayalee Sangh; sabarimala Ayyappa Seva Samajam; Kerala Kshetra Samarak Shana Samithi; Pandalam Kottaram Nirvahaka Sangham; sabarimala Custom Protection Forum
Petitioner’s Lawyers: R.P. Gupta; Raja Ramachandran (Amicus Curiae); K. Ramamoorthy (Amicus Curiae).
Respondent’s Lawyer: Jaideep Gupta; Liz Mathew; Venugopal, (Travancore Devaswom); V.Giri, (State of Kerala); Rakesh Dwivedi; K. Radhakrishanan.
In this case, there were 5 judges constitutional bench includes Chief Justice of India Dipak Misra, Justice A M Khanwilkar, Justice R F Nariman, Justice D Y Chandrachud and Justice Indu Malhotra.
Issues before the Court
There were mainly three issues raised in this case:
Whether this restriction imposed by the temple authorities violates Articles 15, 25 and 26 of the Indian Constitution?
Whether this restriction violates the provisions of Kerala Hindu Place of Public Worship Act, 1965?
Whether the Sabarimala Temple has a denominational character?
Arguments by Parties on Issues
There were many arguments passed by both parties on these issues. These are the following:
Arguments in favour of women entry
The arguments given in favor of women entry by the petitioners were- Menstruation is not impure, and that women should have equal rights to enter the Sabarimala Temple. A criticism claims that we cannot consider women are impure based on menstruation and it is gender discrimination. The Chief Minister of Kerala, Pinarayi Vijayan, said that his party (Left Democratic Front) has always supported gender equality and we provide facilities and protection for women. This practice also violates Article 14 (Equality before Law) of the Indian Constitution as discrimination on the basis of a specific age group of women is not reasonable discrimination.
This restriction violates Article 15, 25 and 26 of the Indian Constitution:
Article 15 deals with “prohibition on the ground of religion, race, caste, sex or place of birth”. Here, this practice involves violation of Article 15 as discrimination to enter the temple was based on ‘sex’.
Article 25 deals with “freedom of conscience and free profession, propagation and practices of religion”. Here, this practice involves violation of Article 25 as it prevents women from freedom of practice of religion.
Article 26 deals with “freedom to manage religious affairs”. Here, this practice clearly violates the provision of Article 26.
The provisions in Kerala Hindu Place of Public Worship Act, 1965 which support restriction to women’s entry in the temple is unconstitutional as it violates Article 14, 15, 25 and 26 of Indian Constitution.
One of the arguments from the side of the petitioner that the Lord Ayyappa temple was not a separate religious denomination for Article 26 because the religious practices performed in Sabarimala Temple at the time of ‘puja’ and other religious ceremonies are not different from other religious practices performed in other Hindu Temples.
Arguments against women entry
The arguments given against women entry by Respondent- Such religious practices are not so old as it is a tradition to respect God/Goddess of Temple. Men are also restricted to enter and worship in several temples, for example, Bramha temple, Pushkar.
There is no violation of Article 15, 25 and 26 of the Indian Constitution as the restriction is only in respect of women of a particular age group and not women as a class. If the practice of restriction to the entry of women is made for women as a class, then only it will violate the above-mentioned Articles of the Indian Constitution.
The provisions in Kerala Hindu Place of Public Worship Act, 1965 also support this restriction.
Judgement (Ratio decidendi and Obiter Dictum)
Ratio decidendi
‘Ratio decidendi’ is the rule of law on which judicial decision is based. It is legally binding.
On 28th September 2018, the Court delivered its verdict in this case by 4:1 majority which held that the restriction of women in Sabarimala Temple is unconstitutional. It held that the practice violated the fundamental rights to equality, liberty and freedom of religion, Articles 14, 15, 19(1), 21 and 25(1). It struck down Rule 3(b) of the Kerala Hindu Places of Public Worship Act as unconstitutional. Rule 3(b) allowed for Hindu denominations to exclude women from public places of worship, if the exclusion was based on ‘custom’.
The Apex Court has allowed entry of women of all age groups to the Sabarimala Temple, and held that “Devotion can not be subjected to Gender Discrimination.”
Obiter dictum
‘Obiter dictum’ is a judge’s expression of opinion uttered in court or in a written judgement, but not essential to the decision and therefore not legally binding as a precedent.
In this case, the Court ruled thus:
“We have no doubt in saying that such practice infringes the right of women to enter a temple and freely practice Hindu religion”.
“Devotion can not be subjected to Gender Discrimination”.
Hon’ble Chief Justice of India stated in his Judgement that religion is a way of life linked to the dignity of an individual and patriarchal practices based on the exclusion of one gender in favour of another could not be allowed to infringe upon the fundamental freedom to practice and profess one’s religion.
The lone woman on the bench, Justice Indu Malhotra, dissented.
Chief Justice Dipak Misra, Justice R F Nariman, Justice A M Khanwilkar and Justice D Y Chandrachud constituted the majority.
Chief Justice of India Hon’ble Dipak Misra while reading out portions of the judgement written for himself and Justice A M Khanwilkar said that women are not lesser or inferior to men. Religious patriarchy cannot be allowed to triumph over belief. Biological reasons (such as menstruation) can not be accepted in freedom for faith. Religion is basically a way of life.
The separate but concurring opinion of Justice Nariman held that “Anything destructive of individuality in anachronistic of Constitutionality. To treat women as people of lower status blinks at the Constitution itself”. It was held that Ayyappas do not constitute a separate religious denomination.
Justice Chandrachud in his separate but concurring opinion held that the idea behind the ban was that the presence of women will disturb virginity, and that was placing the burden of men’s virginity on women. This stigmatises and stereotypes women, he observed.
Justice Indu Malhotra, in her lone dissent, held that issues of deep religious sentiments should not be ordinarily be interfered by the Court. The Court should not interrupt in this matter unless if there is any resentful person from that section or religion. The notion of rationality should not be seen in religious matters. She also held that shrine and the deity are protected by Article 25 of the Indian Constitution.
Case Description and Status
The Apex Court has declared that the practice of restricting women of a specific age group in their ‘menstruating years’ from entering Sabarimala Temple is unconstitutional.
Current Status of case: There are review petitions filed challenging the judgement pending.
Conclusion
Freedoms related to religion are essential elements for the functioning of democracy in a country like India. As we know, Constitutional ideals and Social reality are very different from each other but it is also necessary to reduce the differences as much as possible for the smooth and proper functioning of society. In the case of ‘Indian Young Lawyers Association vs. State of Kerala & Ors’, Apex Court has tried to bridge the gap between constitutional ideals and social reality.
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 skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
This article is written by Yamini Jain, a student of III year BA LLB at ILS Law College, Pune, and it provides a brief overview of the ‘Offences relating to children’ under the Indian Penal Code, 1860 along with relevant case laws.
Introduction
The offences relating to children under the Indian Penal Code, 1860 include those enlisted under Sections 312- 318, i.e. causing of miscarriage, injuries to unborn children, abandonment & exposure of infants, concealment of births & secret disposal of their dead bodies.
Causing miscarriage
Sections 312, 313 & 314 deal with the offence of causing miscarriage and its aggravated forms, distinguishing the liability into two categories with reference to the woman’s consent and of her being ‘with child’ or ‘quick with child’.
Essential Ingredients
Voluntarily Causing Miscarriage
The provision under the aforesaid Sections is applicable to such cases where miscarriage is voluntarily caused. Section 39 of the IPC defines ‘voluntarily’ as to intentionally cause/ employs such means as known to be likely to cause an effect, thus, intention/mens rea to cause miscarriage is an essential element of this offence.
Woman with Child and Woman Quick with Child
The factum of pregnancy is a prerequisite to the offence. The sections provide distinct liabilities for offences against a woman who is known to be ‘with child’ or ‘quick with child’. In the case of Queen-Empress v. Ademma, it was held that “the moment a woman conceives and the gestation period/ pregnancy begins, the woman is said to be ‘with child’; while in another case of Re: Malayara Seethu, a woman ‘quick with child’ was referred to as a more advanced stage of pregnancywherein ‘quickening’ is perceived to be the mother’s stimulus to the movement of her foetus. However, an offence against a woman quick with child’ is an aggravated form of that against a woman ‘with child’, and hence, the punishment prescribed for the latter is imprisonment for upto 3 years/ fine/ both, and for the former is upto 7 years with fine.
Miscarriage
Ther term ‘miscarriage’ has not been defined under the IPC and its usage is synonymous to ‘abortion’. In the legal context, miscarriage is the premature expulsion of the product of conception at any time before the full term is reached; while medically, three distinct terms of abortion, miscarriage, and premature labour are used to indicate the expulsion of the foetus at different stages of gestation. ‘Miscarriage’ is particularly used if such expulsion occurs from the fourth to the seventh month, before it’s viable.
Consent of Woman
Sections 312 & 313 deal with the aspect of the woman’s consent against whom such offence is committed. Section 312 envisages the situation where the woman consents to the causing of miscarriage of her foetus and is held equally liable to the committing of such offence with imprisonment of upto 7 years and fine. Section 313, on the other hand, manifests a much graver form of such offence, i.e committed without that woman’s consent and hence is liable to imprisonment for life, or upto 10 years & fine.
Causing of Miscarriage Resulting in Death of Woman
According to Section 314 of the IPC, an act done with the intention of causing miscarriage, when results in the death of such woman, it is an offence liable with imprisonment of upto 10 years and fine. Provided, if the woman was one to be ‘quick with child’, or if such offence was committed without the woman’s consent, then it is considered a more serious offence and hence may be punishable with imprisonment for life. It has to be stated here that intention to cause/ knowledge of the act likely to cause death is not an essential element for it to constitute an offence under this Section, but a direct nexus between the act done and the death of the woman has to be established before the Court.
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Exceptions
Exceptions to the offence of causing miscarriage/ abortion are twofold:
Good faith- Section 312 of the IPC exempts such persons who cause miscarriage in good faith (as defined under Section 52) to save the woman’s life.
Medical Termination of Pregnancy Act, 1971- It was enacted to legalise the termination of certain pregnancies by registered medical practitioners in order to provide for safe abortions. The Act, prevailing over the aforementioned provisions of IPC, allows a woman to legally abort her pregnancy if its continuance would be injurious to her life (physically/mentally); if the foetus is detected with abnormalities; or if such pregnancy is a result of rape or failure of contraceptives.
Injury to an Unborn Child
Sections 315 & 316 envisage the provisions relating to injury caused to an unborn child. They cover the situations where an act is done with the intention of preventing such child to be born alive; or causing the death of a child who’s quick unborn by an act amounting to culpable homicide.
Essential Ingredients of Section 316
Act to Be Before the Birth of the Child
An essential element under these two provisions is that the culpable act/actus reus should be done before the child is born resulting into the prevention of such child being born alive or cause it to die after its birth. It merely covers injury caused to an unborn child, since whence such act is committed after the birth of the child, it’d be dealt with other provisions of the IPC.
Intention
Section 315 declares that the ‘intention to prevent a child from being born alive/to cause it to die after its birth’ is essential to the offence committed under it, except when done in good faith for the purpose of saving the mother’s life. An offender under this Section shall be liable with imprisonment which may extend to 10 years/fine/both.
Causing Death of Quick Unborn Child by Act Amounting to Culpable Homicide
Section 316 is a graver variant of Section 315, wherein the act is done with the intention/ mens rea to commit an offence amounting to culpable homicide (presumably of the mother), which act though does not cause the death of the mother, but causes the death of a quick unborn child, and is punishable with imprisonment of upto 10 years and fine. Further, if the actus reus results in the death of the mother, then it shall amount to culpable homicide[1].
Abandonment and Exposure of an Infant
Section 317 of the IPC deals with the offence of exposing a child under twelve years of age with an intention of wholly abandoning it, done by a parent or any person having care of it. An offender under this Section shall be liable with imprisonment of upto 7 years/fine/both.
Essential Ingredients of Section 317
Child to Be Under twelve Years
This Section makes provision for the protection of children under twelve years of age as they’re considered inefficient in safeguarding themselves, and applies equally to all children irrespective of their legitimacy. The primary responsibility is cast on the parents & persons holding custody of such a child for the purpose of its care & protection.
Responsibility is on Both Father and Mother or Person Having Care of Such Child
Contrary to the provisions of the Guardians & Wards Act 1890, wherein the father is declared as the natural guardian of the child, the IPC as per Section 317 equally obliges both the father & mother alike to provide care & protection to the child, irrespective of the child being born in/outside wedlock.
Section 317 also places a similar duty & liability, as imposed upon the parents of the child, on the person made responsible for the care & protection of the child, and hence, daycare centres, creches, orphanages, etc. are all included under it[2].
Exposing or Leaving with Intention to Abandon
The essence of this provision of the IPC is ‘exposing/leaving’ the child along with an ‘intention to abandon’ it. The term ‘leave’ must be read ejusdem generis with ‘expose’, as together they denote the explicit meaning of this Section, declaring that leaving of the child in danger, neglecting it, and inadequately protecting it from naturally hazardous elements.
Further, it manifests that such exposure/leaving of the child must be accompanied with the intention of abandonment of the child. It, therefore, indicates not merely leaving the child temporarily, it should have been done with the required intention to constitute an offence under this Section.
Death of Child As a Consequence of the Exposure
The explanation to Section 317 stipulates that whence the death of a child under 12 years of age is caused because of the aforementioned exposure/leaving, then the parent or such person in whose care the child was placed, shall be held liable for the offence of culpable homicide or that amounting to murder. However, it is essential to note that the death so caused must be a proximate consequence of such unlawful exposure/abandonment and should’ve been done with the knowledge that it’s likely to cause such death.
Concealment of Birth of a Child
Section 318 of the IPC deals with a situation where a person intentionally endeavours to conceal a child’s birth by secretly burying or disposing of the dead body of the child, irrespective of the death occurring before/after/during its birth. A person convicted under this Section shall be liable with imprisonment which may extend to 2 years/fine/both.
Essential Ingredients of Section 318
Secret Disposal of Bodies of Children
In accordance with the general policy of publicising births & deaths, the Registration of Births & Deaths Act, 1969 imposes a compulsion upon every person to register births and deaths with the local authorities, since the certificates issued for it are rather essential for various civil transactions. Detection & prevention of infanticide is one of the prominent principles operating behind this provision. Moreover, Section 318 while recognising the secret burial of the child’s body circumscribes all other methods of it being secretly disposed of.
Dead Body of Child
The term ‘body’ in this Section indicates a precondition that the secret burial/disposal should be of the dead body of the child, i.e. the child should not be a mere embryo/foetus but should’ve been developed and matured. Further, in the case of Radha v. State of Rajasthan, it was held that if the child were alive at the time of such secret burial/ disposal, then no offence would be made out under this Section, but would attract other provisions of the IPC.
Conceals or Endeavours to Conceal Birth
An essential element stipulated by this Section is that of the intention of the accused to conceal/attempt to conceal the birth of the child. The offence becomes complete when the birth of the child, dead/living, is concealed by any means.
Conclusion
It is understood that the offences enumerated in the aforementioned sections have been accentuated by the social pressures and value-based judgments on unwed mothers. Though the male members are equally responsible, the social stigma & ostracisation is placed on the woman only, which in turn leads a woman to abort her child. Further, the situation of abandonment of children/infanticide is mostly seen in respect of female children only. Unless this social attitude changes and social reforms are brought in good measure, all of us at large hold a moral responsibility for these offences committed against children.
References
The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860.
3 Hari Singh Gour, PENAL LAW OF INDIA 3175 (11th ed. 1998).
K I Vibhute, P.S.A PILLAI’S CRIMINAL LAW 731- 739 (13th ed. 2019).
Queen Empress v. Ademma, (1886) ILR 9 Mad 369.
Re Malayara Seethu, AIR 1955 Kant 27.
Jaising P. Modi, MEDICAL JURISPRUDENCE & TOXICOLOGY (10th ed.).
Medical Termination of Pregnancy Act, 1971, No. 34, Acts of Parliament, 1971.
Motia v. State of Rajasthan, AIR 1951 Raj 123.
Emperor v. Blanche Constant Cripps, AIR 1916 Bom 135.
Radha v. State of Rajasthan, (1973) Raj LW 684.
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Pain is an opinion on the organism’s state of health rather than a mere reflective response to an injury. There is no direct hotline from pain receptors to ‘pain centers’ in the brain. There is so much interaction between different brain centers, like those concerned with vision and touch, that even the mere visual appearance of an opening fist can actually feed all the way back into the patient’s motor and touch pathways, allowing him to feel the fist opening, thereby killing an illusory pain in a nonexistent hand.
Imagine that you are taking a really cold shower in the winter. If you are not used to cold showers, you will feel pain.
You will also feel pain if some shampoo gets to your eyes.
However, it’s important to distinguish between the two pains.
One is critical for me to save my eye. If I don’t wash off the corrosive element from my eye, it can damage the tissues in the sensitive organ and impair my ability to see.
On the other hand, cold showers improve my immunity, are refreshing and leads to secretion of lots of good hormones in the body just like a work out does. I have come to love cold showers and they are one reason I look forward to winters.
Pain is nature’s way of telling us to be careful, to investigate what is causing the pain.
However, the things that cause growth in us often require us to go through pain. Ability to handle pain is often the difference between an adult and a child.
Anyone who has worked out at the gym knows that unless you push your body beyond what is comfortable, there would be no benefits. No pain, no gain, is a saying that’s written on every gym wall, and there is a reason for that.
Most people stop the hard work when it pains.
The truly great realises that the real work has just began when pain began.
Here is what Muhammad Ali, the great boxer said:
“I don’t count my sit-ups; I only start counting when it starts hurting because they’re the only ones that count.”
What’s the equivalent of that in personal growth? What’s the equivalent in entrepreneurship or lawyering?
Do you say I don’t have time to learn more, do more or deliver more?
Do you say that your life is already too hard and you couldn’t make the tough choices any more?
Do you think you have already reached the limit of what is possible for you or what you will ever do?
Do you think you are in too much pain because life has been throwing shit at your lately?
Do you think you can’t do the right thing any more?
Welcome to the zone of pain, brother, because this is where the real work begins. What you did upto this point didn’t count, but what you do now will count.
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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 the procedure to be followed by the Court of Session in cases coming before it for trial.
Introduction
In India, we follow the adversarial system. It implies that the Judge acts as a neutral party and hears the prosecution and defence on the point of law without actually taking part in the proceeding. Under the Criminal Procedure Code, 1973 every individual has a right to fair trial and hearing by an independent and unbiased tribunal. Section 303 confers a right upon the accused to be defended by a lawyer of his choice. Under Section 304 where an accused person is unable to represent his case by a pleader, the Court shall appoint a pleader for him at the state’s expense. The accused is presumed to be innocent until proven guilty of the charges against him. Moreover, the accused has a right to cross-examine the witnesses of the prosecution. All offences under the Indian Penal Code, 1860 are inquired, investigated and tried according to the provisions of Criminal Procedure Code, 1973 except otherwise provided. The Code describes the procedure for the trial of a criminal case and its stages. In India, there is a uniform judicial system at the apex position being the Supreme Court, the High Court has the power of superintendence over all the courts and tribunal within the state. The CrPC divides criminal trial into sessions trial and magistrate trial. Whether an offence is triable by a Court of Session or Magistrate’s Court is specified under the First Schedule of the Code. When a District Court exercises its jurisdiction over criminal matters it is referred as a Court of Session. A Court of Session is considered as a court of first instance which deals with offences which are of a serious nature at a district level. It is the highest criminal court in a district. According to Section 9 of the CrPC, the State Government is empowered to establish a Court for every sessions division and every Court of Session is presided over by a Judge appointed by the High Court.
Scope of the topic
This topic mainly covers the procedure and the steps followed in trials where the case has come up before the Court of Session.
Initial steps in the trial
Initially, a Magistrate takes cognizance of an offence and thereafter as per Section 209, he will commit the case to the Court of Sessions. A Magistrate is empowered under Section 190 to take cognizance of an offence upon receiving a complaint; upon a police report; upon information received from a person other than a police officer; or upon his knowledge. According to Section 193, Court of Session cannot take cognizance of an offence directly but the Court of Session is permitted to take cognizance of an offence without a case being committed to it if the Magistrate commits the case to it or if it acts as a special Court.
Under Section 207 and Section 208 the Magistrate is required to supply copies of documents like First Information Report, the statement recorded by the police or Magistrate, etc to the accused. Under Section 209, if it appears to the magistrate that the offence is triable exclusively by the Court of Session, he may commit the case to the Court of Session and send all the documents and records to it and either grant bail or remand the accused into custody and shall also notify the Public Prosecutor. The procedure for trial before a Court of Session is mentioned from Section 225 to Section 237. As per Section 225, every trial before a Court of Session is conducted by a Public Prosecutor.
Opening case for prosecution
When the magistrate commits a case under Section 209 to the Court of Session and the accused appears or is brought before the Court, the prosecutor is required under Section 226 to open his case by explaining the charge against the accused and also states the evidence by which he will prove the guilt of the accused. At this stage, full details of the evidence need not be stated. The opening of the prosecution case must only be to matters which are necessary to follow the evidence. It is not necessary for a Public Prosecutor in opening the case for the prosecution to give full details of the evidence with which he intends to prove his case.
Discharge
The Court, on considering the documents and records of the case, and hearing the prosecution and the accused on the matter, shall discharge the accused if the Judge thinks that there is no sufficient ground to proceed against the accused. The Judge is required to record his reasons for discharging the accused under Section 227. It was held in State of Karnataka v. L. Muniswamy that the object of this Section is to require the Judge to give reasons for discharging the accused is to enable the superior court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground or not to proceed against the accused.
Framing of charge
Under Section 228, The Judge after considering the records of the case and the documents submitted along with it in evidence and hearing the prosecution and the defence, he thinks that there is a ground to presume that the accused has committed the offence and is exclusively triable by the Court of Session, he will frame a charge against the accused.
If the case is not exclusively triable by the Court of Session then the Judge may frame a charge against the accused and by order, transfer the case to the Chief Judicial Magistrate or any other Judicial Magistrate of First Class. He shall direct the accused to the Judicial Magistrate to whom the case has been transferred. The Magistrate shall then try the case in accordance with the procedure laid down for the trial of the warrant-cases instituted upon a police report.
If two views are possible regarding the guilt of the accused, then the one which is more favourable to the accused has to be taken.
It was held in Knati Bhadra Shah & anr v. State of West Bengal while exercising power under Section 228 CrPC, the Judge is not required to record his reasons for framing the charges against the accused.
While framing charges, only the prima facie case has to be seen. At this stage, the Judge is not required to record a detailed order necessary to see whether the case is beyond reasonable doubt as held by the Supreme Court in Bhawna Bai v. Ghanshyam & Ors.
In Rukmini Narvekar v. Vijaya Satardekar it was ruled by the Court that the accused cannot produce any evidence at the stage of framing of charge and only those materials can be taken into consideration which is specified in Section 227 at the time of framing charges.
Explaining the charge to the accused
Section 228(2) says that when a case is exclusively triable by the Court of Session and the Judge frames a charge against the accused he has to read and explain the charge and ask the accused if he wants to plead guilty or claims to be tried. The Judge shall ensure that the charge read and explained to the accused have been fully understood by him before he is asked to plead guilty. In Banwari v. State of UP, the Court held that default in reading out or explaining the charge to the accused would not vitiate the trial unless it has been shown that non-compliance with Section 228 has resulted in prejudice to the accused.
Conviction on plea of guilty
The accused may plead guilty under Section 229 or he can refuse to plead. The Court under Section 229 has the discretion to accept the plea of guilty. This discretion has to be applied with care and not arbitrarily. Also, the Judge has to ensure that the plea has been made voluntarily and not under any inducement otherwise it would be violative of the Provisions of the Constitution of India. It was held in Queen Empress v. Bhadu that the plea of guilty must be in unambiguous terms otherwise such a plea is considered as equivalent to a plea of not guilty. Section 229 states that if an accused pleads guilty then the Judge shall convict him as per his discretion and shall record the same. The Court cannot convict an accused on the basis of the plea of guilty where the offence is of a nature in which the punishment is death or imprisonment for life. In Hasaruddin Mohommad V Emperor, the Court held that it will be reluctant for the Court to convict a person accused of an offence in which the punishment is death or life imprisonment on the basis of his plea of guilty. The right of appeal of the accused is curtailed by Section 375 If the accused is convicted on the basis of his plea of guilty.
Date for prosecution evidence
Under Section 230, the Judge will fix a date for the examination of witnesses if the accused has refused to plead guilty or does not plead guilty, or if he claims to be tried or if he is not convicted under Section 229. On an application of the prosecution, the Judge will issue a process for compelling the attendance of witnesses or to produce any document or any other thing.
Evidence for prosecution
As provided by Section 273, all the evidence must be taken in the presence of the accused or in his absence in the presence of his pleader during the course of a trial or proceeding.
Examination of witnesses
When the date is so fixed (as mentioned under Section 230), The Judge will proceed to take all the evidence that may be produced by the prosecution in his support as per Section 231. The Judge has the discretion to permit cross-examination of any witness to be deferred until the other witness or witnesses have been examined or recall any witness for further cross-examination.
Section 137 of the Indian Evidence Act, 1872 (‘IEA’) states that the examination of a witness shall be done by the party who calls him (prosecution) and it shall be called examination-in-chief. The cross-examination of the witness is done by the adverse party (defence). The re-examination is done subsequent to cross-examination by the prosecution
Section 138 of the IEA, 1872 lays down the order of examination of the witnesses. It says that the witness should be first examined in chief and then cross-examined. The examination in chief is done by the party who calls the witness and cross-examination is done by the adverse party. If the party who called the witness so desires, can re-examine the witness with the permission of the Court.
The examination-in-chief and cross-examination should be connected to the relevant facts of the case. However, the cross-examination does not need to be restricted to the facts to which the witness has testified in examination-in-chief. The re-examination shall be related to the explanation of the matters referred to in the cross-examination. If any new matter has arisen in the re-examination, the defence may further cross-examine the witness upon that matter. The objective behind re-examination is to offer the witness a chance to clarify any issues raised during the cross-examination and is therefore constrained only to those issues that were raised during the cross-examination. In Ram Prasad v. State of UP it was held that, if the court finds that the prosecution had not examined witness for reasons not tenable or proper, the Court would be justified in drawing an inference adverse to the prosecution.
The Court observed in State of Kerala v. Rasheed that a balance must be struck between the rights of the accused and the prerogative of the prosecution to lead the evidence while deciding an application under Section 231(2). The following factors must be considered:
the possibility of undue influence,
threats,
that non-deferral would enable subsequent witnesses giving evidence on similar fact to tailor their testimony to circumvent the defence strategy,
of loss of memory of the witness whose examination-in-chief has been completed.
Record of the evidence
According to Section 276, the evidence of each witness in all trials before a Court of Session shall be written down by the Presiding Judge himself or under his dictation or under his direction and superintendence by the officer of the Court appointed by the Judge in this behalf. Such evidence is usually taken down in a narrative form. The presiding Judge may also write it down in question-answer form as per his discretion. The evidence so taken down must be signed by the Judge and form a part of the record.
It has been provided under Section 278(1) that when the evidence of each witness is complete, it shall be read over in the presence of the accused or in his absence in the presence of his pleader and shall if necessary be corrected. Also, as per Section 279 If any evidence is given in a language that the accused or his lawyer does not understand, it shall be interpreted to the accused or his lawyer in the language understood by him.
Steps to follow the prosecution evidence
For procuring the evidence of the prosecution the following steps have to be followed as mentioned below:
Oral arguments and memorandum of arguments on behalf of the prosecution
Under Section 314 the prosecutor has to submit his oral arguments after the conclusion of prosecution evidence and before any other steps in the proceedings are taken. It is also necessary to submit a memorandum, in brief, stating the arguments in his favour and a copy of that memorandum should be given to the opposite party. Adjournment for filing of written argument shall only be given if the court thinks it proper and record reasons for the same. The court will regulate an oral argument If it thinks it is irrelevant or not concise. The prosecution argument at this stage helps the court to conduct an examination of the opposite party and seeking his explanation on the issue raised by the prosecution.
Explanation of the accused
Under Section 313 the Court may examine the accused after the evidence for the prosecution has been taken. The object of this Section is to give an opportunity to the accused of explaining any circumstances that seem to appear against him. After the witness for the prosecution have been examined and before the accused is called upon for his defence, Section 313(1)(b) requires the court to question the accused person generally on the case for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him.
It was ruled by the Supreme Court in Shivaji Sahabrao Bobade v. State of Maharashtra, it is basic that the prisoner’s attention should be attracted to each inculpatory material in order to allow him to clarify.
It was held in Asraf Ali v. State of Assam that, if a matter is significant against the accused and the conviction is proposed to be founded on it is correct and legitimate then the accused be examined concerning the issue and be given a chance to clarify it.
Hearing the parties
Section 232 gives an opportunity to both the prosecution and defence to address the court before calling upon the accused to enter upon his defence and to adduce evidence in support of it. The comments of the parties should be related to the evidence given by the prosecution and the examination of the accused.
Order of the acquittal
An accused may be acquitted if there is no evidence against him that he has committed the offence. Under Section 232 the Judge will record an order of acquittal in favour of the accused if he thinks that there is no evidence against the accused that he has committed the offence.
As per Section 233 when the accused is not convicted under Section 232 he shall be called upon to produce evidence he may have in his support. If the accused desires he can give evidence in his defence in a written form and the Judge shall file it with the record. The steps to be followed for obtaining the evidence of the defence are discussed below.
Court witnesses, if any
As per Section 311, the Court can at any stage of any inquiry, trial or other proceedings, summon and examine any person as a court witness if his evidence appears to the court that it is essential for the just decision of the case.
Arguments
Under Section 234, the prosecution shall sum up his case and the accused or his pleader shall be entitled to reply, and if any point of law is raised by the accused or his pleader, the prosecution may with due permission of the Judge make his submission with regard to point of law. It is to be noted that Section 314 also talks about the arguments of the parties. However, Section 234 provides that after the evidence for the defence is concluded it is for the prosecution to sum up the case, and then the defence will be entitled to reply. Section 234 is a special one regarding argument whereas Section 314 is a general provision and therefore Section 234 would prevail over Section 314. The reason being it is a well-settled law that when there is any inconsistency between a general and a special law, the special one would prevail.
Judgment and connected matters
After hearing the arguments of the prosecution and defence the Court will give judgement in a case. It is the stage where the accused is either acquitted or convicted.
Judgment
As per Section 235, a Judge will pronounce a judgement of acquittal or conviction after hearing the arguments of both the parties i.e, the prosecution and defence and on point of law (if any). However, considering the character of the offender, the circumstances of the case and the nature of the offence, the Judge may as per Section 360 decide to release the offender on probation of good conduct. If the accused is acquitted, the acquittal will be done according to the procedure laid down under Section 232 and if he is convicted he shall be dealt according to Section 235.
In Narpal Singh v. State of Haryana it was held that, in case of non-compliance with this provision, the case may be remanded to the Sessions Judge for retrial on the question of sentence only. It is not necessary for the Judge to hold a new trial altogether it will be restricted to the question of sentence only.
Procedure to follow the order of conviction
After conviction, the Judge will hear the accused and then pass a sentence under Section 235. The Judge while passing a sentence shall try to gather all information that influences or relates to the sentence of the accused. The provisions of Section 235(2) are mandatory and should be complied with strictly as held by the Court. The purpose of Section 235 is to offer a chance to the accused to adduce evidence of any mitigating circumstances in his favour. The accused should be explicitly asked with respect to what he needs to state about his sentence and whether he wants to give any proof on his side in order to mitigate his sentence.
On this point, the Apex Court in Santa Singh v. State of Punjab held that the Judge should first pass a sentence of conviction or acquittal. If the accused is convicted he shall be heard on the question of sentence and only then the Court shall proceed to pass a sentence against him.
In Bacchan Singh v. State of Punjab, it was ruled by the Court that this Section provides for a bifurcated trial and specifically gives to the accused person a right of pre-sentence hearing which may not be strictly relevant to or connected with the particular crime under inquiry but may have a bearing on the choice of the sentence.
Procedure in case of previous conviction
Section 236 talks about previous convictions. It says that if an accused is charged with a convicted previously under Section 211(7) and he does not admit that he has been previously convicted with the alleged charge. The Judge after convicting the accused under Section 229 or Section 235 may call for evidence of the accused of such previous conviction and shall record findings, in case the accused is liable to enhanced punishment or punishment of a different kind. The proviso to this Section mentions that such charge shall not be read out by the Judge, nor shall the accused be asked to plead nor shall the prosecution refer to such previous conviction.
Section 236 provides for a special procedure for determining liability to enhanced punishment as a consequence of previous conviction. Also, prohibiting the proof of previous conviction to be given until and unless the accused is convicted, is to prevent the accused from being prejudiced at the trial.
Procedures in cases of defamation of high dignitaries and public servants
Under Section 199(2) the Court of Session may take cognizance of an offence, without the case being committed to it when any offence of defamation is committed against a person who is at that time, President of India, the Vice-President of India, Governor of a State, or any Public servant in the Union or State when a complaint is made to it by the Public Prosecutor in writing.
Section 237 requires the Court of Sessions to try the case in accordance with the procedure for trial of warrant-cases instituted otherwise than on a police report before a Magistrate Court when it takes cognizance of an offence under Section 199 (2).
The proviso to Section 237(1) says that a person shall be examined as a prosecution witness against whom the offence is alleged to have been committed unless the Court of Session otherwise directs. The Court has to record the reasons for it.
Each trial under Section 237 is to be conducted in camera if the Court thinks or if either of the party so desires. If the Court discharges or acquits all or any of the accused and the Court thinks that there is no reasonable cause of making an accusation against the accused or any of them. A show-cause notice for grant of compensation may be issued to those allegedly defamed.
The Court awards compensation to the accused or any of them up to one thousand rupees after considering the show cause and recording reasons for the same. The compensation awarded shall be recovered as if it were a fine imposed by the magistrate. A person who has been made liable to pay compensation shall not be exempted from any civil or criminal liability. If any sum has already been paid to the accused that sum shall be taken into consideration while paying compensation in any subsequent proceeding relating to the same matter.
The award of compensation does not apply to President, Vice-President, Governor of the State or Administrator of Union territory.
A person can also appeal to the High Court against the order of the Court under this Section.
Conclusion
The above article outlines all the procedures relating to the sessions trial. The Code of Criminal Procedure provides an opportunity for the accused for fair trial and makes an effort to avoid any delay in investigation or trial. The Judge in every case ensures that the accused is given a fair opportunity of hearing and defending his case. The Code also provides for legal aid to an indigent accused who is unable to engage a lawyer in compliance with the constitutional requirements and also as required by Section 304 so that any person accused of committing an offence is not wrongly convicted and justice is served.
References
RV Kelkar, Lectures on Criminal Procedure Code, Eastern Book Company, (6th ed. 2017).
Ratanlal & Dhirajlal, The Code of Criminal Procedure, Wadhwa & Company Nagpur, (17th ed. 2004).
The Code of Criminal Procedure, 1973, Act No. 22 of 2018, Act of Parliament, 1973 (India).
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Novelty is the statutory requirement that an invention is new. It refers to the newnessof the invention or the discovery of an unknown invention, which gives the inventor a competitive advantage over the other players in the market. For instance, a drug is patented by an XYZ firm, the patent holder is the only person who is entitled to make the product, use the process or exploit the invention. Only XYZ can market and sell the drug, and only they are entitled to profit from the same.
If there is no novelty in an invention, there is no consideration moving from the patentee and no benefit is given to the public, because it adds nothing to the sum of human knowledge already existing in the concerned field. As a result, the public is not benefited, if not, is it a detriment. Because, if something which is in the public domain and is freely accessible to everyone is suddenly patented, the rights of the public to use the invention are curtailed and the rights of the original inventors are also taken away.
In the Indian Patents Act, 1970, Section 2(1)(l) explains the scope of a new invention. It says that an invention can be termed as a new invention if it has not been anticipated by publication in India or abroad, before the filing of the patent application. It is the main test of Novelty of an invention, along with other factors such as prior publication, Prior Art, etc.
Specifically, Anticipation of Invention has not been defined in the Act. However, sections 29 to 34 provide a few situations in which inventions can be safeguarded from being called ” anticipated“. The objective of inserting such provisions in the act was to foster innovation in the industry and allow the patentee to benefit” monetarily” from his novel creation.
Concept of Anticipation and testing for It
Anticipation of invention is said to occur when the claim filed for a patent includes subject matter identical to any “prior art reference” i.e. the claim is not different from previously existing knowledge or a previously patented invention in the said field.
Anticipation is considered as a parameter for rejecting or invalidating a patent since it signifies that the invention that is claimed lacks novelty.
Testing for Anticipation is so similar to the process of testing for infringement of a Patent that it is sometimes said that whatever would literally infringe a claim if it came later in time, anticipates if it came before.
Firstly, one construes or interprets the claim to determine what exactly it means. After that, one compares the claim to the reference claim or patent. The claim serves as a checklist, and if every element of the claim matches the reference, the claim is said to be anticipated.
Anticipation requires that all the elements of the disputed or anticipated claim appear in a single reference. This is because, combining the teachings of one reference with the teachings of another reference might be sufficiently inventive to be considered to be a new patent.
Also, If the prior art reference considered is a patent or a printed publication, it is considered anticipating only if it teaches every element of the claimed invention. If a person having ordinary skill in the art (PHOSITA) reads these published elements and is able to fill in the gaps with his expertise, and as a result, is able to arrive at the “invention” which is to be patented by the new claim, the claim stands anticipated.
A particular claim’s element can be mentioned explicitly or implicitly in the reference. For example, a new claim to an inventive mousetrap requires a “flexible” spring, and a prior publication of a mousetrap design had a spring made up of steel of certain dimensions: the new claim can be said to be anticipated, as the previous claim had some of the inherent characteristics of the new claim.
Also, if a patent claims a broad genus, a reference patent that includes a single species of the genus will anticipate the claim. For example, a claim which specifies a fuel of a compound made of 10 to 50% methane. But there is a prior patent of a fuel which uses exactly 25% methane. The claim is anticipated because allowing the new patent would prevent the practice of that one fuel combination, which is already in use.
Assessment of Anticipation under Patents Act, 1970
India follows the principle of absolute novelty, the standard of which is set by both section 2(l) and Section 13 of the Act. According to Section 13, to qualify the test for absolute novelty, the Invention/claim must not be anticipated by:
Previous Publication in India and elsewhere (S. 13(a) and 13(2))
Prior Claiming in India (S.13 (1)(b).
The definition of Anticipation under the Indian Patent Act is negative.6 This is because the statute does not define Anticipation, but lays down exceptions to Anticipation of invention or a claim.
Section 34 of the Act, talks about the exceptions to anticipation if the circumstances are such as those given in sections 29 to 33 of the Act, which are as follows:
1. Section 29: Anticipation by Previous Publication
For a publication to classify as prior art, it should have been published as:
Any specification filed for obtaining a patent in India, on or after 1st January, 1912.
Published in India, elsewhere and also in other documents.
The earlier publication must disclose the same device as the device which the patentee asserts that he had invented. In such a case, the claim is deemed to be anticipated7.
The exceptions are as follows:
Applicant must prove that the publication of his matter was done without his consent;
Applicant must establish that he applied for the patent as soon as the prior publication came to his knowledge;
Also, if the invention was commercially worked in India, exception cannot be taken.
2. Section 30: Anticipation by previous communication to the Government
For the purposes of investigation, if the invention has been communicated to the government or any other person authorized by the government, then the complete specification filed shall not be deemed to have been anticipated.
3. Section 31: Anticipation by Public Display
If the invention has been displayed in an exhibition and/or the invention has been described in a publication as a consequence thereof;
It won’t be anticipation if the central government has extended the provisions of this act to such exhibition.
Also, if a person uses the invention without the consent of its true owner, as a consequence of the display in the exhibition, it won’t be Anticipation.
Disclosure of an invention before a learned society or the publishing of related information in the transactions of such learned society cannot be classified as anticipation.
This means that if the invention is disclosed for private consumption of a peer group, which is formed for the purpose of promotion of knowledge and scholarship, solely for the benefit of the members of the society, it is not anticipation.
A grace period is given to the original inventor to file an application within 12 months of the public display, to prevent labelling of his claim as an anticipated claim.
4. Section 32: Anticipation by Public Working
Anticipation by public working could be done by the importation of a patented product into India before the priority date the product would amount to public knowledge or public use, except where such importation was for the purpose of reasonable trial or experiment.
To benefit from this exception, the application must be filed within 12 months after the invention has been publicly worked for the purpose of reasonable trial and considering the nature of the invention.
5. Section 33: Anticipation by use and publication after provisional specification
If the invention has been put to use and has been published after the provisional application has been filed, then the complete specification filed shall not be deemed to have been anticipated.
Unless the Anticipation falls under aforementioned exceptions, the claims of specifications submitted to the controller can be rejected on the grounds of section 13 of the Act.
It is advisable for innovators to patent their inventions, as its benefits are manifold, such as creating reasonable barriers for entry of competitors, securing profits and prices in the market. Also, Patents ensure that small or medium-sized firms are on a level-playing field with large firms, due to the economic power granted by them. Thus, it is ideal that the inventor should file for obtaining a Patent before he makes any information about the Invention known to the public though any means, to avoid having any hassles due to anticipation of invention, during the patenting process.
Endnotes
Seymore S. B., (2011). Rethinking novelty in Patent Law. Duke Law Journal, 60 ( 4 ), 919-976.
Lallubhai Chakubhai Jariwala Vs Chimanlal Chunilal and Co. (AIR 1936 Bom 99, (1935) 37 BomLR 665)
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.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:
