This article is written by Pranjal Rathore studying in Maharashtra National Law University, Aurangabad pursuing B.A.LL.B.(Hons.). In this article, the author has tried to explain that in criminology how can the cases be disposed of even without a full trial.

Introduction

The Code of Criminal Procedure, 1973 is a procedural law giving the component which defines how the criminal trial is to be led based on substantive criminal law i.e., IPC (Indian Penal Code) and other criminal rules. The primary object of criminal equity framework is to guarantee that the trial must be reasonable. Ordinarily, when comprehension has been taken, the case continues, after a full trial, either brings about conviction or acquittance. Prior to that, the release of the charged can likewise be made in certain conditions as per Section 256 of the Code of Criminal Procedure in a summons case.

Scope of the chapter

It is an obligation of the official courtroom to lead a full-fledged trial of an accused delivered before it to find out whether the accused is innocent or guilty. Anyway, relying on nature of the supposed offence, in light of a legitimate concern for equity and furthermore relying upon the conditions prevailing in the criminal case to allow the accused for improvement or to keep away from maltreatment of law or to spare time or to maintain a strategic distance from an extended prosecution, court may clear or release the accused as per the law.

Criminal procedures banned by restriction of time

In the event that the accused raises the primer plea that the criminal procedures against him are banished by the constraint of time as endorsed under law at that point the procedures must be halted if the discernment was taken after the pass of restriction period as examined under Section 468 of the CrPC. 

Section 468: Bar to taking perception after slip by the time of restriction. 

1. Except as generally given somewhere else in this Code, no Court, will take awareness of an offence of the classification determined in sub-area (2), after the expiry of the time of confinement;
2. The time of confinement will be;

(a) Six months, if the offence is culpable with fine as it were; 

(b) One year, if the offense is culpable with detainment for a term not exceeding one year;

(c) Three years, if the offense is culpable with detainment for a term exceeding one year but not exceeding three years; 

(d) For the reasons for this section, the time of impediment, in connection to offences which might be attempted together, will be decided concerning the offense which is culpable with the more serious discipline or, all things considered, the most serious discipline.

Compounding of offenses

• Section 320(1) determines the offences, which can be aggravated without the authorization of the Court under Indian Penal Code;
• These offences, most of the times are of a minor nature viz. hurting religious sentiments- Section 298;
• Causing hurt- Section 323, Section 324;
• Improperly controlling or limiting any individual – Section 341 and Section 342, attack/assault or utilization of criminal power;
• Sections 352, 355 and 358 related to mischief. Sections 426 and 427 related to criminal trespass and house trespass;
• The criminal break of agreement of service- Section 491, Adultery;
• Section 497, tempting removing or confining with criminal purpose a married lady- Sections 498; 
• Maligning or defamation- Section 500, 501 and 502;
• Affront planned to incite or provoke breach of the peace – Section 504, criminal terrorizing aside from when the offence is punishable with detainment for 7 years;
• Section 506, act brought about by making an individual accept that he will be an object of awesome disappointment Section 508 of Indian Penal Code, 1860. Section 320(2) of the Criminal Procedure Code gives the table or list of offences, which can be intensified or compounded with the authorization of the court only. These offences are generally of a similar sort as portrayed in sub-section (1), yet in graver structure like causing grievous hurt by hazardous weapon- Section 324,325,335, causing hurt by rash and careless act- Sections 337 and 338;
• Illegitimately limiting an individual for more than 3 or 10 days or in a mysterious place- Section 343, 344 and 346, assault or criminal power to a lady with an aim to outrage her modesty; 
• Section 354, assault or criminal power in attempting unjustly to restrict an individual- 357, robbery- Section 379 and Section 381 untrustworthy misappropriation of property- Section 403;
• Criminal rupture or breach of trust- Section 406, 407 and 408, insincerely getting the stolen property or helping the transfer of the stolen property;
• Section 411 and 414, cheating- Sections 417, 418, 419, 420, 421, 422, 423 and 424, Mischief by murdering or disfiguring creature;
• Sections 428, 429 and 430, house trespass to drive an offence punishable with detainment;
• Section 451, utilization of counterfeited or falsified Trade Mark or property- Sections 482, 483 and 486;
• Bigamy-Section 495 of the Indian Penal Code, slander of an individual like the president, vice president and the governor and so forth;
• Section 500, changing words or making motions to affront modesty of a lady – Section 509 of the Indian Penal Code, 1860.

Withdrawal from prosecution

Object and purpose

Some unique laws which manage terrorist-related exercises like POTA (revoked), UAPA don’t, in essence, have appropriateness of Section 321 of the Cr.P.C. but the guideline of legal survey or judicial review still applies which is the fundamental point of Section 321 of the Cr.P.C. Along these lines, regardless of whether Section 321 doesn’t matter in its structure as recorded in Cr.P.C., the standard of the legal survey or judicial review is material in every single extraordinary law as to the intensity of court to give consent to the withdrawal application from prosecution documented by the public prosecutor.

Withdrawal by whom

As per Section 321, just the public prosecutor or the associate public investigator who is responsible for a specific case can apply for withdrawal from prosecution in a separate case. Likewise, a public prosecutor can’t have any significant bearing for withdrawal from prosecution if there should be an occurrence of the private complainant. In spite of the fact that the section gives no grounds on which withdrawal from prosecution can be recorded by the Public Prosecutor, the fundamental intrinsic condition read into the section by the Supreme Court is that withdrawal ought to be in light of a legitimate concern for the organization of equity. It is the obligation of the particular court, where the withdrawal application has been documented, to examine the explanations for the withdrawal and watch that withdrawal isn’t looked on reasons superfluous or against the enthusiasm of equity. Moreover, it is the obligation of the court to see that the public prosecutor really applies their free mind and not simply go about as insignificant mechanical operators of the State government.

The courts in different cases have troubled the public prosecutors with the tremendous duty to apply their own free mind and even conflict with the assessment of the State government if needed. Notwithstanding, the fact of the matter is tangled. The section conceives free use of the brain of the concerned public prosecutor without mediation from any legislature aside from when expressly required in law. Then again, the Supreme Court itself yielded to the point in Sheo Nandan Paswan v. State of Bihar that the Public Prosecutor is named by the State Government and appreciates office on the wish of government, hence, being more of a specialist of the administration than an independent official of the court. This perception of the Supreme Court is exceptionally near reality, in reality.

The courts have deciphered the whole circumstance as pursues: The State government can give guidelines or sentiments to the Public Prosecutor concerning the withdrawal of a case on the ground of approach, open equity, vexatious indictment, and so forth. Yet, the Public Prosecutor needs to apply his free mind to the proposal of State government and afterward may settle on reasons to either pull back from prosecution or proceed. On the off chance that he chooses to pull back or withdraw, at that point he should offer reasons to the court and demonstrate that he applied his free mind to the relevant case. Then again, on the off chance that he chooses to proceed with the indictment or prosecution, at that point he isn’t left with some other choice yet to resign from his post.

Along these lines, the part of free utilization of the brain by the public prosecutor on withdrawal from criminal prosecution is disagreeable and bristled with practical issues. The strict meaning that public prosecutor or the associate public prosecutor is answerable for drawing out the application for withdrawal from the prosecution, seems to be very inaccessible from the truth wherein the State government has indeed obtained a focal job in deciding the destiny of the withdrawal from prosecution process.

Withdrawal from prosecution of whom and in respect of which offence

Withdrawal from the prosecution of any individual either by and large or in regard of any at least one of the offences for which he is tried. Given that where such offence- 

1. Was against any law identifying with an issue to which the official power of the Union broadens, or
2. Was explored by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946, or
3. Included the misappropriation or decimation of, or harm to, any property related with the Central Government, or
4. Was submitted by an individual in the administration of the Central Government while acting or implying to act in the release of his official obligation, furthermore, the examiner accountable for the case has not been designated by the Central Government he will not, except if he has been allowed by the Central Government to do as such, move the Court for its consent to pull back from the prosecution and the Court will, before concurring assent, direct the prosecutor to create before it the authorization allowed by the Central Government to pull back from the prosecution.

Up to what stage of trail withdrawal is possible

Application for withdrawal from prosecution might be made at any time before the judgment is articulated. So the Public Prosecutor may record an application for withdrawal from prosecution whenever running between the Court taking cognizance of the case till such time the Court and things considered articulates the judgment. 

In Rajendra Jain Vs. State (1980)3 SCC 434 the Supreme Court has held that despite the way that offence is only triable by the Court of Session, the Court of Submitting Magistrate is skilful to offer consent to the Public Investigator to pull back from the prosecution. In the event that an individual has been indicted or prosecuted by trial Court and case is pending under the watchful eye of Appellate Court, at that point, at this stage the Public Prosecutor can not move an application under the watchful eye of Appellate Court for withdrawal from prosecution in light of the fact that under Section 321 of the Cr.P.C. ‘Court’ signifies Trial Court, not Appellate Court and furthermore indictment or prosecution is made under the watchful eye of a preliminary Court. Along these lines, the Public Prosecutor can not move an application for withdrawal from prosecution under the watchful eye of an Appellate Court.

Conditions precedent for withdrawal

Conditions precedent for withdrawal are as such;

1. If it is made, before a charge has been encircled, blamed or accused will be released in regard to such offence or offences;
2. On the off chance that it is made after a charge has been encircled, or when under this Code no charge is required he will be absolved in regard of such offence or offences.

Discretion of Public Prosecutor and of court in the matter of withdrawal

Discretion of Public Prosecutor

The public prosecutor is, under the section, supplied with liberated discretion in choosing what cases to be applied for withdrawal. In any case, such circumspection is not unreviewable and, as given in the section itself, is liable to the court’s supervisory capacity. On account of M.N. Sankarayarayanan Nair v P.V. Balakrishnan, the Supreme Court attempted to diagram the rule with respect to which the public prosecutor can practice their circumspection. The court saw that the carefulness is guided by the implicit necessity that the withdrawal ought to be in light of a legitimate concern for the organization of equity. Such may incorporate that prosecution can’t gather enough proof to continue charges on denounced or accused, or that withdrawal is essential for controlling lawful circumstances, or for the upkeep of open harmony and serenity and so on.

The Supreme Court in Rajender Kumar Jain v State saw that in situations while proceeding with prosecution causes or threatens/ frightens to cause savagery, mass fomentations, common brutality, student unrests and so forth, it is alright and in light of a legitimate concern for public for the public prosecutor to pull back from prosecution in such specific cases. The court additionally saw that when choosing going ahead with indictment or prosecution and pulling back from prosecution in cases that undermine the tranquillity of the public, the state government is directly pulling back from the prosecution. The court held that the smaller public enthusiasm for prosecuting the accused should be cast off for verifying bigger public enthusiasm for keeping up harmony and peacefulness in the public arena.

Discretion of court

In any summons case founded generally than upon grievance, a judge of the top of the line or a first-class judge, or some other legal officer with the past approval/ sanction of the Chief Judicial Magistrate, may stop the procedure at any stage without articulating any judgment. While halting the procedures the officer will record purposes behind doing as such, Section 258.

The position of the Public Prosecutor as regards the withdrawal from the Prosecution

The position of the public prosecutor is the most authenticated one as regards with the withdrawal from the prosecution.

Discretion of court in according consent

The Supreme Court in Rajender Kumar Jain v. State held that the articulation of judgment is sufficiently wide to remember for its domain of both the courts-Court of Committing Magistrate and that of Court of Session. In this manner, both the courts have the power to hear the application of withdrawal from prosecution from the public prosecutor. Section 321 doesn’t give any rules to be trailed by the court in deciding whether to offer consent to the withdrawal application or not. In this way, the court truly has liberated caution as respects to offering consent to the application for withdrawal from indictment or prosecution documented by the prosecutor accountable for case. Be that as it may, the Supreme Court has figured through different decisions, core values to be trailed by courts in offering consent to withdrawal application.

To start with, the court should give assent just when it is fulfilled that such award of authorization for withdrawal from prosecution would serve the interests of equity and would not undermine the standards which the official will undoubtedly maintain and pursue.

In Bansi Lal v. Chandan Lal, a criminal case was enlisted under different sections of IPC against the accused people. The case was focused on the Court of Sessions after the charges were confined. The Public Prosecutor at this stage recorded an application for withdrawal from prosecution on the ground that the prosecution wouldn’t like to deliver proof and proceed with the criminal procedures against the accused people. The court acknowledged the application. On modification, the High Court likewise maintained the preliminary court choice.

The Supreme Court on offer held that the preliminary court can’t precisely offer authorization to pull back from prosecution to the public prosecutor. The court needs to see that the grounds illustrated for withdrawal are entirely the interests of equity and public appeal. The court likewise needs to see whether the workplace of public prosecutor is abused by the official to satisfy the thin appeal spurred by legislative issues.

Second, the court while offering consent to withdrawal from indictment goes about like a boss and subsequently, by and large, the court ought not to re-value the grounds on which the open examiner chose to apply for withdrawal. The court, be that as it may, is compelled by a solemn obligation to look at whether the open examiner applied his free personality in choosing the issue. Consequently, it is the courts’ significant obligation to investigate each application for withdrawal from arraignment concerning the utilization of free personality by the open investigator accountable for the specific case.

In Sheonandan Paswan v State of Bihar, the Supreme Court held that the court hearing the application for withdrawal from prosecution goes about as a chief and in this manner need not go into the proof of the case concerned. The court ought not to be worried about what the outcome would be if all the proof is considered. All the court ought to be worried about is that in considering the material set before it, regardless of whether the public prosecutor applied his free mind and whether the thinking embraced by him experiences inalienable perversity which may prompt foul play.

Third, despite the way that court, for the most part, isn’t compelled by a sense of honour to investigate the grounds on-premise of which the public prosecutor in control recorded the application, the court may investigate the grounds to maintain the premiums of public when the thinking of the public prosecutor doesn’t finish the assessment of sensible man or such is unreasonable to the equity.

For example, in Abdul Karim v. State of Karnataka, when the assent of the court was looked for by the public prosecutor in control for withdrawal from prosecution against some famous lawbreakers, the Supreme Court didn’t permit such application. The Supreme Court saw that though the court is not required to analyze the grounds which guided the public prosecutor in control to apply for withdrawal from prosecution, the court will have freedom to reevaluate them if the thinking received by the public prosecutor appears to be unreasonable to the public equity or such is not in consonance with the sensible man standard.

Consequences of withdrawal from prosecution

Different court decisions, including from the Supreme Court, have held that considerably after a case has been pulled back by a state government and got the assent of the court concerned, it very well may be tested for a legal audit under Article 226 of the Constitution. Courts have additionally held that other than the person in question, even an outsider can mediate and challenge the withdrawal of the case since wrongdoing is submitted against the general public. Courts have held that each individual from the general public has the locus standi to contradict or challenge withdrawal in a criminal case, especially if there should arise an occurrence of debasement and criminal rupture of trust or cheating.

Locus Standi of a Complainant

Section 321 is silent on the locus of the person in question, the complainant or some other individual to restrict the use of withdrawal from prosecution recorded by the open examiner in control. In Sheonandan Paswan v State of Bihar, the litigant applied under the steady gaze of the preliminary court to start procedures under Section 302 of the IPC against the blamed or accused while simultaneously the investigator was applying for withdrawal from prosecution in a similar case. The court dismissed the use of the appealing party and allowed the authorization to the public prosecutor in control to pull back from prosecution. Something of the comparable nature additionally occurred in Subhash Chander v. State. For this situation, the private complainant restricted the application for withdrawal from prosecution, yet the application was allowed to be pulled back.

 The issue of the locus standi of the complainant or some other individual to contradict the withdrawal application has not been chosen by court decisively. In cases like State of Bihar v. Ram Naresh Pandey, Rajender Kumar Jain v. State, Sheonandan Paswan v. the State of Bihar and M.N. Sankaranarayanan v. P.V. Balakrishnan, the Supreme Court on the resistance raised by the complainant did hear the matter and chose yet held additionally such to be outside the locus standi of the complainant. Then again, different High courts like that of Kerala, Bombay and Nagpur have maintained the locus standi of private people or complainant to contradict the withdrawal application.

However, High courts arranged in Patna, Delhi and Calcutta have taken a unique view that private individual and complainant don’t have locus standi to restrict the withdrawal application. 

It becomes a tragedy of equity when a private individual who is, in fact, the casualty of the wrongdoing isn’t permitted to restrict the withdrawal application. The state has the power to prosecute the blamed or accused of benefit for the general public and unfortunate casualty however when the state doesn’t satisfy this commitment because of different reasons, the person in question or the individual from the network, against whom likewise the crime is submitted as he is additionally equivalent piece of society as the person in question, ought to have the locus standi to restrict the withdrawal application.

There are without a doubt a few cases which appear to be the right way. The Andhra Pradesh High Court in M. Balakrishna Reddy v. Principal Secretary to Govt. Home Deptt., held that an individual not being a victim of the wrongdoing is similarly supplied with the right to contradict the withdrawal application from prosecution just like the victim of the wrongdoing. Further, the court saw that the third individual is a piece of society against whom the wrongdoing has been committed and hence the person has locus standi to restrict the withdrawal application.

In V.S. Achuthanandan v. R. Balakrishna Pillai, the Supreme Court acknowledged the locus standi of the resistance head in restricting the withdrawal application from prosecution against a clergyman since nobody else was contradicting such application.

Along these lines, at present, the pattern is by all accounts more for the acknowledgement to the unfortunate victim and third party’s locus standi in contradicting the application for withdrawal from prosecution.

Withdrawal of complaint

Section 257 accommodates the withdrawal of the grievance or complaint with the assent of the Court whenever before the last order is passed. The section alludes to the withdrawal of protest just in summons cases. The section necessitates that the complainant should ask for the withdrawal of the complaint fulfilling the Court that there is a legitimate justification for the withdrawal of the protest. The Magistrate at his prudence may permit withdrawal of the grievance and from there on request vindication of the charged. The withdrawal of a protest by the complainant suo moto under this section and withdrawal by him with the assent of the denounced by bargaining under Section 320 (exacerbating of offences) are two distinct things and should be separated. The differentiation between the withdrawal of a protest and exacerbating of an offence is noted underneath: 

1. A complaint might be pulled back under Section 257 in regard of all offences which are triable as summons case, yet right to compound reaches out to just certain particular offences referenced in Section 320 of the Code.
2. If there should arise an occurrence of withdrawal of a complaint, authorization of the Court is fundamental in all cases, yet under Section 320, there are a few offences which are compoundable even without the consent of the Court.
3. The withdrawal of a complaint doesn’t ipso facto result in the vindication of the accused except if Court passes an order for absolution. In any case, aggravating under Section 320 independent from anyone else results into acquittance of the charged.
4. The privilege to pull back the complaint under Section 257 stretches out, just to bring cases, however, the privilege to exacerbate an offence reaches out to both, summons just as warrant cases which are determined in Section 320 of the Code.
5. Compounding fundamentally suggests assent of the blamed, yet no such assent is essential for the withdrawal of the complaint by the complainant under Section 257.

In Thathapadi Venkata Laxmi v. Territory of Andhra Pradesh, the spouse lodged a report against her husband in police headquarters. The Police took comprehension of the offence and recorded charge-sheet against the denounced (spouse) before the Magistrate. Held, that the spouse was not qualified for withdrawal of the argument against her significant other as she was not a complainant for this situation.

Power of the court to stop proceedings

In any summons-case initiated generally than upon grumbling, a Magistrate of the first class or, with the previous approval of the Chief Judicial Magistrate, some other Judicial Magistrate, may, for reasons to be recorded by him, stop the procedure at any phase without articulating any judgment and where such stoppage of procedures is made after the proof of the chief observers has been recorded, articulate a judgment of vindication, and in some other case discharge, denounced, and such discharge will have the impact of release.

Absence or non-appearance of the complainant

There are different consequences of absence or non-appearance of the complainant in both warrant case and summons case.

Warrant cases

According to Section 249, in a warrant case which is organized upon a grievance or complaint, and quickly fixed for becoming aware of the case, if the complainant is missing and the offence may be legitimately aggravated or is certifiably not a cognizable offence, the justice may in his tact whenever before the charge has been surrounded, can release the blamed or accused.

Summons cases

In a summons case which is initiated upon a grievance or complaint, if the complainant doesn’t show up on any day fixed for becoming aware of the case or any ensuing day, at that point the officer has wide watchfulness either to absolve the blamed or dismiss the meeting for the case or may forgo the participation of the complainant and continue with the case.

Abatement of proceedings on death of the accused

A definitive object of the criminal procedures is to rebuff the denounced on his conviction of any offence. Consequently, the criminal procedures lessen on the demise of the blamed or accused, as their continuation from that point will be infructuous, also unimportant. This position acting naturally clear the Code has not made any explicit arrangement in such manner.

Conditional pardon to an accomplice

The criminal procedures against an accused individual reach a conclusion if he is given exculpation as per the arrangements of Section 306 and Section 307.

Section 306. Delicate of absolution to associate.

1. With a view to getting the proof of any individual expected to have been legitimately or in a roundabout way worried in or aware of an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any phase of the examination or investigation into, or the preliminary of the offence, the Magistrate of the first class asking into or attempting the offence, at any phase of the request, or preliminary, may delicate an acquittal to such individual on state of his creation a full and genuine exposure of the entire of the conditions inside his insight comparative with the offence and to each other individual concerned, regardless of whether as head or abettor, in the commission thereof.
2. This area applies to; 
   1. Any offence triable solely by the Court of Session or by the Court of Special Judge designated under the Criminal Law Amendment Act, 1952.
   2. Any offence, punishable with detainment which may reach out to seven or with an increasingly extreme sentence.
3. Every Magistrate who tenders an acquittal under subsection (1) will record;
   1.  His purposes behind so doing;
   2. Regardless of whether the delicate was or was not acknowledged by the individual to whom it was made, and will, on the application made by the denounced, outfit him with a duplicate of such record free of cost.
4. Every individual tolerating a delicate of exculpation made under sub-section (1);
   1. Will be inspected as an observer in the Court of the Magistrate taking awareness of the offence and in the resulting trial, assuming any;
   2. Will, except if he is now on bail, be confined in authority until the end of the trial. 
5. Where an individual has acknowledged a delicate of exoneration made under sub-section (1) and has been analysed under sub-section (4), the Magistrate taking awareness of the offence will, without making any further request in the case;
   1. Submit it for trial;
      1. To the Court of Session if the offence is triable only by that Court or if the Magistrate taking perception is the Chief Judicial Officer;
      2. To a Court of Special Judge selected under the Criminal Law Correction Act 1952, if the offence is triable only by that Court;
   2. In some other cases, put forth over the defence to the Chief Judicial Magistrate who will attempt the case himself.

Section 307 Capacity to coordinate delicate of exoneration

Whenever after duty of a case yet before judgment is passed, the Court to which the dedication is made may, with the end goal of getting at the trial, the proof of any individual expected to have been legitimately or by implication worried in, or conscious of, any such offence, delicate an exoneration on the equivalent condition to such individual.

Trial of persons not complying with the conditions of pardon

Section 308 accommodates the trial of an individual who had acknowledged a tender of acquittal or pardon yet on the off chance that the Public Prosecutor guarantees that such an individual is either adamantly disguising anything basic or giving bogus proof, at that point, such an individual might be gone after for the offence in regard of which the exculpation was offered. In this manner so as to indict or prosecute the approver who has neglected to conform to the state of tender of pardon, a testament from the Public Prosecutor is an important recondition. The onus lies on the prosecution to demonstrate that the approver has unyieldingly covered anything fundamental or has given bogus proof and, in this way, rendered himself obligated for relinquishment of his acquittal.

The third-party can oppose withdrawal

Any private individual can restrict the application for withdrawal from prosecution and it can’t be limited on grounds of locus standi. In the case of Sheo Nandan Paswan Vs. The State of Bihar (1987) 1 SCC 288, the Supreme Court has held that since a resident can hold up an FIR or record a grievance or complaint and set apparatus of Criminal law moving, any part of society must have locus standi to contradict withdrawal. Especially the offences of defilement and criminal break of trust, being offences against society, any resident, who is keen on the tidiness of organization is qualified for contradicting application for withdrawal of prosecution.

Withdrawal from prosecution law is misused in India

Section 321 of CrPC 1973, manages the intensity of Public Prosecutor/Assistant Public Prosecutor to pull back an instance of which he is in control in the wake of getting composed authorization from the state government and that consent is required to be recorded in Court. The intensity of withdrawal can be conjured by the Public Prosecutor/Assistant Public Prosecutor, in light of a legitimate concern for open strategy and equity and not to disappoint or throttle the procedure of law. The power under this section is again in the news, with legislatures of UP and Haryana as of late attempting to recognize a few cases to be pulled back with an aim to make some political increases.

In Ranjana Agnihotri’s (2013 (11) ADJ 22) case, a full seat of Allahabad High Court considered four inquiries identifying with the translation of Section 321 of Cr. P. C., alluded to it. Incompatibility of directions given by the State Government, the Public Prosecutors, accountable for those cases, moved applications for withdrawal from the prosecution of the charged in the said cases.

The applicants favoured Writ Petition No. 4683 (MB-PIL) of 2013, along these lines testing vires of Section 321 of the Code of Criminal Procedure 1973 just as the directions given by the State Government to the Public Prosecutors for withdrawal from the prosecution.

The inquiries, along these lines confined by the Division Bench, were:

1. Regardless of whether the State Government can give Government Order for withdrawal of cases without there being any solicitation by the open investigator accountable for the case?
2. Regardless of whether the indictment or prosecution can be pulled back without appointing any explanation concerning why the arraignment was looked to be pulled back and is thus illegal and violative of Article 14 of the Constitution of India?
3. Regardless of whether the indictment of offence identifying with Central Act be pulled back without taking consent from the Central Government?
4. Regardless of whether the State Government in the wake of giving approval for arraignment, audit its own request by giving requests for withdrawal of the cases?”

Prior to leaving behind the case, the full seat alluded the accompanying perception of Godwin in his book, “Political Justice” while valuing the popularity based procedure in administration. The full seat responded to the four inquiries encircled by the Referral Court (Division Bench) as under:

1. The Government can give a request or guidance for withdrawal from prosecution without there being demand from the Public Prosecutor accountable for the case, subject to the rider that the Public Prosecutor will apply his/her autonomous personality and record fulfilment before moving an application for withdrawal from prosecution.
2. The prosecution can’t be pulled back without allotting reason, might be definitely. In the event that an application is moved for withdrawal from prosecution for a situation identifying with fear-based oppression and pursuing of war against the nation, exceptional and explicit explanation must be allocated keeping in see the dialogue, made in the collection of the judgment.
3. Prosecution under Central Act was concerning the offences, the official intensity of the Union expands, the prosecution can’t be pulled back without authorization of the Central Government. For offences under Unlawful Activities (Prevention) Act, 1967, Explosive Substances Act, 1908 and Arms Act, 1959 and so forth and the offences falling in Chapter VI of Indian Penal Code or the same offences the official intensity of the Union of India broadens, consequently authorization from the Central Government as to withdrawal of indictment under Section 321 Cr. P. C. will be vital. 
4. State Government has got capacity to give guidance or pass request considerably after authorization for prosecution has been given in a pending criminal case, subject to the condition that the Prosecuting Officer needs to take free choice with due fulfilment as per law all alone, before moving the application for withdrawal from prosecution in the preliminary court.

From there on another full seat was comprised to consider the forces of government exercisable under Section 321 of Cr. P. C., the full seat should think about after three inquiries:

1. Regardless of whether the intensity of withdrawal can be practised by State Government under Section 321 of Code of Criminal Procedure in an unconventional or subjective way or it is required to be practised for the contemplations, simply, legitimate and judicially reasonable?
2. Regardless of whether choice taken by State Government for withdrawal of cases conveyed to Public Prosecutor with heading to continue ahead is available to legal survey or not in a writ ward under Article 226 of the Constitution of India?
3. Regardless of whether State Government ought not to be required to take the examination of different criminal cases pending in Subordinate Courts to see whether they merit withdrawal in the exercise of forces under Section 321 Cr.PC. independent of truth that accused or any other individual has moved toward the administration for this reason or not?

This full seat answered the above-alluded inquiries in the accompanying terms in its judgment dated twentieth February 2017;

1. The State Government isn’t at all allowed to practice its power under Section 321 Cr.PC in the unconventional or subjective way or for superfluous contemplations separated from just and legitimate reasons.
2. The choice taken by the State Government for withdrawal of the case imparted to the Public Prosecutor is available to legal survey under Article 226 of the Constitution of India on indistinguishable parameters from are recommended for conjuring the authority of legal audit.
3. The State Government is allowed to act under the parameters accommodated to make the examination of criminal cases pending in subordinate courts to discover concerning whether they merit withdrawal under Section 321 Cr.PC. or on the other hand not all things considered in the domain of the strategy choice, and approach the said score must be taken by the State Government and same must be founded on the parameters required to be watched while moving an application for withdrawal of prosecution under Section 321 Cr.PC.

Conclusion

Withdrawal from prosecution is a significant part of the criminal method in India. The Public Prosecutor or the Assistant Public Prosecutor who is considered as officials of the court and furthermore as the specialists or agents of the state government assume a key job in deciding withdrawal from the arraignment. The parallel pretended by the Public Prosecutor has, in reality, become the wellspring of the issue in releasing this capacity since the Public investigator is relied upon to satisfy the requests of both the particular mainstays of majority rules system with full confidence which appears to be a long way from the real world. The Public Prosecutor, on the one hand, is required to support the court, as an official of the court, in carrying the truth to the fore and then again, as the operator of the administration, expected by the legislature to speak to the case for its approach. In this manner, the carefulness offered by the Section 321 onto the Public investigators or the Assistant Public Prosecutors appear to be established not in them, however in the State governments in light of the fact that as perceived by the Supreme Court itself in Sheonand Paswan case that disregarding Public examiner being an official of the court, he additionally shares a relationship of specialist head with the state government and accordingly, he is required to pursue the assessment of the state government or leave.

Subsequently, the coming full circle impact of this is the open investigators by and large give up this optional powers before the state government for their activity and in this way, at last, taking a chance with the open equity. In any case, there is a shield however powerless which gives the rules on-premise of which the open examiner can look for withdrawal from prosecution. The basic condition being that such withdrawal should prompt help of bigger enthusiasm for open equity. The section has likewise given more grounded support against this previously mentioned stun to the equity conveyance framework. This cushion is the necessity of assent of the court. the courts’ assent is required before a case might be pulled back from the prosecution.

Generally speaking, the section suffers from illness because of the absence of clearness as respects to the degree of the watchfulness of the public prosecutor which lands the person in question in the dubious situation wherein he needs to either pick his activity or equity and, unfortunately, favoured alternative remains the activity. The prudence of public prosecutor must be characterized unmistakably with the goal that he can practice his attentiveness true to form in the law for the advancement of equity.

References

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

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

The post Disposal of Criminal Cases Without Full Trial Under CrPC appeared first on iPleaders.

This article is written by Nishtha Pandey (batch 2023), student of Dr. Ram Manohar Lohiya National Law University, Lucknow. This article seeks to explain various Constitutional and Statutory provisions relating to Execution, suspension, remission and commutation of sentences.

Introduction

In the country, there are various constitutional and statutory provisions which suspend, remit or commute sentences, given to the convict. Under the Indian Constitution, 1950, Article 72 and Article 161 empower the Governor and the President to grant pardon, suspend, remit or commute the sentence. Meanwhile in the Criminal Procedural Code, 1973, there is a whole Chapter XXXII dedicated to the suspension, remission and commutation of sentence.

Object and scope of the topic

The power to remit, suspend or commutate a sentence is exercised by the head of the state. The executive can show mercy on the convict by way of remission, suspension or commutation etc. The basic purpose of the suspension, remission, commutation and other forms of showing mercy, is to take into consideration certain aspects of the case which do not arise during the proceedings in the court of law. Just like the other Chapters of CrPC, this is applicable to the whole of India.

Execution of sentence of death

Execution of order passed under Section 368

Under Section 366 of the CrPC,1973, a session judge cannot execute a death sentence without the confirmation of the High Court, till that time the convict has to be in jail custody. The High Court, under Section 368 of the CrPC, looks into the case. The High Court can:

• Confirm the sentence given by the Session Court.
• Annul the conviction and convict the accused of the same charges as that of the Session Court or may order for fresh proceedings on the same or altered charges.
• May acquit the person, as the time for the appeal has not lapsed yet or the appeal has been disposed of.

Any order received by the Session Court from the High Court has to be executed by the Session Court by way of issuance of a warrant. (Section 413 of the CrPC). 

Execution of sentence of death passed by High court

Under Section 414 of the CrPC, if the High Court, passes the order of death sentence in appeal or revision, the Session Court has to carry on the order by issuing a warrant.

Duty of the jail superintendent in certain cases

When the High Court certifies to the Sessions Judge, any information regarding the confirmation, annulment of charges of the accused in the case that was sent by way of an appeal or revision, the Session judge will send a warrant to the Superintendent of Jail of which the prisoner was originally committed. If the prisoner is transferred to another jail, then, in that case, the Superintendent of Jail has to send back the warrant to the Sessions Judges who in turn will give the warrant to the Superintendent of the Jail in which the prisoner is transferred.

In case of alteration of the charges by the appellate courts by way of an appeal or revision, the same would be informed to the Superintendent of Jail to which the prisoner is committed. Even in the case of immediate release of the prisoner from the jail, the Sessions Judge by way of a warrant would inform the Superintendent of the Jail. the superintendent after such execution will give the original warrant, duly filled to the district magistrate in which the trial was held.

Postponement of execution of death sentence

In case of appeal to the Supreme Court

Under Section 415 of the CrPC, 1973, the High Court may order for the postponement of the execution of death sentence, if the case has been sent to the Supreme Court for appeal (Article 134 of the Indian Constitution). The postponement would be until the time for preferring such appeal has been lapsed or the appeal has been disposed of, altogether.

If the death sentence has been confirmed by the High Court, the person so sentenced may ask the High Court, by way of an application for the grant of a certificate under article 134 or 132 of the Indian Constitution. The High Court has to postpone the execution of the death sentence until such demand is disposed of by the High Court or such certificate of appeal has been granted before the time of considering such appeal by the Supreme Court has not lapsed.

When the death sentence has been confirmed by the High Court, but the High Court is satisfied that the person so sentenced intends to file a Special Leave Petition to the Supreme Court under Article 136 of the Indian Constitution. The High Court will order the postponement of the execution of the death sentence till the time which is reasonable for the person who is sentenced, to file such appeal in the Supreme Court.

Postponement of capital sentence on a pregnant woman

Under Section 416 of the CrPC, if the woman who is sentenced is found to be pregnant, then the High Court, in that case, can postpone the sentence or if it deems fit, the High Court can also commute the sentence to life imprisonment. 

Place of imprisonment

The State Government unless provided has the power to direct the place of imprisonment for any person who is convicted under CrPC.

Moreover, if the person who is convicted under the provisions of CrPC, is confined in the civil jail, then the magistrate of the court shall order that the person so convicted, should be shifted to a criminal jail. However, if the person who was transferred to the criminal jail from the civil jail, will be sent back to the civil jail unless-

• Three years have lapsed, the person, in this case, shall be released under Section 58 of the CPC, 1908 or Section 23 of the Provincial Insolvency Code.
• The which ordered the imprisonment of the person in the civil jail orders the officer in charge to release of the convicted person under Section 58 of CPC or Section 23 of the Provincial Insolvency Code.

Execution of sentences of imprisonment

Under Section 418 of the CrPC, a person who is imprisoned for life or for terms other than those mentioned in Section 413 of the CrPC, the court passing such sentence has to give a warrant to the place where the person has to be confined unless such person is confined to such place. However it must be the person who is imprisoned till the court is rising, then there is no need to forward a warrant to the jail and the person shall be confined as per the direction of the court.

Under Section 418(2) of the CrPC, if the accused is not present in the court at the time when he is sentenced to such imprisonment, then, in that case, the court has to order for the arrest of that person, by way of an arrest warrant, for forwarding him to jail or any other place where he shall be confined and the sentence will start from the time of arrest of the accused.

In the case of Ishwarbhai Hirabhai Churana vs the State of Gujrat, this Section is held to be mandatory. Moreover, under this Section, the court also owes a duty to ensure that the sentence is executed, otherwise, the accused may avoid it.

The warrant issued is non – bailable, as it empowers the authority to arrest the person, after the issuance of this warrant. Such a warrant is necessary in case the sentence was pronounced in the absence of the accused. 

A warrant for the execution of sentence of imprisonment

Under Section 419 of the CrPC, the warrants for the execution of the sentence of imprisonment has to be directed to the in-charge of the jail or of any place in which the accused is to be confined. But if the person is to be confined in the jail, then the warrant needs to be given to the jailor.

Execution of the sentence of fine

A warrant for the levy of fine

When the court sentences to levy the fine on the offender, it can recover it through either or both of these methods

• Issue of warrant for the levy of amount through the attachment of the movable property of the offender.
• Issue of a warrant to the district collector and order him to collect it as an arrear of land revenue accruing from a movable or immovable property or both. The collector, in this case, shall collect the arrears of revenue as per the prevailing laws with respect to the collection of revenue in the country. The warrant here will only serve the purpose of a certificate.

It is important to note that in case it is mentioned that there shall be imprisonment if default of payment happens, and if the offender has already served the default sentence, then no court shall issue such warrant, unless there are some special circumstances which have to be recorded in writing, or if there is an order for the payment of compensation of fine that arose as per the provisions of Section 357.

The state government can make rules in regards to how the execution of the recovery of the fines would take place and the summary claims made by a person other than the offender himself would be considered accordingly.

No such warrant shall be executed by the arrest or detention of the person in the prison.

Effect of such warrant

The court shall order the attachment of property for the recovery of fines within the local limits of its jurisdiction, however, it could order such attachment outside its jurisdiction too if it is endorsed by the District Magistrate of the area in which the property to be attached is present.

A warrant for the levy of fine issued by a court in any territory to which this Code does not extend

If the offender has been sentenced to pay the fine in the territory where this code does not apply, then the court would issue a warrant to the District Collector of the area where the code applies and order him to collect the fine by way of arrears of revenue. This warrant shall be treated as if it is issued under Section 421 of the Code and all the conditions would apply accordingly.

Suspension of execution of the sentence of imprisonment in default of payment of fine

When the offender has been sentenced to fine only and in case of default of payment he shall be imprisoned, and if the fine is not paid then:

• The order that the fine shall be made in full within 30 days of such order or in instalments in which the first instalments shall be made within 30 days of such order and the next instalments within the intervals of not more than 30 days.
• The court may order the suspension of imprisonment order, if the offender gives a bond with sureties or not, depending upon the court, for the payment of the fine in full or in instalments. If the offender fails to furnish the fine at the latest date on which such instalments has to be made, then the court shall order the execution of the imprisonment order.
• This shall also apply in the case where the order for the payment of money has been made for the non- recovery of which imprisonment may be made. And if the person fails to furnish a bond for the payment of the fine, the court may order the execution of the imprisonment immediately

General provisions regarding the execution

Who may issue a warrant?

Under Section 425, every warrant which is issued for execution is to be given by the Magistrate or the Judge or Magistrate who passed the sentence or by their successor in-charge.

The sentence on an escaped convict

If a sentence of death, life imprisonment or fine is passed under the provisions of this code, on an escaped convict, then the execution of such sentence should take effect immediately.

When the sentence is passed on the escaped convict then:

• When this sentence is more severe than the previous sentence from which the convict escaped, then the sentence shall take place immediately.
• If the present sentence is less severe than the sentence from which the convict escape then the accused has to serve the term which is remaining of the sentence he escaped from.
• The sentence of rigorous imprisonment will be more severe than the imprisonment of the simple nature. 

The sentence on offender already sentenced for another offence

If a person has been previously convicted for a sentence and then is subsequently convicted for another, then the person has to serve his former punishment first and then will serve the punishment sentenced later. Or if the court orders that both the punishment are to be served concurrently. The punishment could be imprisonment or imprisonment for life. It is also to be noted that where a person who has been sentenced to imprisonment by an order under Section 122 in default of furnishing security is while undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.

However, if a person is already sentenced to life imprisonment and then subsequently is punished for a term or for life imprisonment, then the former sentence would run concurrent to the latest imprisonment.

Period of detention undergone by the accused against the sentence of imprisonment

Where an accused is serving a sentence, other than the one on the default of payment of fine, and the term of detention undergone by him during the investigation and trial of the same case shall be set off against the term imposed on him from such conviction. The person shall be liable only for the term of imprisonment left if in case the sentence of imprisonment is given to him.

In case of a sentence given under Section 433A, such period of detention shall be set off against fourteen years referred to in that Section.

But nothing in Section 426 and Section 427 shall be the reason to excuse any person from the term he is sentenced to in his former or subsequent conviction.

When an award of imprisonment in default of payment of a fine is added to a substantive sentence of imprisonment and the person undergoing the sentence is after its execution to undergo a further substantive sentence or substantive sentences of imprisonment. In this case, the sentence accruing to the default of payment of fine should be served by the person only after he has undergone the subsequent sentences.

Return of warrant on execution of sentence

When the sentence has been executed fully, the officer executing such a sentence will have to return the warrant to the court which has issued it. The warrant that is returned has to be undersigned by the respective officer. The method of execution of the sentence must also be specified by the officer in charge.

Money ordered to be paid recoverable as a fine

Any money which is payable (other than fine) under the provision of this act, and the method of recovery of such money is not expressly given in the Code, then it shall be collected in the manner as if it is fine. 

It is to be noted that Section 421 shall, in its application to an order under Section 359, by virtue of this Section, be construed as if in the proviso to Sub-Section (1) of Section 421, after the words and figures “under Section 357”, the words and figures “or an order for payment of costs under Section 359” had been inserted.

Suspension and remission of sentences

Constitutional provisions

The Constitution of India, vests a large amount of sovereign power in the President and the Governor. Centre and the State are governed in the name of President and Governor respectively. Under Article 72 of the Indian Constitution, the President has the power to pardon, remit, suspend or commute any sentence.

Under Article 72, the President has the power to pardons, reprieves, respites or remission of punishment or to suspend remit or commute the sentence of any person convicted of any offence: 

• In cases where the punishment is given by the court-martial. The Governor’s power to remit, suspend or commute the sentence under the laws of the State, shall be given precedence.
• In cases where the power of executive extends.
• In cases where the punishment is a death sentence.

Similarly, under Article 161 of the Constitution of India, these powers are conferred on the Governor of the States. The Governor can pardon, reprieve, respite a punishment or suspend, remit or commute the sentence, which is given on the basis of the laws prevalent in the State, to which the executive power of the State extends. 

The difference between the pardoning power of the President and that of the Governor is that the Governor does not enjoy the power to grant pardon to a death sentence.

However, this power of the President is not absolute and depends on the consultation with the council of ministers. This is not present in the Constitution but practically this process is followed. Further, the Constitution does not provide for any mechanism to check the legality of the decision taken by the President and the Governor while exercising their mercy power. However, in the case of Epuru Sudhakar vs the State of Andhra Pradesh, a small leeway is provided for judicial review of the mercy granting power of the President and the Governor to rule out any sort of arbitrariness.

Suspension or remission of sentences

The suspension is the stay or postponement of the execution of the sentence. In remission, the duration of the sentence is reduced, without changing the nature of the sentence. Remission and suspension differ to a large extent. In remission, the nature of the sentence is remained untouched, while the duration is reduced i.e. the rest of the sentence need not be undergone. For example, a person sentenced for a term of two years, his sentence is now reduced to one year. The effect of the remission is that the prisoner is given a certain date on which he shall be released and the eyes of the law he would be a free man. However, in case of breach of any of the condition of remission, it will be cancelled and the offender has to serve the entire term for which he was originally sentenced.

The procedure followed is given under Section 432 of CrPC, 1973. The government would ask the opinion of the court which gave such a sentence. The court would revert with proper records. The government can grant or reject the application for remission and suspension if in its view all the conditions necessary for such a grant are not fulfilled. the offender may if at large, be arrested by any police officer without a warrant and is to undergo the unexpired portion of the sentence. The power of remission is wholly an executive action. There is no law as such to question the legality of this action, but the government should use this power fairly and not in an arbitrary manner. However, the court must consider the limitation provided under Section 433A of the CrPC, 1973. The power of remission and suspension should not in any way interfere with the conviction of the court, it should affect the execution of the sentence. 

Commutation of sentence

In contrast to Suspension and Remission, which only affect the duration of the punishment without interfering with the nature of the punishment, Commutation, on the other hand, changes the nature of the punishment and converts it into a less severe form of punishment.

There is nothing to restrict the government to commutate a sentence, even if it is as low as a fine. Under Section 433 of the CrPC, the appropriate government gets the power to commutate the sentence in an appropriate case. Various sentences are eligible for commutation, one of them is death sentence i.e.mercy plea. 

• Death sentence to any other punishment provided in the IPC.
• Imprisonment for life to any other imprisonment not exceeding fourteen years or fine.
• Sentence of rigorous imprisonment for simpler imprisonment which the person has been sentenced or a fine.
• Sentence for a simple sentence to a fine.

Commutation of death sentence has always been in the controversy, it raises an issue regarding the basic human rights of the accused and on the other hand the impact of the grave crime on the society. Section 433 of the CrPC gives the power to the government to commutate the death sentence to a simpler sentence.

Most of the convicts of the death sentence, get their sentence reduced to 14 years of life imprisonment in accordance with the provisions of CrPC. 

Restriction on powers of remission or commutation in certain cases

Section 433A of the CrPC puts a restriction on the power of the President and the Governor that they can’t commutate the death sentence to less than 14 years of life imprisonment. In absence of any order under Section 51 of the IPC or Section 433A of the CrPC, the convicts are not released even after the expiry of 14 years of imprisonment.

Moreover, remission can be granted under Section 432 of the CrPC in case of a definite term of sentence. The power is to grant “additional” term of imprisonment which is over and above the remission granted to convict under the jail manual or statutory rules. In case of an indefinite sentence, like that of life imprisonment, may remit or suspend the sentence of the person but not on the basis that such imprisonment is arbitrary or on the assumption that it is for twenty years.

Concurrent power of the Central Government in case of death sentences

Under Section 434 of the CrPC, it is stated that the powers under Section 432 and Section 433, which are given to the State government, can be exercised by the Central government in case of a death sentence.

State government to act after consultation with the Central Government in certain cases

Under Section 435 of the CrPC it is stated that the power given to the state government to remit or commutate a sentence in an offence:

• Which is investigated under the Delhi Special Police Establishment or by any other agency which is constituted under any Central Act other than this Code.
• Which involves misappropriation or destruction of, or damage to any property belonging to the Central government.
• Which was committed by the person who is working under the Central government and was discharging his official duty.

Such offences, as mentioned above, shall not be discharged by the state government except after the consultation of the central government. Moreover, no order of remission, commutation, or suspension by the state government shall apply where the executive power of the Central government also extends, or where the terms of imprisonment of a person have to run concurrently. Such orders will have effect only where the central government has passed the same sentence with regard to the subject matter on which the executive power of the centre extends.

According to the 41st Report of the Law Commission of India, it was stated that there are some matters on which the centre is vitally concerned although on those subject matters the laws of the State government would apply. It is thus necessary that the central government should have a say on those matters and the state government should work only in consultation of the central government otherwise the administration of law and justice would be very difficult for the central government. 

Conclusion

The sentence awarded by the judiciary to an offender can be remitted, suspended or commutated by the executive action. The provisions of the Constitution and Criminal Procedure Code, 1973, gives various powers to the President and the Governor to alter the sentence awarded to the offender. This executive power has no legal check but after the few judicial cases, a small window for the judicial review has been available.

Remission in basic terms means to reduce the duration of the term of the sentence. Suspension, on the other hand, means to postpone the sentence without changing its duration. The above two do not interfere with the nature of the sentence. Commutation, in contrast, changes the nature of the punishment and turns it into a less severe one.

There are also various matters on which the state has to pass sentence in the consultation of the Central Government as the latter is vitally concerned with those subject matter. Under the CrPC, separate provisions are present for pregnant women. 

 References

• http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_NVFKGPCU.PDF
• https://mha.gov.in/sites/default/files/Advisory%20on%20433A_0.pdf
• https://devgan.in/crpc/chapter_32.php#s432
• https://www.gktoday.in/gk/Presidential-pardon-judicial-review/
• http://lawtimesjournal.in/difference-between-execution-suspension-remission-and-commutation-of-sentences
• https://shodhganga.inflibnet.ac.in/bitstream/10603/148889/13/13_chapter%206.pdf

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

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This article is written by Avinash Kumar, pursuing a Certificate Course in Advanced Corporate Taxation from LawSikho.com. Here he discusses “What are the Different Types of Residential Status Under Income Tax Act and What is their Relevance?”.

Introduction

Section 6 of the Income Tax Act 1961 talks about the Residential Status. Residential status of a person means that whether the particular person is entitled to pay the income tax in India or not?  

Residential status of a person plays a vital role in the purpose of the levy of income tax because the Income Tax department takes the tax based on the residential status of the person. If a person is a citizen of India but at the end of the day, he can be a non-resident for a financial year. 

This can be also a vice versa like a foreigner can be a citizen of that particular country and if he is living in India for a particular time period and that time period is fulfilling the criteria for the Resident of India then he can be taxable in India. 

While the residential status of the individual, company, a firm is determined in a different way. Each one has a different time period for the determination of Resident in India.

Why Residential Status is Important?

We are living in such a society where we don’t like the concept of sharing. We only think about the individual while we should think of society for the large. 

That’s why we try all possibilities to not share own hard money to the government. However, it is a very important duty to pay the tax for the growth of the nation. Because the money which we are paying in the form of tax that is directly or indirectly connected to our own development. 

At the time of filing of tax return, the residential status of the individual is very important. Because the Income Tax Department calculate tax according to the residential status of the individual. 

Residential Status of the individual, company, a firm is necessary because they are commencing their business in India and for their business, they are using the resources of the particular country and while using the resources they are earning money. So Residential status of the particular person plays an important role while at the time of paying taxes.

Burden of Proof

One of the important questions arises that if any dispute arises in a calculation of residential status of the individual, company or firm then the burden of proof will be on the assessee. This is the question of the fact that assessee is a resident or non-resident and it is the duty of the assessee to produce all the necessary facts to the Income Tax department to prove the resident or non-resident.  

Classification of Residential Status

As per the depending stay of the individual in India, Income Tax Law has classified the residential status into three categories. 

Residential status of an individual will cover the financial year of an individual and as well as his/her previous years of stay.

There are the following categories which classified the residential status of an individual.

1. Resident (ROR)
2. Resident but Not Ordinarily Resident (RNOR)
3. Non Resident (NR)

1. Resident and Ordinarily Resident (ROR)

Under Section 6(1) of the Income Tax Act an Individual is said to be resident in India if he fulfils the condition:

If he/she stay in India for a period of 182 days or more in a financial year, or He/ She is in India for a period of 60 days or more in a financial year and If he/she stays in India for a period of 365 days or more during the 4 years immediately preceding the previous year. 

As per section 6(6) of Income Tax Act, 1961 there are following two conditions when an individual will be treated as the “Resident and Ordinarily Resident” (ROR in India. 

1. If He/ She stays in India for a period of 730 days or more during the 7 years of preceding previous year. 
2. If He/ She stays in India for at least 2 out of 10 previous financial years which is preceding the previous years. 

If the individual doesn’t satisfy either of the condition, then he is no eligible to qualify as Resident and Ordinarily Resident (ROR).   

Points which are essential while calculating ROR

• It is not mandatory that assessed should stay at the same place and it is not mandatory that stay should be a continuous period of time which means it shouldn’t be on a regular basis.
• Territorial of India includes territorial water, continental shelf, and airspace which is up to twelve nautical miles.
• When any person visits India then their calculation of resident in India will be counted through their physical presence in India. And these physical presences will be counted on an hourly basis. If any dispute arises while calculating their physical presence, then the day on which he comes to India and the day on which he leaves India shall be taken into consideration while calculating the Residential status. 

Let’s understand the ROR with an example: 

Suppose Mr. Nayar who is a resident of India who went to another country in October 2018 while he had stayed in India during the financial year (2018-19) is for a period of 250 days which is exceeding the 182 days and his stay in previous 7 financial years is more than 730 days then he is eligible for paying the tax in India. That’s why the income of Mr. Nayar will be taxable in nature because he is fulfilling the condition of ROR.

Click Above

2. Resident but Not Ordinarily Resident (RNOR) 

An individual will be treated as RNOR when an assessee fulfill the following basic conditions:

In a financial year if an individual stays in India for a period of 182 days or more; Or He/ she stays in India for a period of 60 days in a financial year and 365 days or more during the 4 previous financial years. 

However, an Assesse will be treated as a Resident but Not Ordinarily Resident (RNOR) if they satisfy one of the basic condition which is as follows:

1. If He/ She stays in India for a period of 730 days or more during the 7 preceding financial year or;
2. If He/ She was a resident of India for at least 2 out of 10 in the previous financial year.

Let’s understand Resident but Not Ordinarily Resident with an example: 

Suppose Mr. Nayar who is in the Financial year 2017-18 stayed in India for a period pf 192 days so he was fulfilling the condition No 1 but He didn’t stay in India for more than 730 days during the period of 1st April 2010 to 31st March 2011 which was immediately preceding the Financial Year 2017-18. So in this situation, Mr. Nayar will be qualified for a Resident but Not Ordinarily Resident (RNOR).

3. Non – Resident (NR)

An individual will be qualified for Non Resident (NR) if He/ She satisfies the following conditions which are as follows: 

1. In a financial year if an Individual stay in India for less than 181 days and
2. In a financial year If an Individual stay in India for not more than 60 days
3. If an Individual stay in India which exceed 60 days in a financial year but doesn’t exceed the 365 days or more during the 4 previous financial years.     

What are the steps required to Calculate the Residential Status of an Individual?

• First, we check whether the Individual is falling under the category of exceptions for the basic conditions or not?
• After that, we check that whether they are satisfying the basic condition of 182 days of more or not? if they are satisfying then he will be treated as a resident otherwise he will be non–resident.  

If an Individual is not fulfilling the above condition, then we apply both the condition and if he satisfies any of the basic condition takes then he is said to be a Resident.

Conclusion

Origin, Nationality, place of birth, domicile doesn’t play a vital role in the calculation of Income Tax. If a person who is an Indian citizen can be non- resident and the person who is not a citizen of India and if they are residing in India, and if they are fulfilling the criteria of Resident then as an eye of Income Tax they can be resident of India and they will be taxable in nature. 

A resident will be charged to tax in India on his global income i.e. income earned in India as well as income earned outside India.

While calculating the residential status of an individual we check the physical stay in India and the physical stay of an individual is checked by their physical stay of the previous years. However, the residential status of an individual is change year to year. 

Like a person who can be resident for this year they can’t be resident for the next year if they are not fulfilling the resident criteria. That’s why once a taxpayer can’t be a taxpayer for next year.

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

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This article is written by Ramanuj Mukherjee, CEO, LawSikho.

“It is easier to find men who will volunteer to die, than to find those who are willing to endure pain with patience.” – Julius Caesar

Can you guess why the Caesar held men who were ready to endure pain with patience in high regard?

Who amongst you have found it possible to stay up all night before the exam, but impossible to study in a disciplined way for a single hour with full concentration every day all through the year? 

That’s basically me. 

I always took pride in how I could study overnight before the exam, and still did quite well, and even topped a few exams. 

But what if I systematically studied throughout the semester? What if I could apply myself with great intensity all the time and not just before the exam? What if I planned thoroughly and executed with precision in order to maximize outcome for myself? 

What could be possible?

Well, it is too late to answer that question now as far as I am concerned. I finished college almost 9 years back!

It is not like that I suddenly changed after college. The habit of working at the last moment, with a deadline looming over my head proved to be a difficult habit to abandon.

I am sure that many, many of you face the same problem at work. You only work hard just before a deadline. You are not able to do that kind of work without a crisis of looming disaster. You only do the most urgent work under some kind of threat, but you fail to do the important work that is required for the kind of growth you desire in your career.

I know how you feel, because I was that person for most of my life. I did really well under pressure, but when the pressure was off, so was my discipline and concentration. 

However, it was not a big loss that I didn’t learn how to do it in college. Later in life, this habit proved to be way more costly. Especially after I started a business. As the CEO of a company with close to 40 people working tirelessly to cater to a few thousand students at a time, and trying to double every 6 months, I had to evolve. 

I have evolved a lot.

I had to learn to plan things, to get work done at a predictable clip and plan for what’s coming ahead upfront rather than being reactive when a crisis is on my head.

It is not that there are no crisis for me to handle anymore, but I realise that I can avoid many of them by taking long term action and that once I deal with an emergency, it is also my duty to think about how to avoid it from happening again.

Click Above

I had to go through a complete transformation to make this happen. The buck stops with me, I cannot blame the failure of our company on someone else. Any mistake that our team members make would be ultimately my failure.

I had to learn to plan instead of doing last-moment work. 

I often have to plan months in advance! I have to even plan for what’s going to happen in the next financial year and begin working towards the same. I have to put plans in motion that may take years to materialize.

Patience, and ability to endure. I value these things much more than I ever did in my life.

I have come to realize the power of preparation and doing consistent work over time, through the transformation of my own organization! Fast growth was never possible without me learning to create and execute complex plans that take months and sometimes years to execute.

I had to first accept that heroic effort on a single occasion or even sporadic bursts is not nearly as valuable as long term sustainable effort that compounds over a period of time.

I have come to appreciate the power of a team, machinery, an organization, which is only viable when we take the difficult actions I used to avoid till the last moment on an planned basis! I not only have to do it myself but get my entire team to operate like that. 

What could your life look like if you could learn to work consistently, regularly rather than sweating over deadlines? What if you became proactive from reactive?

What growth could be possible that is only a fantasy today?

Here is why our courses at LawSikho produce the results they produce: 

We make you work on two assignments every week. Yes, that’s right. Every single week, you work on mock client assignments, followed by personal feedback followed by a live class. Doing this work, sustainably and regularly, over time, builds your legal muscles just like you could build your physical muscles by going to the gym 3 times a week!

Check out these courses, and try out risk-free for up to 45 days (see our amazing refund policy):

DIPLOMA 

Diploma in Business Laws for In House Counsels

Diploma in Companies Act, Corporate Governance and SEBI Regulations

EXECUTIVE CERTIFICATE COURSES

Certificate Course in Advanced Corporate Taxation

Certificate Course in Insolvency and Bankruptcy Code

Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting

Certificate Course in National Company Law Tribunal (NCLT) Litigation

Certificate Course in Arbitration: Strategy, Procedure and Drafting

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

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

Introduction

In India, the first step towards criminal proceeding is an investigation by the police. The investigation is the exclusive domain of the police and can not be curtailed in normal circumstances. The main purpose of an investigation is the identification of the offender so as to serve him with punishment for the crime done by him in accordance with the provisions contained under law. According to Section 156 of the Code of Criminal Procedure, the police have unfettered powers to investigate into a cognizable offence. The term cognizable offence is any act or omission committed by a person under any law in force which is punishable and is considered to be a crime. The police have the authority to arrest any person who has committed a cognizable offence. Beside Criminal investigation, there are other types of investigations which become the part of the life of an investigator. Some of the types of investigation are as follows:

• Civil investigation: These are the investigations which are carried on during the civil suits in which violation of law is generally not included and the question of money or property is to be settled;
• Negligence investigation: These types of investigations are conducted either by the plaintiff’s counsel to prove the liability of the defendant or by the defendant’s attorney to refute the claims of the plaintiff. It is accomplished by the use of surveillance, interviewing the witnesses;
• Corporate investigation: In Corporate investigations the investigator monitors the business of the company and also provides the information about the fraud within or outside the company;
• General investigation: It is like an umbrella term including a great variety of investigative activities. These activities may be conducted for different purposes like the determination of the location of witnesses, dishonest employees, fraud etc.

Meaning and steps of investigation

The proceedings initiated by police in order to collect all the information related to the crime which has been reported to the police is known as investigation. The process of investigation enables the police to identify the perpetrator, to arrest him and to gather all the material evidence essential for the prosecution of the accused. The two important steps in the process of investigation are as follows:

• To discover and arrest the suspect;
• To search and seize all the material evidence essential for the trial before the court of law.

The process of investigation presides the determination of guilt and the imposition of a fine by the court of law upon the guilty based upon the arguments, evidences and witnesses presented before the court. The power of police to investigate a cognizable case and the procedure to be followed thereof has been given under Section 154 and Section 174 of the Code of Criminal Procedure. At the different stages of the investigation, three types of reports are required to be prepared by the police. The three reports mentioned under the Code of Criminal Procedure are as follows:

• According to Section 157 of the Code of Criminal Procedure, the officer in charge of the police station is required to submit a preliminary report to the Magistrate;
• According to Section 168 of the Code of Criminal Procedure, a subordinate officer is required to submit a report to the officer in charge;
• According to Section 173 of the Code of Criminal Procedure, a final report is required to be submitted to the Magistrate as soon as the investigation gets over.

The different steps involved in the process of investigation are as follows:

1. Information about the crime scene to the police;
2. Deployment of the police to the crime scene;
3. Ascertainment of facts and circumstances related to the crime by the police;
4. Search and arrest of the perpetrator;
5. Collection of the evidence which are material to the process of investigation and trial and their examination;
6. Preparation of the sketch of the crime scene with the help of the minutest information available with the police;
7. The decision of whether the accused shall be taken in front of the magistrate.

Powers of police to investigate

The police have the power to make an investigation upon the fulfilment of any of the following conditions:

• When FIR has been registered under Section 154 of the Code of Criminal Procedure. Section 154 provides that any complaint made of any cognizable offence before the officer in charge of the police station, then it would be binding upon the police officer to register the complaint thereof on the basis of the information so received and no consideration regarding the credibility and genuineness of the information so received shall be made;
• Where the police officer under Section 156(1) and 157(1) of the Code of Criminal Procedure has a reason to suspect the happening of any cognizable offence;
• Where under Section 156(3) of the Code of Criminal Procedure, the Magistrate orders the police to register a case without taking its cognizance under Section 200 of the Code of Criminal Procedure;
• After taking cognizance of the complaint made about the happening of an offence decision regarding the initiation of the process of an investigation against the accused is made under Section 202(1) and 203 of the Code of Criminal Procedure.

Authority given to private investigating agencies to investigate

Private investigating agencies conduct private investigations and enquiry in matters related to family disputes, insurance, and crimes. The private investigation agencies are legal in India. However, presently there is no such law to regulate the working of these agencies and they are free to carry on their functions anywhere in the country without any restrictions imposed upon their working. The Parliament in the year 2007 introduced The Private Detective Regulation Bill, 2007 with a view to regulate the working of the private investigating agencies and to prevent them from getting involved into illegal acts like Naxalism, terrorism, etc. but the bill is still pending before the Parliament.

The private detective agencies function through the private detective hired by them. The work of private investigating agencies can be classified into two categories which are as follows:

• Private investigation: Private detective agencies conduct investigations for private individuals. However, unlike the police, these agencies do not have the authority to make an arrest of the offenders. These agencies use highly advanced technological instruments to carry on the investigation. These instruments include private investigation software, spy cameras, GPS devices, microphones, hidden cameras, etc.;
• Private securities: In India, no prior training is provided to private securities. The private securities usually deal with matters involving marital disputes, pre and post-employment issues, kidnapping, monitoring the activities of children.

Important roles and duties of police

The most important role of a police officer is the enforcement of law and order in the society which is ensured by the police by patrolling in his or her jurisdiction and identification of the situations where law and order are put to stake. Every society requires a healthy functioning police institution to ensure the protection of life, liberty and property of the people of the society. There are different other duties and roles of police some of them are listed below:

• Training: Police officers are required to be physically, mentally and emotionally fit because it is the demand of their job. To imbibe such fitness, the police officers are subjected to rigorous training. The main aim of the training is also to enhance their endurance and intellectual capacity. A person undergoing training is also provided with driving and first aid training in order to make them always ready for any unforeseen situation that might come their way. They are also required to be polite and respectful towards the other members of society and remain calm during stressful situations.
• Standard of conduct: Police officers hold a position of honour and authority and are therefore required to deal sensitively with the people who come to them to seek help. Therefore, it is the utmost duty of the police officers to be sensitized about the needs of the people who are in distress and seek their help.
• Initiation of criminal charges: The criminal proceedings are started by the police in two ways that is either by giving appearance notice to the offender or by arresting the offender.
• To maintain internal security: Police aims at the preservation of the environment of peace and calm in the society by preventing and controlling the activities which are detrimental to the interest of the society such activities include terrorism, Naxalism illegal hartals and demonstrations, etc.
• Registration of the complaint: It is the utmost duty of the police to register all the complaints brought to it by the complainant and investigate all the cognizable offences which come up for registration.

Information to the police as to cognizable cases

Section 154 of the Code of Criminal Procedure contains provisions requiring the registration of every information relating to the commission of offense which is informed to the police. The section mandates that every information pertaining to the cognizable offence should be noted down in writing by the police officer in charge or by any other person under his direction. All such information which is written down should be read out and be signed by the person giving the information to the police. The information which is thus reduced to writing is known as First information and the report so produced is called first information report or FIR, although, the term first information report has not been mentioned anywhere in the Code, keeping in view the information recorded under the Section, the term is used in common parlance. 

The main objective of the First Information Report or FIR is to bring the Criminal law in force and to start the investigation procedure in the case. FIR also acts as important corroborative evidence in the criminal trial. The reason for emphasising the instant lodging of the FIR is to obtain the prior information about the circumstances under which the crime was committed, the information about the culprits, the role played by them and the name of the eye witness is on record.

FIR is the information received by the police in the initial stage of the commission of the crime and therefore it cannot be used as substantive evidence but can only act as corroborative evidence to corroborate the information imparted by the person filing the FIR. But when the validity of the case is decided by the court, the court has to take into consideration, the other factors related to the case.

The first proviso attached to Section 154 states that where any information about the specified offences is given by a woman, then the information must be registered by a woman police officer. The second proviso attached with the Section reads that where any wrong is committed against any person who is mentally or physically unfit, then it is required that such information must be registered by the police officer at the residence of such person or any other place which shall be convenient for him and during the registration process, the presence of an inter or an educator is mandatory.

Registration of FIR

The object of the First Information from the point of view of the complainant is to set the criminal law in motion and is like the first step taken towards obtaining justice. Whereas from the point of view of the investigating authorities, the importance of the First Information lies in the fact that it is the first instance which sets in motion the investing agencies for carrying out the process of investigation and tracing the evidence which is conducive for a fair trial and also to bring and book the offender.

In Tulsiram v. State of Madhya Pradesh, the question which was raised in the case was whether the police using its discretion not to register FIR of the case based on the preliminary investigation conducted by them. In the present case, the police denied registering the FIR of the accused. Aggrieved by the denial of the police to register the case, the petitioner filed a writ of mandamus in the court of law so as to command the respondents to obey the law and file the FIR. The contention presented by the respondents was that they denied the filling of the complaint because of the reason that they had already conducted a preliminary enquiry and found the complaint to be a false one. However, the court rejected the contention on two grounds which are as follows:

• The inquiry which the police conducted was not substantiated by a valid justification;
• The non-registration of the complaint violated the principles of natural justice, which was uncalled for.

In Munna Lal V. State Of Himachal Pradesh, the petitioner’s eldest son was married to the daughter of one Sham Lal, one day the petitioner’s son was found dead in suspicious condition. The day before the dead body of the petitioner’s son was found, Sham Lal came to petitioner’s house to take his son to a dispensary. Sham lal refused his daughter to accompany her husband (petitioner’s son) and also refused her to pack food for the journey. The facts of the case also revealed that Sham Lal was against the marriage between his daughter and the petitioner’s son. The police, in this case, had refused to file the FIR report and contended that they had already carried on a preliminary enquiry in which it was held that the death of the petitioner’s son was due to the exposure in extreme cold and because of heavy consumption of alcohol.

Essentials of FIR

The essentials of an FIR are listed below:

1. FIR has to be first with respect to the point of time;
2. FIR must be informative and should not be based on gossip, vague facts or any hearsay witness;
3. FIR must be registered by the officer in charge of the police;
4. FIR must be about the cognizable offences;
5. FIR must be in writing or should be reduced to writing if it is given in the oral form and read out to the person who is filing the complaint;
6. FIR should be mandatorily signed by the informant;
7. FIR must be entered into the daily diary maintained by the police;
8. Under Section 154 of the Code of Criminal Procedure, mere gossip, hearsay evidence or rumours cannot become FIR and the evidence which is required is a definitive piece of information.

Evidentiary value of FIR

The evidentiary value of FIR is very high during the cognizance of an offence or at the time of initiation of investigation about the information furnished under Section 154 and 155 of CrPC. however, FIR cannot be regarded as a substantive piece of evidence and can be regarded only as an important piece of corroborative evidence.

During the process of cognizance of any offence or at the time of initiation of investigation about information recorded under Section 154 and 155 of CrPC, the evidentiary value of FIR is very high. However, it is an established principle of law that FIR can not be regarded as a substantive piece of evidence and can only be treated as an important piece of evidence.

In Pandurang Chandrakant Mhatre v. State of Maharashtra, the court held that FIR can not be treated as a source of substantive law and it can be used only to question the dispositions made by the person who files the FIR and it can not be used to discredit or question the trustworthiness of the testimony made by the other witnesses.

The reasons for the FIR not having any substantive value are as follows:

• The statements made under the FIR are not accompanied by an oath;
• The statements which are made under FIR are not made during the trial or proceedings before the court;
• The statements under FIR are not subjected to the cross-examination by the court at the time of filling it;
• The statements under the FIR made before the police do not have admissibility in a court of law.

The reasons for treating FIR as an important piece of evidence are as follows:

• To corroborate the evidence made by the person who has filed the FIR;
• To cross-examine the statements made by the person under FIR;
• To refresh the informer’s memory;
• To challenge the creditworthiness of the statements made by the informer;
• To ascertain the general facts like the identity of the accused, time of offences, etc.

There are certain exceptions where the FIR is used as a substantive piece of evidence. The exceptional situations include the situation in which the FIR is used to corroborate or contradict the statements made by the informant. Section 145 of the Indian Evidence Act permits the cross-examination of the statement made by the informant in order to challenge his assertions. Under Section 153(2) of the Indian Evidence Act, the informer can be asked any question for the purposes of defeating his claims and the oral statements made by him under FIR. The main objective of Section 145 of the Indian Evidence Act is two-fold, firstly, to cross-examine the previous statement made by the informer and secondly to contradict the claims made by him in the court of law by proving the contradictory claims furnished by him.

In Ram Chandra v. State of Haryana, the Supreme Court held that the information recorded under FIR can be used to corroborate and contradict the facts stated by the informer.

Information to the police as to non-cognizable cases

Section 155 of the Code of Criminal Procedure deals with information in case of non-cognizable offences and the way investigation has to be carried on in these cases. According to the provisions of this Section, all the information which is received by the police under Section 155 must be recorded by the police in such books as may be prescribed by the State Government under which the police station falls. Section 155(2) of the Code mandates that the investigations related to the non-cognizable offences can not be started by the police without the prior permission of the Magistrate who has the power to investigate these cases. A police officer can start the investigation of the case as soon as he receives the permission from the Magistrate and when the police acquire the permission it has the power to investigate the case in the same way as he has in the matters of cognizable offences. However, the police do not possess the power to arrest any person in cases related to non-cognizable offences without having an arrest warrant. According to Section 155(4), in cases where there are two or more offences involved, then the entire matter would be treated as a cognizable one and the police would have the authority to investigate the case in the same way as it has with respect to the cognizable cases. 

Powers of the police to investigate such cases

Section 157 of the Code of Criminal Procedure lays down the procedure to be followed for investigation of the cases. The Section provides that every complaint or information which is received by the police should be immediately conveyed to the Magistrate who has jurisdiction to try such cases. The Magistrate has the power to investigate such offences or to order any subordinate officer to investigate the facts and circumstances of the case and take all the necessary actions for discovery and arrest the accused. The report regarding the findings of the case is sent to the magistrate in order to keep him abreast of the latest happenings.

Section 157 of the Code initiates the investigation to be conducted by the police or any other person authorized by the magistrate.

In Kari Chowdhary v. Sita Devi, the court held that the aim of carrying on investigations is to find out whether, in fact, the offence that has been alleged to have taken place has been committed and if the findings reveal that an offence has been committed then it is to be ascertained that who has committed the offence. However, where the police come to the conclusion that even though there has been a commission of an offence but the nature of it is not so serious to carry on any investigation then they can exempt themselves from doing so.

A case consisting of both cognizable and non-cognizable offences

The provisions related to information in case of non-cognizable offences and the way investigation has to be carried on are contained under Section 155 of the Code of Criminal Procedure. The Section provides that all the information which is received by the police under Section 155 must be recorded by the police in such books as may be prescribed by the State Government under which the police station falls. Section 155(2) of the Code mandates that the investigations related to the non-cognizable offences can not be started by the police without the prior permission of the Magistrate who has the power to investigate these cases. A police officer can start the investigation of the case as soon as he receives the permission from the Magistrate and when the police acquires the permission it has the power to investigate the case in the same way as he has in the matters of cognizable offences. However, the police do not possess the power to arrest any person in cases related to non-cognizable offences without having an arrest warrant.

According to Section 155(4), in cases where there are two or more offences involved and one of the offences is non-cognizable while the other offences are cognizable, then the entire matter would be treated as a cognizable one and the police would have the authority to investigate the case in the same way as it has with respect to the cognizable cases.

Powers to investigate a non-cognizable case

Section 155(2) of the Code mandates that the investigations related to the non-cognizable offences can not be started by the police without the prior permission of the Magistrate who has the power to investigate these cases. A police officer can start the investigation of the case as soon as he receives the permission from the Magistrate and when the police acquire the permission it has the power to investigate the case in the same way as he has in the matters of cognizable offences. However, the police do not possess the power to arrest any person in cases related to non-cognizable offences without having an arrest warrant.

Initiation of investigation

According to Section 2(h) of the Code of Criminal Procedure, the term investigation includes within its ambit all the proceedings which are undertaken by the police or any other person who is authorized by the Magistrate to carry on the investigation with a view to gathering the evidence in any case which has been reported. The person who carries on the process of investigation in a criminal case is referred to as a criminal investigator. The Code of Criminal Procedure contains provisions which direct the police when to initiate an investigation. Some of the Sections have been mentioned below:

• Section 154 of the Code provides that the police can initiate the investigation when a cognizable case has been reported to them;
• Section 155 of the Code provides that the police can initiate the investigation of a non-cognizable case when they have received permission to investigate from the Magistrate;
• Section 156 of the Code empowers any officer in charge of the police to initiate an investigation in case of a non-cognizable offence even without the prior permission of the Magistrate;
• Section 157 of the Code lays down the procedure which is required to be followed by the police in carrying on an investigation.

The court in Shiv Bahadur Singh Vs State of Madhya Pradesh held that the process of investigation begins right after the FIR is recorded in the police station having jurisdiction to do so.

Procedure for investigating a cognizable offence

Section 156 of the Code of Criminal Procedure lays down that the officer in charge of the police may, without the prior permission of the Magistrate start the process of investigation in cases involving cognizable offences. In a case where the police suspect the happening of a cognizable offence, it can start an investigation even without FIR. Police have the statutory right to investigate and it can not be taken away from it by the judiciary. The action of the courts begins only after the charge sheet has been preferred by the police and not prior to it.

In State of UP v. RK Srivastava, it was held that if the FIR does not point out to a cognizable offence or the proceedings have been initiated by the police with mala fide intention then the police has no authority to investigate in such a case and the High Court can stop and quash such an unjustified investigation carried on by the police.

In Indrajit Mukherjee v. State, the court held that the Magistrate does not have the authority to direct the investigating agencies the manner in which the investigation has to be carried on.

Section 156(2) of the Code of Criminal Procedure provides that no investigation proceedings carried out by the police shall be called to question on the ground that the case was the one in which the investigating officers do not possess the authority to deal with. Thus, any subsequent irregularity which is discovered at a later stage can not be the reason to vitiate the proceedings or the trial.

In State of UP v. Hari Mohan, the court held that a trial cannot be invalidated on the sole ground of the irregularity of the investigation conducted by the police until and unless such irregularity results into the grave miscarriage of justice.

Police officer’s power to require the attendance of witnesses

According to Section 160 of Code of Criminal Procedure Police officers who investigate a particular case have the power to require the attendance of witnesses in that case. Section 160 of the Code contains the following provision with respect to the power of the police to require the attendance of the witness:

• Section 160(1) of the Code provides that any police officer who is making an investigation of any case can make by order in writing, requiring the attendance of any person before him whom he deems to be in connection with the facts and circumstances of the case and who can in any way be a help for smoothly carrying on the investigation. The witness who has been required to make an attendance shall be present in the place as has been directed by the police. However, the Section further provides that no male below or under the age of fifteen years or any female shall be required to make attendance at any place other than the place of their residence.
• Section 160(2) of the Code provides that the State Government may by rules mandate that the police officer shall be liable to pay the reasonable expenses to the person whom they have required to make attendance as a witness under Section 160 (1) of the Code which they might have incurred in commuting to the place where they were called for making attendance.

The punishment of non-compliance of summons made by the police under Section 160 CrPC has been provided under Section 174 of Indian Penal Code where it has been declared as an offence. Section 174 of the IPC provides that whoever was bound to attend in person under Section 160 of the Code of Criminal Procedure any specific place at any specific time. If fails to make an appearance intentionally shall be liable to the punishment of simple imprisonment which may extend to one month or fine of five hundred rupees or with both. If the person has failed to make his attendance on the summons, notice order or proclamation which mandated him to appear in person or through his agent in the court of law shall be liable to a punishment of simple imprisonment for a term extendable to six months or with fine extendable to one thousand rupees or with both.

Examination of witnesses by police

The dictionary meaning of the term statement is “reciting or asserting any fact”. However, under the Code of Criminal Procedure, the term statement has been nowhere declared. Section 161 and 162 of the Code of Criminal Procedure deals with the oral examination of the witnesses by the police and the record and the use of the statements made by the witnesses to the police. Section 161 of the Code deals with the oral examination of the person by the investing agencies who are supposed to be acquainted with the facts and circumstances of the case. According to Section 162 of the Code, the purpose and the manner in which the police investigation has been conducted under Section 161 of the code shall be recorded an can be used during the trial.

The main objective behind Section 161 of CrPC is to obtain information pertaining to the facts and circumstances of the case which may be used to substantiate the facts and circumstances of the case during the trial in front of the Court of law. Section 161 empowers the police to orally examine ”any person” who is supposed to be acquainted with the facts and circumstances of the case.

Sub-section 2 of Section 161 put the duty upon the person who is questioned by the investigating agencies to answer all the questions honestly excepting those which are or may be self-incriminating in nature. The protection given to the person from self-incrimination is also given under Article 20 subsection 3 of the Constitution of India.

In Nandini Satpathy v. P.L Dani, the court held that an accused can not be compelled to answer any question put before him by the investigating agencies. If the nature of the questions is non-incriminating in nature when they are viewed in isolation but their nature changes to self- incriminating when the questions are viewed in a collectivity. Therefore, the Constitution guarantees a person not only freedom of speech but also the freedom to keep one’s mouth shut.

The statements of the witness recorded under Section 161 of the CrPC should be in indirect speech and shall be recorded in the first person. No oath or affirmation is required to be accompanied by the statements of the witness. It is not binding upon the investigating agency to record the statements made by the witness but if the statements are recorded then they must be recorded in the same manner as they are actually made. Subsection 3 of Section 161 of CrPC prohibits the investigating agencies from making the precis of the statements made by the witness also the statements made under this subsection may be recorded in audio-video electronic means. It is also mandated by the Section that the statements made by a woman witness must be recorded by a woman police officer.

Evidentiary value of the statements made to the police during the investigation

Section 161 of the Code of Criminal Procedure deals with the oral examination of the witnesses by the police and the record and the use of the statements made by the witnesses to the police. Section 161 of the Code deals with the oral examination of the person by the investing agencies who are supposed to be acquainted with the facts and circumstances of the case. According to Section 162 of the Code, the purpose and the manner in which the police investigation has been conducted under Section 161 of the code shall be recorded an can be used during the trial.

The main objective behind Section 161 of CrPC is to obtain information pertaining to the facts and circumstances of the case which may be used to substantiate the facts and circumstances of the case during the trial in front of the Court of law.

When a crime is committed there might be many people who are present at the crime scene and are aware of the facts and circumstances of the case. Therefore the statements of these witnesses are recorded in order to get a clearer picture of the crime and to determine the accused in the case. Therefore, the main purpose of the investigation is to obtain the evidence related to the crime which would lead the investigation and would ultimately lead to the deduction of conclusion.

Any statement or confession made to the police is never admissible as evidence because most of the statements made before the police are given under first or second-degree torture. Thus, most of the statements made to the police are made with the view to avoid pain and torture meted out to them by the police. Thus, not making the statements made before the police not admissible in the court of law is in the interest of justice. Section 162 of the Code provides that the person making the statements before the police shall not be compelled to sign the same and the statements so made will not be admissible in the court of law.

In Baleshwar Rai v. State of Bihar, the court held that the statements which are talked under Section 162 are the statements which are made before the court during the investigation and not during the period of investigation.

Therefore, the statements made by the witness before the police under Section 161 of the Code are not admissible as evidence in a court of law. However, the proviso attached to Section 162 sub-section 1 provides that if the witness is brought before the court from either side of the prosecution to testify then the person making the statement can be contradicted on the basis of the statement. Under Section 145 and 161 of the Indian Evidence Act, if there is a statement made by the defence witness recorded by the police in its day to day diary then the statement of the defence witness can be used to contradict him.

Conclusion

In criminal cases, the process of investigation is extremely thorough and involves a great deal of skill and caution. The law requires that the process of investigation should be carried on with great care and diligence as one wrong investigation would defeat the entire purpose of investigation which is the deliverance of justice to those who seek and also the discovery of the offender. Therefore, it is expected from the police that they leave no stone unturned while investigating a case. According to Section 173 of the Code of Criminal Procedure, the investigation of the case begins from the cognizance of the offence to the filing of the report before the Magistrate. The guilty get convicted after the proceeding of the case gets over when the Court finds proof that he has committed the offence.

FIR is an important procedure which is the first step towards the investigation of an offence and if it is carried on with due procedure established by law and diligence it can be an important source of evidence. It can be an important source of information required during the trial and can be used as corroborative evidence. Therefore, it is the mandatory duty of the police officer to record the FIR as soon as the information is received. As regards to the evidentiary value of the FIR, it is settled principle of law that the statements made by a person to the police officers are not admissible in the court of justice and hence the ascertainment of the facts by the police officer’s also comes under the umbrella of important piece of evidence but not a substantive piece of evidence. FIR can sometimes also be considered as Substantial Evidence but in most of the cases it ends up having a just value of an important piece of evidence. Hence we can assume that FIR is an important and a circumstantial piece of evidence.

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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 functionaries under the Code of Criminal Procedure, 1973.

Introduction

There are various functionaries under the Code of Criminal Procedure,1973 who help to regulate the various provisions of the code. The functionaries are essential for the proper functioning of the code. The various functionaries mentioned under the code are the Police, Public Prosecutors, Assistant Public Prosecutors, Additional Prosecutors, Prison authorities and the Defence counsel. The powers and functions of the functionaries are clearly mentioned in the code.

The Police

The Police Officer is an important authority who is the backbone of criminal law in India. They are responsible for maintaining the law and order of the country. They are also responsible for the enforcement of various laws and orders. The police officers have various powers and functions that help to prevent various crimes happening in our country. There is no definition of the term “Police” in the Code of Criminal Procedure but the term is defined in the Police Act of 1861. According to the Police Act, 1861 all the persons who are enrolled under the Act are known as the Police. 

The Police Act, 1861

The Police Act, 1861 is a comprehensive code that deals with the appointment, dismissal, and functions of the police officers. The main aim of the Police Act is to reorganize the police forces whenever necessary and to make the police forces more effective. The Police Act contains 47 sections which deal with the various aspects of the police force. The Police Act of 1861 is a legislation that was brought by the British officers after the First war of independence. There are various states like Kerala, Maharashtra, Gujarat, and Delhi that have formulated a separate Police Act for their states but they are very similar to the Police Act, 1861. 

Organisation of the police

Section 2 of the Police Act, 1861 deals with the constitution of the Police force. The State Government is responsible for establishing a Police force in that State. According to this Section, the entire Police establishment under the State Government is deemed to be a single Police force. The State Government can decide the number of officers to be appointed and it varies from time to time. Section 3 provides that the superintendence of the Police and that has to be exercised by the State Government. The Inspector-General of Police is responsible for the administration of the Police department. The hierarchy to be followed while exercising power is Deputy Inspectors-General, Assistant Inspectors- General, Superintendents, etc. According to Section 5, the State Government may impose any restrictions on the powers of the Inspector-General of the Police.

Section 7 of the Police Act deals with the appointment and dismissal of the inferior officers. This Section provides powers to the Inspector-General, Deputy Inspectors-General, Assistant Inspector-General and District Superintendents of Police to dismiss, suspend or reduce any police officer of the subordinate ranks. This action is taken when the officers are negligent in discharging their duties. There is a certificate provided to the Police Officers after their appointment according to Section 8 which allows him to exercise powers provided by the Act. Section 17 of the Act deals with the appointment of Special police officers. Special Police Officers are appointed in a situation when there is a riot or disturbance of peace in any form and the Police Officer normally appointed cannot handle the situation. The Special Police Officers are appointed by the Inspector General in charge after providing a proper application to the Magistrate. The powers of Special Police Officers are the same as the normal Police Officers. According to Section 20, the Police Officers can exercise only the authority provided in the Act and cannot exercise any other power exceeding this Act.

Functions of the police

Section 23 of the Police Act, 1861 deals with the functions of the Police Officer. According to this Section, it is the duty of every Police Officer,

1. To collect and communicate intelligence.
2. To prevent the commission of offences and public nuisance.
3. To figure out and bring offenders.
4. To promptly obey and execute all orders executed to him by any competent authority.
5. To arrest all persons if any crime is committed and whom he is legally authorized to arrest.
6. To enter and inspect any drinking or gambling house or other places without a warrant to solve loose or disorderly characters.

Section 25 provides that it is the duty of every Police Officer to take charge of unclaimed property. The Police Officer has to pay a penalty for neglecting his duty. The Magistrate might even punish Police Officers with imprisonment if it is necessary.

Other Police Acts

The Police Act is the main legislation which regulates the Police forces in India. The various provisions in Indian Penal Code, 1860 and the Criminal Procedure Code are also responsible for regulating various functions of the Police. There are also certain provision like Section 26 and Section 27 in the Indian Evidence Act, 1872 which provides power to the Police to record confessional statements. There are also different regulations and manuals, for example, the manuals in Tamil Nadu which regulates the various functions and duties of Police. 

Importance of Police under the Code

The Police are provided with lots of duties and powers under the Code of Criminal Procedure, 1973. Section 151 of the Code provides power to arrest a person without any warrant and orders from Magistrate to prevent the commission of any cognizable offences. The person arrested cannot be detained in custody for a period not exceeding more than 24 hours from his arrest. This period can also be extended if it is required by the various provisions of this Act or other laws in force. According to Section 154, the Police Officers have the power to record every information provided orally if it relates to the commission of a cognizable offence. This Section also says that certain complaints can be recorded only by the women Police Officers if a complaint is given under the various provisions of the Indian Penal Code which relates to the offences against women, Section 156 of the Code provides power to the Magistrate to investigate any cognizable offence within their jurisdiction without the order of any Magistrate.

Public Prosecutors

Section 24 of the Code of Criminal Procedure deals with the Public Prosecutor. The main function of the office of Public Prosecutor is to administer justice and to secure the public purpose entrusted with him. The Public Prosecutor is an important officer of the State Government and is appointed according to the provisions of this code. The Public Prosecutor is an independent statutory authority and is not a part of any investigating agency. 

It is mandatory to appoint a Public Prosecutor in all the cases when the prosecution is against the State. The Court cannot provide any reasons like shortage of funds to appoint a Public Prosecutor. The Advocate-General cannot become a Public Prosecutor unless he is appointed under Section 24. The relationship between the Public Prosecutor and the Government is that of a counsel and a client. The Public Prosecutor shall never be partial to either the accused or prosecution.

There are various classes of Public Prosecutor like,

1. Public Prosecutors appointed by the State Government and the Central Government;
2. Additional Public Prosecutors appointed by the State Government;
3. Special Public Prosecutors appointed by the Central Government;
4. Special Public Prosecutors appointed by the State Government.

Public Prosecutors and additional public prosecutors for High Court

Section 24(1) of the Code of Criminal Procedure provides powers to the Central Government or State Government to appoint a Public Prosecutor for every High Court. They can also appoint one or more Additional Public Prosecutors. The appropriate Government can appoint the Public Prosecutors after consultation with the High Court. The eligibility of the person to be appointed as a Public Prosecutor is that he should be practising as an Advocate for not less than seven years.

Public Prosecutors and Additional Public Prosecutors for districts

Section 24 provides various rules regarding the appointment of Public Prosecutors and Additional Public Prosecutors for districts. The Central Government can appoint one or more Public Prosecutors for conducting cases in any district or local area. The State Government can also appoint one or more Additional Public Prosecutors for the district. The Public Prosecutor or Additional Public Prosecutor appointed for a district can also be appointed for another district in certain cases. The District Magistrate will prepare a panel of names of persons who are eligible to be appointed as a Public Prosecutor or Additional Public Prosecutor. This list is prepared after consulting the Sessions Judge. The State Government cannot appoint any other person as the Public Prosecutor or Additional Public Prosecutor other than the persons provided in the panel of names.

Assistant public prosecutors

Section 25 of the Code of Criminal Procedure deals with the appointment of Assistant Public Prosecutors. The State Government has to appoint one or more Assistant Public Prosecutors for conducting prosecutions in different districts. The Assistant Public Prosecutors have no right to practise as advocates or defend the accused in criminal cases. Their only work is to conduct prosecutions on behalf of the State. A police officer who is not below the rank of Inspector and who has not taken part in the investigation of offence can also be appointed as Assistant Public Prosecutor when there is no availability. The Assistant Public Prosecutors are full-time Government servants.

In the case of Kannappan v. Abbas, the Madras High Court held that the permission granted by a Magistrate permitting the accused to appear for the accused was without jurisdiction. The Public Prosecutor is not competent to act as a defence counsel even in a private criminal complaint against police officers.

Role of the Prosecutors

The Public Prosecutors are appointed to conduct any prosecution, appeal or any other proceedings on behalf of the Central Government or State Government. The Public Prosecutor is bound to satisfy himself that there is a justification to seek an order of remand to judicial custody and to assist the Court, for example in a case, the Assistant Public Prosecutor conducted a case under the Prevention of Food Adulteration Act, the trial was impaired as the Assistant Public Prosecutor has no authority to conduct those cases.

Court

The Courts are another important functionary under the Code of Criminal Procedure. There are various classes of Criminal Court like,

• Courts of Session;
• Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;
• Judicial Magistrates of the second class; and
• Executive Magistrates.

The Code of Criminal Procedure has clearly differentiated the various functions of the court and has dedicated various powers to various classes of Courts in Chapter three of the Code of Criminal Procedure. Section 26 of this code mentions that the High Court, the Court of Session or any other Court as specified in the First Schedule of the Code of Criminal Procedure is eligible to try offences provided under the Indian Penal Code. Section 28, Section 29 and Section 30 deals with the various kinds of sentences that can be passed by different Courts which helps the procedure of trial and also the powers between the Courts get distributed properly. The Courts govern the entire process of trial and acts as a regulating authority.

The Defence Counsel

Every person arrested by the police has a right to defend himself with the help of a counsel. In the case of State of Madhya Pradesh v.Shobharam, it was provided that any law that takes away the right to defend is against the rights guaranteed in the constitution. This provision should be construed in relation to Article 22 of the Constitution which provides the right to free legal aid to the accused. The arrest leads to restriction of personal liberty and thus the right to defend himself by the counsel of his choice is a compulsory right. Section 303 of the Criminal Procedure Code provides this right to appoint a defence counsel of their choice. This provision must be construed liberally in favour of the accused along with the other provisions and orders issued by the High Courts. A defence counsel should be provided to the accused even in cases of committing capital offences where they have no right to defend themselves. The right guaranteed under this Section is indispensable as it guarantees a fair trial. When the accused is not represented by counsel, it is the duty of the court to put appropriate questions to the witnesses in cross-examinations in order to find out the truth. The court also has the duty to examine the evidence.

Prison authorities and correctional services personnel

The Prison authorities are not directly governed by the Code of Criminal Procedure even though they are involved in the various stages of the proceedings. The Prisoners Act, 1900 is an important act which governs the various duties of prison authorities. According to Section 3 of the Prisoners Act, the officer in charge has the duty to detain persons who are convicted until the person is removed in due course of law. Section 4 of the Prisoners Act gives the officers to return the order, writ or warrant to the court after the discharge of persons who committed the crime. The State Government has powers to appoint prison authorities. The prison personnel are appointed for the management of correctional services like providing recreational services and securing the safety of inmates.

Conclusion

The functionaries under the Code of Criminal Procedure are very essential for the enforcement of various provisions of this Code. Each functionary has a different duty which together regulates various provisions of this code. The public should be aware of the various functions performed by these functionaries in order to approach them when there is an issue. The Public should support these functionaries in every way possible to help them perform their duties. Thus these authorities form an important part of the criminal proceedings.

References

• https://blog.ipleaders.in/the-indian-police-act-and-police-reform-in-india/.
• https://blog.ipleaders.in/meaning-roles-functions-public-prosecutor/.

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

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This Article is written by Shruti Singh, 2nd year Law intern from Hidayatullah National Law University, Raipur pursuing B.A.LLB(Hons.) Course. This article explains the provisions and procedures which deals with attachment of property under the Code of Civil Procedure.

Introduction

A civil suit is instituted against an individual who causes some kind of harm or wrongful act to the plaintiff. Usually, in a civil suit compensation is awarded to the complainant, the person who suffered harm because of the action of the defendant. Hence, a civil lawsuit can be brought over a residential eviction after a broken lease, a contract dispute, injuries caused due to car accidents, or countless other harms or disputes. The main objective of instituting a civil suit is to compensate for the harm caused to the aggrieved, unlike the criminal suit which emphasizes punishment for the wrongdoer.

There are three stages of every civil suit. It starts with the institution of a suit, adjudication of a suit and finally the implementation of a suit. The implementation of the suit is a step in which the results of the adjudication are put into action, hence this stage is known as execution. In this process, the order or judgement passed by the court is enforced or given effect. It is the enforcement of the decree and gives the benefit to the decree-holder in whose favour the decree has been passed. Section 38 of CPC states as to who can execute the decree. A decree may be executed either by the court which passed it, or by the Court to which it is sent for execution. Section 37 gives further explanation of certain expressions. In a proceeding for the arrest of Judgment Debtor, if the Decree Holder satisfies the Court that the Judgment Debtor has sufficient means to satisfy the decree, the Court cannot refuse to order arrest, on the ground that there is an alternative remedy of attachment available to the Decree Holder for realization of the decretal amount.

The Code of Civil Procedure, 1908 provides various modes of execution of a decree subject to some conditions and limitations. 

Section 51 of CPC provides the following modes of execution of decrees subject to such conditions and limitations as may be prescribed.

(a) By delivery of any property specifically decreed;

(b) By attachment and sale or by the sale without attachment of any property;

(c) By arrest and detention in prison for such period not exceeding the period;

(d) In such other manner as the nature of the relief granted may require.

Attachment of property is one of the modes of execution applied by the court of justice. An executing court is competent to attach the property if it is situated within the jurisdiction of the court. The place where a judgement debtor carries out his business is not relevant.

Nature, Scope and Objective

Attachment of property is one of the modes of execution of a decree in a civil suit. In a decree, the court may require a person(defendant) to pay an amount to the decree-holder. In cases where the defendant fails to pay the required sum, the court can, in the execution of its decree, attach the movable and immovable property of the defendant and recover the amount which is due by the disposal of these assets. However, there are some assets which cannot be attached to recover the due amount.

This article goes through various modes adopted by courts in executing a decree in a suit with special emphasis on “Attachment of property”. It also examines the various provisions relating to attachment in the Code.

Property which can be attached

Attachment is a legal term which refers to the action of seizing property in anticipation of a favourable ruling for a plaintiff who claims to owed money by the defendant. Decree Holder is Dominus litis(person to whom the suit belongs) and he h.as the right to choose the mode of execution from those available to him. Neither the Court nor the Judgement debtor can force or persuade him to choose a particular mode of execution. This can be referred from the case V. Dharmavenamma v. C. Subrahmanyam Mandadi.

In the process of attachment, the court at the request of the decree-holder designates specific property owned by the debtor to be transferred to the creditor or sold for the benefit of the creditor. Sections 60 to Section 64 and Rules 41-57 of Order 21 of CPC 1908, deals with the matter of attachment of property.

Section 60 CPC,1908 describes the property which can and cannot be attached while execution. Several types of property are liable for attachment and sale in execution of a decree like lands, houses or other buildings, goods, money, banknotes, checks, bills of exchange, hundis, government securities, bonds or other securities etc., and things on which he has a disposing power. There is express mention of particulars which shall not be liable for attachment or sale. The decree as mentioned in this section is only a money decree and it does not include a mortgage decree. Therefore, it is important that the property not only belongs to the judgement-debtor but also he has disposing power on it.

In M. Balarajan vs. M. Narasamma, it was held that the said house of the JUdgement-debtor was liable to be sold for execution of the decree as his contention of agricultural produce was declined. 

Section 61 grants partial exemption to agricultural produce- The state Government may by general or special order published in the Official Gazette declare any piece of agricultural land for the purpose until next harvest season for the due cultivation of land and support of the Judgement-debtor and his family, exempt that property from being attached or sold in execution of the decree.

Section 62 talks about seizure of property in case of dwelling house. No person executing under the code will enter the premises of a dwelling house after sunset and before sunrise. No door of such dwelling house can be broken without the knowledge of the Judgement-debtor. Where a woman resides in such house and she is not allowed to appear in public. The person executing has to give her a notice to be at liberty to withdraw and also reasonable time to do the same. Once she withdraws he has the power to enter the premises.

Section 63 says that where the property attached in execution of decree is going on in several courts then the final decision of the court of higher grade prevails and where the court are at same grades then the court where the case of attachment came first will hold a higher value.

Property which cannot be attached

Some kind of property which cannot be attached and sold in execution of a decree is expressly mentioned in Section 60 of the Code of Civil Procedure. Particulars like wearing apparel, cooking vessels, beds, tools of artisans, books of accounts, any right of personal service, wife and children, stipends and gratuities allowed to pensioners of the Government etc. and many more.

Modes of attachment

Rule 43 to Rule 54 of Order 21 lays down a proper procedure for attachment for movable and immovable property.

Order XXI Rule 54- The modes of procedure for attachment of immovable property initiates or starts with issuing a prohibitory order to the debtor and the public generally, this order will prevent the judgment-debtor from transferring the property to himself or anyone else or charging it. The judgment debtor shall attend the court on the date decided for deciding the terms of the proclamation of sale. Normally for immovable property, two copies of prohibitory orders are sufficient. But where the land is such that the revenue accrued from it is paid to the government, three copies of prohibitory order is prepared. In order to make the attachment lawful, the particulars given in the schedule attached with the order should be matched to be exactly the same with the details given in the schedules of the property given in warrant.

Furthermore, the warrant and the prohibitory orders along with the copies shall be submitted to the Nazir. The Nazir will then endorse the warrant and return it within a defined time before the Court. Where any person delegated by the Nazir completes the above-mentioned work of attachment of property, a separate document stating how the day and hour at which he did such an act has to be properly attached.

Warrant of Attachment of Land.Drum Beating charges- Any customary or usual practice will be carried out for proclamation of the order, and the copy of it will be affixed on a conspicuous part of the property as well as on the court. After this, the reader has to record a note stating the fact that all the required formalities dictated by law to be followed have been complied with. The presiding officer will then take charge of ensuring its truthfulness. The court also has the obligation to make sure that all the requirements or formalities for a legal attachment have complied with in order to prevent any sort of material irregularity as it might cause serious trouble and loss to the parties. The civil courts should also apply proper caution and care in the process of service of warrants of attachment before they take any action concerning the property.

When the property is movable property, which is not agricultural produce, then the attaching officer can seize the property and keep it in his custody. But on the other hand if the property seized is of a perishable nature or the cost of keeping it is likely to exceed its value the attaching officer can sell it immediately. If the attachment officer fails to sell such property by applying every means, he can at the instance of judgment-debtor or decree-holder or anyone having an interest in such property leave it in the custody of a respectable person in the village or place where it has been attached. The custodian will later be can be made liable for the inability to produce such property before the court, or for any loss or damage caused to it.

When the property is agricultural produce, a copy of the warrant of attachment can be affixed on the land on which such crops are grown, or where the produce has been cut or gathered, or on the threshing treading floor or fodder-stack.

Where the property to be attached is a negotiable interest which is not within the custody of a public officer, or deposited in the court, the process of attachment can be carried out through actual seizure.

Precept

The dictionary meaning of the word Precept is “ a general rule intended to regulate behaviour”, a writ or a command.

According to Section 46 Attachment can be made under percept, under which an interim attachment is provided to the decree-holder. The sections provided that the court which passed the order may on the request of the decree-holder, issue a precept to the court within whose jurisdiction the property of the judgement-debtor is lying to be attached to any property specified in the precept.

Thus, a precept aims at preventing alienation of property of the judgement-debtor not located within the jurisdiction of the court which passed the decree.

Garnishee order

Rule 46-A to 46-I of Order 21 outlines the procedure in case of garnishee orders. In a Garnishee order, the decree-holder seeks to reach money or property of the Judgement-debtor in the hands of a third party(another person). Then the third party may be ordered by the court to pay the judgement creditor the debt from him to the judgement-debtor. This type of exchange is valid.

A Garnishee is a person who is the debtor of judgement-debtor. He is that person who is under an obligation to pay his debt to judgement-debtor or to deliver any movable property to him. “Garnishor” is the one in whose favour the decree is passed i.e., decree-holder (judgement- creditor). He is the person who brings such proceedings to reach judgement’s debtor money or property held by a third party. A garnishee order helps the debt due by the debtor of the judgement-debtor to be available to the decree-holder without involving him in the suit.

Determination of attachment

Determination means the status of the attachment at a particular time. In times of cases where the property has been attached but later on the court passes an order dismissing such an execution, the court will direct the status of the attachment, i.e, whether the attachment will continue or discontinue to exist. If then the court fails to give clear direction it is considered implied that the attachment has been ceased.

Order XXI Rules 55-38 explains the circumstances under which the attachment is determined under the Code. 

1. Where the decretal amount is paid or is satisfied;
2. Where the decree is reversed or set aside;
3. Where the court highlights an objection against the attachment and makes an order for releasing the property; 
4. Where after the attachment the application for execution is dismissed;
5. Where the judgment holder withdraws the attachment;
6. Where the decree-holder fails to do what he was required to do under the decree;
7. Where the suit of the plaintiff is dismissed;
8. Where the attachment is ordered before the judgement and the defendant furnishes necessary security;
9. Where there is an agreement or compromise made between the parties;
10. Where the creditor abandons the attachment.

Private alienation of property after attachment

Section 64(1) states that a private alienation of property made after the attachment is void as against the claims enforceable under the attachment. Section 64(2) says clarifies that this section is not applicable in case of transfer of property in pursuance of a contract entered into before the attachment. This provision is inserted in the Code to stop any kind of fraud on decree-holders and to keep the interests of the judgement-creditors who are entitled to be satisfied out of the assets of the judgement-debtor. This provision in a way interferes with the rights of the owner in alienating his property and hence is construed strictly. However, since it is for the benefit of the creditor he can waive this benefit. A private transfer here means a voluntary transfer like sale, lease, gift, mortgage etc. the transfer directed by the court is not included in private transfer. Therefore a private transfer in contravention of Section 64 is not wholly void against all other transactions bit is void only against the claims enforceable under the attachment and only to the extent necessary to meet those claims.

Conclusion

In a civil suit, the decree-holder has the benefit of deciding the mode of execution of a decree passed by the court as against the judgement-debtor. The judgement-creditor can choose from the various provisions mentioned in the Code. He cannot be forced or persuaded to choose a particular mode by the court or any other person. Attachment is the first step in the process of execution and sale of the property will be carried out after the process of attachment. Sometimes, the sale can be proceeded with, without an attachment of the property as well. This does not make the sale irregular in nature. But naturally, the correct procedure to be followed is attachment followed by the sale of the property.

Attachment of Property, being one of the modes of execution of a decree recognises the right of the decree-holder. Various amendments have been carried out in the Code to protect the interest of both Judgement-debtor and judgement-creditor.

References

• http://www.aaptaxlaw.com/code-of-civil-procedure/section-63-64-code-of-civil-procedure-property-attached-execution-decrees-several-courts-private-alienation-property-void-section-63-64-of-cpc-1908-code-of-civil-procedure.html
• http://www.legalserviceindia.com/article/l422-Power-of-Indian-courts-to-issue-Garnishee-Order.html
• https://lawrato.com/indian-kanoon/cpc/section-46
• http://www.aaptaxlaw.com/code-of-civil-procedure/section-61-62-code-of-civil-procedure-partial-exemption-of-agricultural-produce-seizure-of-property-in-dwelling-house-section-61-62-of-cpc-1908-code-of-civil-procedure.html
• https://www.casemine.com/judgement/in/56ea70a5607dba369a6ee500

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 Shubhangi Agarwalfrom Symbiosis Law School, Pune

Abstract

Government of India introduced the additional 10 per cent reservations for economically backward classes in 103^rd Constitutional Amendment Act, 2019. The problem with this amendment is of 50% maximum limit for reservation as it may in turn violate the basic structure doctrine. Henceforth, the problem and challenges that have arisen due to the given amendment is being addressed in this paper. Through this research paper the researcher aims to understand the validity and requirement of reservation in India especially additional 10% reservation in India. The methodology adopted by the researcher is doctrinal methodology and using this methodology it has been found out that the amendment affects the equality principle, breaches 50% maximum limit for reservation and violates basic structure doctrine.

KEYWORDS: Amendment, Basic Structure Doctrine, Constitution, Equality Principle, Reservation

Statement of the problem

The pertinent question that is to be considered is that has the policy of reservation that has been continuing for over six decades now, and has been expanding, served the purpose of upliftment of the socially and educationally backward sections of the society or has it given rise to other forms of social evils, including animosity between the classes and further oppression of the reserved classes as a means of backlash against them. The present paper focuses on the constitutional validity of 103^rd Constitution Amendment Act, 2019 that introduces 10 percent reservation for economically backward classes.

Research question

• Whether the 103^rd Constitutional Amendment Act, 2019 violates the basic structure doctrine and effects equality principle?
• Whether 10% reservation for economically backward classes breaches 50% maximum limit for reservation?

Research gap

The Researcher through this paper tends to address the gap associated due to the introduction of 10 per cent reservation for economically backward classes with 103^rd Constitutional Amendment Act,2019 wherein the challenge of maximum 50 per cent reservation is debated. The legal challenge associated with the 103^rd Constitutional Amendment Act, 2019 is the basic structure doctrine challenge which is being addressed in this paper. The researcher also touches upon the equality principle and the excessive use of legislative power to address the gap brought in by the 103^rd Constitutional Amendment Act, 2019.

Research objective

The present paper aims to address the misunderstood necessity of 103^rd Constitutional Amendment Act, 2019 which introduced the additional 10 per cent reservations for economically backward classes in a country like India which already has a cap of maximum 50 per cent reservation. The constitutional validity of 10 per cent reservation for economically backward classes is being challenged in this paper by analysing the way it violates basic structure doctrine of constitution of India and violates equality as a whole. Through this paper the researcher tends to understand the validity and requirement of reservation in India.

Literature review

Article : Can the ten per cent quota for economically weaker sections survive judicial scrutiny – The Hindu Centre for Politics and Public Policy

Author : K. Ashok Vardhan Shetty           

In the given article the author traces the constitutional and legislative history of reservations, highlights the legal infirmities in the 103^rd Amendment, looks at different scenarios available before the Supreme Court, and analyses if a successful i “basic structure” challenge can be made out in the given case. All these years, the “50 per cent ceiling” rule was the only thing that had stood as the major challenge in reservation system and thus the author in this article analyses this aspect of reservation in detail.

Article : Reservations in India – A constitutional Perspective

Author : Pranav Jitendra Divgi

The author in the article briefly highlights the major questions of law which subsequently arose before the Supreme Court in the Indra Sawhney (Mandal Commission) case along with the amendments under Article 16 of the Indian Constitution. The author discusses the past amendments under Article 16 of the Indian Constitution, the opinion of the apex court regarding the same and the eventual impact upon the society at large. The author also encapsulate the very essence of the landmark judgements on reservation which have had a deep impact upon Indian Society.

Book name : Reservation and Private Sector, Quest for Equal Opportunity and Growth

Authors : Sukhadeo Thorat, Aryama, Prashant Negi

The book brings in views of experts from different fields about reservation and private sector. The book reflects the contemporary thinking of Indian Society on a vital and contentious issue of private sector reservation. It systematically ideals with discriminations associated with caste and systematic exclusion and multiple deprivations suffered by Dalits. The book raises certain questions on debate of reservation.

1. Are the concerns about discrimination related only to equity or they also involve economic and political costs?
2. Does reservation adversely affect economic efficiency and compromise merit?
3. Are the principles of equity and cannon of efficiency always at odds with each other?

“We must begin by acknowledging the fact that there is complete absence of two things in Indian society. One of these is equality. On the social plane, we have in India a society based on the principle of graded inequality which means elevation for some and degradation for others. On the economic plane, we have a society in which there are some who have immense wealth as against many who live in abject poverty”.

  Dr B.R. Ambedkar[1

Introduction

In Indian Constitutional law, Reservation is taken into account to be a form of affirmative action whereby sure share of seats are reserved within the public sector units, union and state civil services, union and state government departments and altogether public and personal educational institutions except within the spiritual or linguistic minority educational institutions, for the socially and educationally backward communities and also the regular castes and tribes United Nations agency are inadequately painted in these services and establishments.
Its been years since India got independence, but still current system require seat for a few explicit sections of the society.     
There exist completely different castes of individuals in India like schedule castes, schedule tribes, other backward classes and upper castes citizens called general category citizens. Except the people belonging to general category i.e. the upper caste citizens, all the other residing classes in India are entitled for the advantage of reservations.           
The aim of a civilised society ought to be to secure dignity of each individual. The absence of equal opportunity in all walk of social life is denial of equal status and opportunity. There can’t be any dignity without equality of status and opportunity. With this objective the reservations found its way. However, in the current times, this policy is losing its objective for the aim it had been created.       
The legal history of reservations in India portrays that from 1951 onwards whenever the Supreme Court gave an adverse ruling on any aspect of reservations in India, the Parliament then thereby would amend the Constitution to reverse or overcome the inconvenient judicial pronouncements. One of the steps taken is the 103rd Amendment 2019 that aimed toward overcoming the Supreme Court’s rulings that economic reservation can’t be sole criterion for reservation and also the total reservations shouldn’t be more than 50 percent.

The Constitution (103^rd Amendment) Act, 2019², has amended two fundamental rights that is  Article 15 and Article 16 of the Constitution of India[2]. These two articles are the bedrock of reservation in areas related to education and government jobs. By adding two new clauses to Article 15 and 16 of Indian constitution the state is now empowered to provide a maximum of 10 per cent reservation for “economically weaker sections” of citizens. This in turn increases the total reservations over and above the existing scheme to 59.50 per cent.

Article 15 of Indian Constitution, prohibits discrimination on the grounds of race, religion, caste, sex or place of birth. The amendment aims to provide reservation to those who do not fall in 15(5) and 15 (4) (effectively, SCs, STs and OBCs) i.e. economically weaker sections for admission to educational institutions other than the minority educational institutions referred to in clause (1) of article 30.

Article 16 of Indian Constitution prohibits discrimination in employment in government office. With the amendment Article 16 (6) is added to provide reservations to people from economically weaker sections in government posts.

Henceforth, the “economic weakness” shall be decided on the basis of “family income” and other “indicators of economic disadvantage.”

The income limit of Rs. Eight lakhs and the asset limits prescribed for determining economic backwardness are the same as the limits fixed for determining the ‘creamy layer’ for OBC. This essentially means that the 103^rd Amendment practically removes the difference between the OBC-NCL and the “EWS other than SC, ST and OBC-NCL”. This would lead to treating unequals equally.

The Supreme Court has consistently ruled that for reservation to be reasonable and not defeat the main right to equality, the total reservations should not be greater than 50 per cent. However, this ‘50 per cent ceiling’ stands effectively breached by the latest Constitution amendment.

History of reservation & it’s continued existence

Reservation was introduced long before Independence for backward classes in areas including Presidency areas and Princely states. After the Constitution of India came into force in 1950i, the Centre as well as the States implemented reservations for SC and ST while several States implemented reservation for backward classes.  The major changes were made after Independence in caste system when Mandal Commission came into picture and it assessed the socially educationally backward classes of citizens.

Mandal Commission was established in leadership of B.P. Mandal in 1979. This commission have made identification of ‘socially and educationally backward classes of citizens’. He made determination on the bases of factors like social status, economic consideration and educational criteria. The Mandal Commission identified around 3,743 communities (including both Hindu and non-Hindu) as “Other Backward Classes” which constitutes nearly 52 per cent of the population of India. However, in deference to the rulings of the Supreme Court limiting the total reservation to 50 per cent, the Commission recommended only 27 per cent reservation in jobs in Central Government in favour of OBC in addition to the 22.50 per cent reservation already existing in favour of SC and ST. This took the overall quota to 49.5%. This was immediately challenged before the Supreme Court.

Constitutional validity challenge

The legal challenge to the validity if the 103^rd amendment is a ‘basic structure challenge’.

Certain structural principles form the core or the essence of the Constitution and give it a particular ‘Identity’ such as democratic form of government, republican form of government, federalism, equality, freedom, secularism, independence of the judiciary, power of judicial review and so on. This is given by the doctrine of basic structure and thus it can not be amended as it would destroy the identity of the constitution itself.

In the landmark case of Kesavananda Bharati v. State of Kerala[3] , the Supreme Court ruled that the Parliament’s power to amend the Constitution under Article 368 is not absolute and even a Constitutional amendment can be struck down if it has the effect of destroying or abrogating the ‘basic structure’ of the Constitution.

In September 1991,an Office Memorandum issued by the then P.V. Narasimha Rao government reserved ten percent of posts for ‘other economically backward sections’. This decision was struck down by the Supreme Court in Indra Sawhney v. Union of India[4]. In Indra Sawhney v. Union Of India and Ors. , the court went into the legality of the quotas, elaborately analysing the concept of backwardness. As per, Dr. BR Ambedkar, the classes of citizens for whom reservations were to be made are those “communities which have not had so far representation in the State.” One of the reasons for the quota limit as 50% is explained in Indra Sawhney where the Constitution was seen as enabling “appropriate representation” and not “proportionate representation”.

Some of the important decisions taken in Indra Sawhney case with respect to reservation is highlighted as below :
• It upheld the 27 per cent reservation for OBC subject to the “creamy layer” being
excluded.
• It quashed the 10 per cent reservation for economically backward sections and ruled that a backward class of citizens cannot be identified only and exclusively with reference to economic         criteria.
• It held that the reservations under carried-forward or backlog reserved vacancies
shouldn’t exceed 50 per cent of the appointments every year
• It ruled that reservations can be made in a service or category only when the State is satisfied that representation of backward class of citizens therein is not adequate.

 The Hon’ble Court, in the case of M. Nagaraj v. Union of India & Ors.[5] upheld the Constitutional validity of Article 16 (4A) and the proviso to Article 335 and reiterated that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, such as inadequacy of representation, backwardness, and overall administrative efficiency are some of the constitutional requirements without which the essence of equality of opportunity in Article 16 would collapse. It has also been stated that be it reservation or evaluation, excessiveness in either form would result in violation of the constitutional mandate. Thus, the 50% ceiling limit of reservations has been engrafted as a part of the basic structure of the Constitution’s equality code.

Critical analysis

Reservation – non-required necessity

 “Give a man a fish; you have fed him for today. Teach a man to fish; and you have fed him for lifetime”.

The Constitution of India redresses the historic injustices and correct the manifest imbalance in matters of higher education and public employment by delineating an “equality code”[6]. Article 14 guarantees equality before the law and the equal protection of law for everyone.[7]

In M.R. Balaji v. State of Mysore[8] , the Supreme Court stroke down the 68 per cent reservation made under Article 15 (4)[9] for admissions to medical and engineering colleges in the (then) State of Mysore, and instead held that the reservation should not be more than 50 per cent. The logic of the ‘50 per cent ceiling’ for reservations in M.R. Balaji case was based on the argument that the exception cannot override the rule. If Article 16 (4) is not an exception to Article 16 (1), then there is nothing to stop the State from breaching the ‘50 per cent ceiling’ for reservations unless the total population of the under-represented classes itself is less than 50 per cent. However, this is not the case in India.

However, in State of Kerala v. N.M. Thomas[10], the Supreme Court ruled that Article 16(1), being a facet of the doctrine of equality, permits reasonable classification of all persons who are similarly situated with respect to the law similar to Article 14. In other words, Article 16(1) itself permits reservations and preferential treatment even without Article 16(4) of Indian constitution.  Article 16(4) is not an exception to Article 16(1) and only seeks to make explicit what is already implicit in Article 16(1).

However, the other argument holds that Articles 15(4) and 16(4), providing for reservation in education and public employment, comes as ‘exceptions’ to the equality and non discrimination provisions of Articles 15 (1) and 16(1) and so violating the ‘50 per ceiling’ results in reverse discrimination.

In short, the Supreme Court’s ruling in Indra Sawhney represents a middle path between M.R. Balaji and N.M. Thomas. By reaffirming the ’50 per cent ceiling’ rule, It struck a balance between formal equality and substantive equality.

Similar past instances

The Government of India issued an executive order in September 1991 reserving 10 percent of the vacancies in civil posts and services for other “economically backward sections of the people who are not covered by any of the schemes of reservation”. This was done to appease the agitating upper castes which were not satisfied with the implementation of reservations for Other backward classes. This led to increase in the total reservation to 59.50 per cent, considerably in excess of the ceiling of 50 per cent fixed by the Supreme Court. This 10 per cent reservation was identical to the motive of 103^rd Amendment except that the 1991 order did not have the backing of a Constitution amendment.

On similar situation it is pointed out that when the Government of Gujarat issued an Ordinance in 2016, in response to the Patidar agitation, providing for 10 per cent reservation in higher education and public employment for “economically weaker sections of unreserved categories with annual income below Rs.6 lakhs”, the same was quashed by the High Court of Gujarat (2016) based on the Indra Sawhney precedent. When the State Government relied on the “extraordinary situation’ loophole in Indra Sawhney for breaching the “50 per ceiling” rule for reservations, the High Court of Gujarat rejected this contention, and rightly so, by stating that no such ‘extraordinary situation’ was made out in the case of reservation for the economically weaker sections.

Basic structure doctrine challenge

The vires of a Constitutional Amendment is tested against the touchstone of the Basic Structure of the Constitution.[11]The nature of the Basic Structure is such that it cannot be damaged or destroyed.[12] Thus, the present constitutional amendment is unconstitutional in nature as :

• The Amendment violates the principle of equality
• The Amendment breaches the 50% ceiling on reservations, and
• The Amendment destroys substantive democracy

Amendment violates principle of equality

The principle of Equality is an essential feature of the Basic Structure.[13] The various facets of
the principle of equality are enshrined in Articles 14, 15, 16, 17, and 18 of the Constitution of India, 1950. Any alteration of this ‘Equality Code’ must stand the widely accepted tests of ‘Identity’ and ‘Width’ as laid out in the M. Nagaraj case.[14] These tests were developed to ensure that the balance between equality in law and equality in fact is maintained whenever an Amendment is formulated in regard to reservations.[15]

Amendment damages constitutional identity

The Identity Test as laid out in M. Nagaraj stipulates that to alter the identity of the principles constituting the Basic Structure is to abrogate the Basic Structure itself.[16] Thus, any alteration in the existing structure of the Equality Code would be tantamount to violating the Basic Structure itself.

Violation of equality principle : There exist two fundamental approaches to Equality: formal equality and substantive equality. Formal equality or “anti-classification” regards gender, race, ethnicity, or other status (personal characteristics) as irrelevant.[17] This approach presupposes that it is both desirable and possible to abstract an individual from these aspects of her identity and treat her entirely on “merit” (personal qualities).[18]

Substantive equality recognizes that these characteristics can be valued aspects of an individual’s identity as these “personal characteristics”[19] can affect a person’s “personal qualities”.[20] It can thus be inferred that formal equality must be conceived on an individual basis whereas substantive equality must be conceived on the basis of group identity. For formal equality to prevail, substantive equality must be guaranteed. Therefore, the Constituent Assembly sought to address the historic injustices faced by an individual by virtue of their group identity.[21]

One of the means devised by the Constituent Assembly towards the end of resolving ‘individual discrimination’ by ameliorating  ‘group inequalities’ was Articles 15 and 16 of the Indian Constitution.[22] Articles 15 and 16 guarantee substantive equality by using the  ‘social and educational backwardness’ of a group.[23] Thus, the intention of the Constitutional makers never contemplated inclusion of individual metrics for guaranteeing formal equality within the scheme of the Equality Code.

In M.G. Badappanavar v. State of Karnataka (2000)³³, the Supreme Court ruled that “equality is the basic feature of the Constitution and any treatment of equals as unequals or any treatment of unequals as equals would violate the basic structure of the Constitution”. Therefore, the income limit for determining economic backwardness should be lower and should not be the same as that for determining the ‘creamy layer’ for Other backward classes.

Amendment is an excessive use of legislative power

The width test laid down in M. Nagaraj similarly laid down a standard to ensure that constitutional requirements have not been destroyed by the entry into force of the Constitutional Amendment.[24] The Width Test in M. Nagaraj acts as a corollary to the Minerva Mills judgement[25], barring the unlimited constituent powers of the Parliament.

The present 103^rd Amendment was preceded by a Statement of Object and Reasons which opined that reservations solely on the criteria of economic backwardness was in furtherance of the mandate of Article 46.[26] The Amendment, in particular, excludes the Scheduled Castes, Scheduled Tribes and Other Backward Classes from availing the benefit from the said Amendment thereby rendering a discordance between the Object and the Clause.[27] This exceeds the ‘width’ of the power conferred on the Parliament. Hence, the impugned Amendment violates the principle of Equality and also fails the twin tests of Basic Structure.

Amendment breached the 50% ceiling on reservations

In order to balance the formal equality and substantive equality, the 50% Rule was envisaged. This rule stipulates that the reservations provided cannot exceed 50% of the total available opportunities or reservations. However, The 50% Rule forms part of the Basic Structure, and the present Constitutional Amendment is violative of said Rule.

The 50% rule regarding reservation has been within the consciousness of the constitution makers as can be seen in discussions of the Constituent Assembly Debates. B.R. Ambedkar expounded that the reservation should be for the minority of seats and that there has to be a balance exercised between the needs of the minority communities and formal equality.[28]

Furthermore, in Indra Sawhney v. Union of India, it was held that “Just as every power must be exercised reasonably and fairly, the power conferred by Clause (4) of Article 16 should also be exercised in a fair manner and within reasonably limits – and what is more reasonable than to say that reservation under Clause (4) shall not exceed 50% of the appointments or posts, barring certain extra-ordinary situations as explained hereinafter”.[29]

Similarly, it can be understood that Article 16(4) is an exception to the rule of Article 16(1).[30] The rule is to ensure equality of opportunity in public employment. The exception to this rule is the power of the State to provide for special reservations for backward classes who lack representation. Given that an exception cannot obliterate the rule, the reservation for backward classes cannot exceed 50%. Furthermore, in Jarnail Singh v. Lachhmi Narayan[31], backward classes has been understood to mean Scheduled Castes, Scheduled Tribes, and Other Backward Classes.

The Apex Court has held at various instances that reservations have to be balanced with the formal right to equality.[32] That balance gets disrupted if the 50% ceiling is exceeded.[33]In addition to that, the ceiling limit of 50% has gained Constitutional imprimatur in Article 16 (4)(b).[34]  In M. Nagaraj v. Union of India, the 50% ceiling limit was made part of the Width Test and termed as a constitutional requirement without which the structure of Article 16(1) of the Indian Constitution would collapse.[35]        
Hence, 50 per cent Rule is part of Basic Structure as it acts as a balancing factor between formal equality and substantive equality. It preserves the spirit of Equality our Constitution furthers through its Constitutional scheme.

Given that the 50 percent rule is part of the basic structure, thus the present Constitutional Amendment breaches the 50 percent rule by providing for a 15% reservation over and above the existing 49% reservation. There are no compelling reasons which have been provided to justify the necessity for such a reservation.[36] In other words, as the end goal of sub clause
(6) of Article 15 and 16 is to provide for reservations which forms part of the substantive equality, it has to be balanced against the principle of formal equality.

Amendment grants reservation to well-represented classes

It is a two fold mischief. Firstly, the “upper castes” (hereinafter unprotected groups) who do not have grounds to claim reservation will receive the benefit from the same. Secondly, the protected groups even when competing in the unreserved category in later generations, which” is the ultimate aim of reservation, will never have complete access to all the seats as a particular percentage of seats will be specifically be kept out of their reach and in the hands of the unprotected groups. This is essentially damaging the concept of equal moral membership and the principle of substantive democracy.

The Constitutional Amendment destroys the Basic Structure doctrine on the various grounds of violating the Equality Code, breaching the 50% ceiling on reservations, and affecting substantive democracy in the nation.”

“The latest case along with other cases that have been filed to challenge the constitutional of the Constitution (One Hundred and Third Amendment) Act, 2019, which introduces reservations for Economically Weaker Sections (EWS). Specifically, it provides  for 10% reservation in government jobs and educational institutions for persons falling within the economically backward sections in the unreserved category and it violated the constitutional validity and breaches 50 per cent rule along with violation of basic structure doctrine is still pending in the court of law.[37]”

Arbitrariness

Family income criteria has no relation with the goal of reservation. This is the last possible attack on the grounds of arbitrariness. In other words, reservation is not the remedy to the problem of poverty but reservation is about compensating for social and institutional barriers to representation. This makes mandating reservation on economic disadvantage arbitrary.

Recommendations

With the introduction of 10 percent of reservation for economically weaker sections in India, the increased reservation has gone over and above to 59.5 per cent. 7.5%, 15%, and 27% quotas are reserved for Scheduled Tribes, Scheduled Castes, and Other Backward Classes respectively.”

With the 103^rd Amendment Act, 2019 now at present only 40.5% of seats will be allocated in educational institutions jobs based on the merit of candidates. This increase in reservation has compromised on the merit quota which are more deserving candidates in country. The merit quota is not reserved – not even for the general. It is open to all candidates including Scheduled Caste, Scheduled Tribes, Other Backward Classes, and the General category – who qualify on merit (not on the basis of reservation). This does not do justification to those who deserve and should be given opportunity on the basis of their hard work and merit.

Thereby following points are recommended in respect of reservation in India :

• Reservation can be considered as one of the methods for social upliftment. There are many other methods like providing scholarships, funds, coachings, and other welfare schemes to uplift the economically weaker and socially backward classes in India.
• Reservation based entirely on economic criteria is not a perfect solution, wherein family income is one of the criteria along with asset valuation.
• The need of the hour is to fix a time period for reservation system rather than extending it to eternity.
• Reservation if being given should be limited to the quota as presrcibed of 50 per cent. The adjustment of economically weaker section in reserved category should be made within 50 per cent reservation quota and should not be exceeded. This would ensure in giving fair and equal opportunity to meritorious candidates as well.”
• If it is deemed necessary that 27% reservation is to be sustained then it should be done on the basis of fulfilling the minimum criteria of marks which every student, irrespective of the category they belong to has to secure. This will prevent dilution of academic standards. If the quota seats are not filled then, the remaining seats should be made open to the general category, after a lapse of particular period of time. This will prevent wastage of seats and allotting it to deserving candidates.
• The dissemination of primary education would be fair and universal by making the education till the age of 15 as mandatory.
• Reservation benefits, if provided, should be restricted to a maximum of two children per family irrespective of the number of children in a family. This in turn would help in regulating the representation of all the classes giving way to the principle of equality.
• The other way could be restricting the reservation system to one generation only in a family.

Conclusion

The system of reservation is not entirely based on casteism and thus divides the society leading to discrimination and conflicts between different categories. It is the converse of a communal living. Reforms in reservation system is the need of the hour. The reservation system has mostly led to a conflict between the reserved and the unreserved categories of the country. Observing from a neutral perspective it can be stated that although reservation is needed for the country but at the same time there is a need to create a system which supports affirmative action more than appeasement politics. Any negative aspect of reservation should not serve as a hurdle for the development of rapidly growing economy of India.”

The present amendment is violative of the principle of Equality as it damages the constitutional identity of the Articles enshrined in the Equality Code and the Parliament has acted has made excessive use of their legislative powers to enact this Amendment. Furthermore, the Amendment violates the 50% Rule which is part of the Basic Structure. Also, the Present Amendment destroys the principle of Substantive Democracy by granting reservation to well represented classes.

Thus, the 103^rd Amendment has the effect of enhancing and cementing the representation of those who are already over-represented in the public services relative to other population, who own a disproportionate percentage of the country’s wealth. This does violence to the concept of equality as is commonly understood and changes it beyond recognition and fails the “identity test” prescribed in M. Nagaraj.  

A Constitutional amendment can be struck down by the Supreme Court if it has the effect of destroying or abrogating the “basic structure” of the Constitution as given in Preamble. ”

References

Cases

• Kesavananda Bharati v. State of Kerala1973 SC 1461
• Indra Sawhney v. Union of India AIR 1993 SC 477
• Nagaraj v. Union of India & Ors.(2006) 8 SCC 212,
• Ramana Dayaram Shetty v. The International Airport Authority of India, 1979 AIR 1628
• Ashoka Kumar Thakur v. Union of India, 1972 (1) SCC 660.
• C. Vasanth Kumar & Another v. State Of Karnataka, AIR 1985 SC 1495
• R. Balaji v. State of Mysore 1963 AIR 649
• State of Kerala v. M. Thomas 1976 AIR 490
• Minerva Mills v. Union of India, AIR 1980 SC 1789,
• Indira Gandhi v. Raj Narain, AIR 1975 SC 2299.
• The General Manager, Southern Railway v. Rangachari, 1962 AIR 36,
• A. Rajendran v. Union Of India & Ors., 1968 AIR 507,
• Devadasan v. The Union Of India and Anr., 1964 AIR 179,
• State Of Punjab v. Hiralal & Ors., 1971 AIR 1777
• Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396
• Youth for Equality v. Union of India, 11 January 2019

Articles

• Pranav jitendra divgi, reservations in india – a constitutional perspective, The World Journal on Jurist Polity, February 2017
• Sandra Fredman, Substantive Equality Revisited, Volume 14, OXFORD I.CON, 712, 732-733, (2016)
• Sandra Fredman, Discrimination Law (2nd ed., 2011).
• Sunil Kumar Jangir, Reservation, Reservation Policy and Indian Constitution in India, American International Journal of Research in Humanities, Arts and Social Sciences, 3(1), June-August, 2013
• Ashok Vardhan Shetty , Can the ten per cent quota for economically weaker sections survive judicial scrutiny, The Hindu Centre for Politics and Public Policy

Book

• Sukhadeo Thorat, Aryama, Prashant Negi ; Reservation and Private Sector, Quest for Equal Opportunity and Growth

Online sources

• Constituent Assembly Debates, Constituent Assembly of India Debates (Proceedings) – Volume VII, November 30, 1948
• Ambedkar, B.R. 1949. “Speech at the Constituent Assembly of India”, published at Indian National Congress website, November 25.
• Parliament of India, Constituent Assembly Debates, Vol. VII, 30th November 1948 (speech of B.R. Ambedkar),
• The Economic Times, Reservation needs to be on socio-economic criteria: Major General (Retd) SR Sinho)
• SCC Online
• Manupatra

Endnotes

[1] Ambedkar, B.R. 1949. “Speech at the Constituent Assembly of India”, published at Indian National Congress website, November 25. [https://www.inc.in/en/media/speech/speech-at-the-constituent-assembly-of-india].

[2] Article 15 of Indian Constitution : Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth                 :
1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of      them.
2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to
any disability, liability, restriction or condition with regard to— (a) access to shops, public restaurants,
hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of
public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
3) Nothing in this article shall prevent the State from making any special provision for women and children.
4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision
for the advancement of any socially and educationally backward classes of citizens or for the Scheduled
Castes and the Scheduled Tribes.
5) Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making
any special provision, by law, for the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to
their admission to educational institutions including private educational institutions, whether aided or
unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30. Article 16 of Indian Constitution : Equality of opportunity in matters of public employment.—
1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the                State.
2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of
them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or
classes of employment or appointment to an office under the Government of, or any local or other
authority within, a State or Union territory, any requirement as to residence within that State or Union
territory prior to such employment or              appointment.
4) Nothing in this article shall prevent the State from making any provision for the reservation of
appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is
not adequately represented in the services under the   State.
(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters
of promotion, with consequential seniority, to any class or classes of posts in the services under the State
in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not
adequately represented in the services under the          State.
(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year
which are reserved for being filled up in that year in accordance with any provision for reservation made
under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or
years and such class of vacancies shall not be considered together with the vacancies of the year in
which they are being filled up for determining the ceiling of fifty per cent. reservation on total number
of vacancies of    that         year.
5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office
in connection with the affairs of any religious or denominational institution or any member of
the governing body thereof shall be a person professing a particular religion or belonging to a particular
denomination.

[3] Kesavananda Bharati v. State of Kerala 1973 SC 1461

[4] Indra Sawhney v. Union of India AIR 1993 SC 477

[5] M. Nagaraj v. Union of India & Ors.(2006) 8 SCC 212

[6] Articles 14 to 18 of the Constitution of India comes under the sub-heading “Right to Equality”

[7] Article 14 of the Constitution of India

[8] M.R. Balaji v. State of Mysore  1963 AIR 649

[9] Article 15 of Indian Constitution, Bare Act

[10] State of Kerala v. N.M. Thomas 1976 AIR 490

[11] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

[12] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461

[13] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461; Minerva Mills v. Union of India, AIR 1980 SC    1789, Indira Gandhi v. Raj Narain, AIR 1975 SC 2299.

[14] M Nagaraj and Ors. v. Union of India, AIR 2007 SC 71

[15] Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396

[16] M Nagaraj and Ors. v. Union of India, AIR 2007 SC 71

[17] Sandra Fredman, Substantive Equality Revisited, Volume 14, OXFORD I.CON, 712, 732-733, (2016)

[18] Sandra Fredman, Discrimination Law (2nd ed., 2011).

[19] Sukhnandan Thakur v. State Of Bihar And Ors, AIR 1957 Pat 617, Virendra Singh Varma v. Additional Director of Agriculture, U.P., AIR 1960 All. 647

[20] Sandra Fredman, Discrimination Law (2nd ed., 2011)

[21] Parliament of India, Constituent Assembly Debates, Vol. VII, 30th November 1948 (speech of B.R. Ambedkar), http://parliamentofindia.nic.in/ls/debates/vol7p16b.htm.

[22] Parliament of India, Constituent Assembly Debates, Vol. VII, 30th November 1948 (speech of Chandrika Ram), http://parliamentofindia.nic.in/ls/debates/vol7p16a.htm.

[23] Indira Sawhney v. Union of India, AIR 1993 SC 477.

[24] M Nagaraj and Ors. v. Union of India, AIR 2007 SC 71

[25] Minerva Mills v. Union of India, AIR 1980 SC 1789

[26] The Constitution (one hundred and third amendment) Act, 2019

[27] Constituent Assembly Debates, Constituent Assembly of India Debates (Proceedings) – Volume VII, November 30, 1948,  https://cadindia.clpr.org.in/constitution_assembly_debates/volume/7/1948-11-30

[28] Constituent Assembly Debates, Constituent Assembly of India Debates (Proceedings) – Volume
VII, November 30, 1948, https://cadindia.clpr.org.in/constitution_assembly_debates/volume/7/1948-11-30

[29] Indira Sawhney v. Union of India, AIR 1993 SC 477

[30] M. R. Balaji And Others v. State Of Mysore, 1963 AIR 649

[31] Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396.

[32] The General Manager, Southern Railway v. Rangachari, 1962 AIR 36, M. R. Balaji And Ors. v. State Of
Mysore, 1963 AIR 649, C. A. Rajendran v. Union Of India & Ors., 1968 AIR 507, T. Devadasan v. The Union
Of India and Anr., 1964 AIR 179, State Of Punjab v. Hiralal & Ors., 1971 AIR 1777.

[33] Indira Sawhney v. Union of India, AIR 1993 SC 477.

[34] Indian Constitution. article16, cl. 4-B.

[35] M Nagaraj and Ors. v. Union of India, AIR 2007 SC 71

[36] M Nagaraj and Ors. v. Union of India, AIR 2007 SC 71; Indira Sawhney v. Union of India, AIR 1993 SC 477.

[37] Youth for Equality v. Union of India, 11 January 2019

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This article has been written by Nandini Tripathy.

The internet is no longer a prerogative of the well-to-do. With reducing data charges and a greater outreach, the internet has made its way to the remotest corners of India and the world. While digital connections have enabled individuals and organizations to straddle wider expanses in a shorter span of time, the digital paradox is the genesis of this same internet as a countervailing force that’s limiting its potential. Wondering what this countervailing force is? Cybercrimes! The widespread penetration of the internet and the availability of the massive loads of personal and confidential data in digital form has given cyber conmen greater leeway to utilize their unscrupulous intelligence to execute more sophisticated cybercrimes.

The Progress towards a “Digital India” – India’s Digital Saga

Our decent Prime Minister, Shri Narendra Modi, has consistently been a solid promoter of a “Computerized India”. He has executed a few stages for a carefully dynamic country. The Indian computerized adventure is bejewelled by a few worthwhile endeavours and examples of overcoming adversity. For example, India’s teledensity presently remains at 82.93% according to most recent refreshed figures and the country teledensity has additionally demonstrated an amazing increment to 50.63%. The Government is forcefully progressing in the direction of giving fast web availability to 2.5 lakh gram panchayats through Bharat Broadband Network Limited (BBNL) to fuel the fantasy of a ‘Carefully Connected and Empowered India’. To give web access to all residents, BSNL is introducing Wi-Fi hotspots at a few significant open places, for example, the Taj Mahal, Haridwar, Sun Temple (Konark), Ajmer-Dargah Shareef and considerably more.

While there have a few occasions of Luddites and others harbouring backward mindsets castigating such advanced activities, this was the truly necessary advance to place India in the worldwide spotlight as far as computerized development. Be that as it may, a carefully dynamic country additionally calls for hearty advanced security. All things considered; the most carefully propelled countries are regularly the casualties of the gravest cybercrimes. Furthermore, being the nation with one of the world’s swiftest developing populace and economy, India needs to situate itself such that it can viably battle all endeavours of assault, undercover work, and damage of basic advanced systems. In this manner, the means towards digitization must be taken as one with the essential strides to foresee, relieve and avert cybercrimes and digital dangers. Furthermore, the onus of keeping up computerized security not simply lays on the pioneers initiating the country or those running an association be that as it may, on each person, who is a piece of this advanced world.

The Indian Cyber Security Status

As far back as its advanced change has picked up pace, India has been at the focal point of digital assaults executed by cybercriminals, hacktivists and for the most part non-state on-screen characters. According to Cherian Samuel, a Research Fellow in the Strategic Technologies Center at the Institute for Defense Studies and Analyses in New Delhi, such non-state on-screen characters who have the help of the typical suspects have been generally seen as associated with digital undercover work by breaking into government systems while the record-breaking cybercriminals are being sustained by the consistently expanding Indian Digital scene. He has likewise discovered that Indian systems are as a rule progressively focused by ‘energetic programmers’ and hacktivists who are a piece of the bigger unknown munititions stockpile of programmers.

The year 2017 saw an unequalled high of digital assaults and fakes looked by Indian organizations, as indicated by the Global Fraud and Risk Report from Kroll. Because of the high estimation of by and by recognizable data (PII), online business and banking parts have more terrible hit by such digital assaults. Ransomware is a significant worry for India, particularly the Indian Government, as they are frequently the hapless casualties of digital crooks who take significant passwords and assume responsibility for gadgets.

The ongoing mayhem about the plausibility of the biometric subtleties of scores of residents falling under the control of private gatherings left the whole country in a condition of stun. Although the Unique Identification Authority of India (UIDAI) has discredited such claims of information rupture made by a media house, this open frenzy has driven them to actualize more grounded firewalls, for example, virtual IDs and face acknowledgment for information assurance. The most widely recognized examples of digital assaults at associations have been email-based phishing assaults and afterward infection/worm assaults. An ongoing review shows that the three most basic focuses for digital hoodlums are client records, worker records, and competitive innovations. Contrasted with the 57% overall figure, about 80% Indian respondents said they felt themselves powerless against email-based phishing assaults, with other significant cybersecurity concerns being information erasure, information adjustment and infection/worm assaults.

What constitutes a Cyber Crime?

• Damaging computer source documents – Section 65 IT Act
• Electronic publication/transmission of obscene content – Section 67 IT Act
• Violation of privacy/confidentiality – Section 72 IT Act
• False publishing of Digital Signature Certificate – Section 73 IT Act
• Obtaining Digital Signature Certificate or license by falsification/suppression of fact – Section 71 IT Act)
• Any loss/damage to computer utility/resource – Section 66 (1) IT Act
• Unethical Hacking – Section 66 (2) IT Act
• Inability to comply with the orders of Certifying Authority – Section 68 I T Act
• Any illicit access or attempt to access a protected computer system – Section 70 IT Act
• Failure to help in decrypting any information as intercepted by a Govt Agency – Section 69 IT Act―CT Bureau

The innovation scene has been changing quickly, with changes over the most recent few years being generally exceptional and eccentric. A portion of the game-changing advancements that developed in this period incorporate cloud, huge information, versatile and web-based life, which offered new abilities and advantages for organizations, yet in addition presented new dangers. With broad appropriation, these advancements can possibly cut an opening into the ensured limit of endeavours and put delicate data in danger. In that capacity innovations keep on changing at a quickened pace, the related dangers could maybe increment in geometric movement.

Today, digital culprits are all around subsidized, persevering, refined and internationally planned. Their degree of information and the comprehension of new advancements overrides most others. This, combined with organizations attempting to coordinate their frameworks and procedures with new advances and stages, further expands the zones helpless against assaults.

The methodology of cybercrime was portrayed by utilization of Trojans or worms, stunts, keyloggers, phishing and adware. The software engineers’ attack vector was on a very basic level equivalent to the military strategy including ‘mass shelling or submersion assaulting’. This was used by various countries during the World War II, where a colossal number of unguided bombs would be dropped on the foe soil with no specific target. Software engineers used a comparative system and sought after the dominant part for even little gains per hit as for them there is no cost per ambush. With the turn of the decade and with progressively present-day computerized weaponry accessible to them, the software engineers turned their accentuation on dynamically compensating targets. As opposed to hurling their net around for little fish, they started seeking after the enormous whales. Ambushes on focus budgetary establishment, advanced unfaltering risks, ransomware attacks using social structuring and DDoS attacks using botnets made from the snare of things (IoT) devices have now wound up being the sort of the period. The cybersecurity controls sent have moreover created in the latest decade as the care among the affiliations has extended. As opposed to focusing on ‘shirking’ after the scene, the accentuation is directly on separating the ambushes consistently and responding to them in an appropriate manner.

Two of the key characteristics of the web are the tremendous number of customers and the borderless thought of the Internet, where an exhibition in one territory infiltrates to other far away landmasses, every so often inside minutes. These characteristics in like manner show that business can be driven speedier without physical travel or a physical proximity, with quicker responses transversely over colossal detachments, and possibly influence an overall gathering of onlookers. While this mechanical advancement familiar inexhaustible points of interest with society, the disadvantage was not far behind. The movements made by enrolling and frameworks organization have indicated another condition in which people dynamically amass in the web to interface socially and fiscally, anyway these affiliations also have given an ideal. accommodating stage for the execution of bad behaviours. The characteristics of the web have not quite recently given a completely unique class of centres for bad behaviour, yet furthermore have provoked an extension in the amount of computerized able individuals with a readied approach to do infringement that have expansive impact.

Given that the usage of advancement in the present business condition conveys new risks to the fore, using old courses of action likely won’t be the suitable reaction. New risks require new measures. There are novel issues related to cutting edge information and trades, for instance, storing and secured advancement issues, that must be considered. Thusly, notwithstanding the way that the new advancement empowers individuals to take an interest in worldwide business activity as at no other time, it similarly develops the scale and degree of the related threats. Development gadgets infer that preparing power, accessibility, and speed can spread diseases, deal systems, and compound botches immediately, perhaps impacting interconnected social affairs, growing costs of doing business to address such catastrophes, and hitting a greater target than even imagined. Cybercriminals devise continually new frameworks. New contraptions mean new vulnerabilities, and the preventive measures to beat these vulnerabilities disregard to keep pace with cybercriminals’ ability to devise new frameworks. The noteworthy of this sort of bad behaviour is routinely inadequate. This is for the most part considering the way that a couple of bad behaviours go unnoticed and most of the way in light of the fact that the individuals being referred to (fiscal heads and associations) are watchful about declaring cybercrimes as a result of a neurotic dread of getting a terrible reputation and of their future business potential outcomes being affected by open presentation of their vulnerabilities. Associations must calculate these perils their business chance edges and keep away from potential hazard to fight against these vulnerabilities. Any sort of bad behaviour is socially ruinous; battling cybercrime isn’t just an issue of attempting security endeavours through the medium itself, yet furthermore requires the establishment of preventive measures in the legitimate hover to address the situation.

Both the standard sorts of cybercrime and different cybercrimes essentially impact affiliations. Take the example of the remarkable worm that was pushed by Robert Morris in 1988. The Internet was still at its starting time when this worm influenced endless PCs, and it took a social event of specialists straightforwardly around three days to dispose of the worm, during which time gigantic amounts of the PCs must be separated from the structure. Today, one such snare can render a few affiliations revealed, confronting giant budgetary hardships and loss of notoriety. Loss of notoriety can even come about because of deceiving email. This happened in the Bank NSP case, where an association understudy of the bank was verified to be hitched to an immature who worked at another affiliation. She traded a few messages with her life assistant, utilizing the bank’s PCs. Regardless, when the devotion was dropped, the understudy made fake email IDs, for example, “Indian bar affiliations”, and sent messages to her ex’s outside customers through the bank’s PCs. The immature’s affiliation lost different customers and arraigned the bank. The bank was held dedicated for the messages sent utilizing the bank’s structure. From a corporate viewpoint, the most fundamental zone expected to be tended to be that of private data, especially in cross fringe correspondences. The assurance of protection and information can be gotten from different laws relating to data improvement, approved progression, and authentic obligations. The important legitimate act in India identifying with data improvement and cybercrime is the Information Technology Act of 2000. The Information Technology Act obliges shield against breaks in relationship with information from PC frameworks.

Cybercrime is continuously hard to recognize and harder to display than customary terrible conduct, as cybercriminals find better approaches to manage misuse the framework. The absence of clearness of the web and the extraterritorial (no jurisdictional) nature of such encroachment work to the upside of cybercriminals by engaging the execution of awful practices from remote domains, while addressing a monstrous test for criminological examiners and criminal experts. Cybercrime is an overall protected and high-compensate understanding. Outfitted with only a few essential aptitudes and a lot of efficiency, a cybercriminal can without a lot of a stretch move colossal wholes of cash transversely over nations or enter and wreck critical information and cause enormous naughtiness to the affected affiliations. It also can end up being a “dull terrible conduct” due to the nonappearance of data that law specialists have on its occasion and spread. Unmistakable confirmation of cybercrime is as frequently as conceivable maddening by virtue of nonappearance of mandatory uncovering portions and the principal new-age aptitudes to address, uncover, and indict it.77 The three fundamental factors that make the region, appraisal, and arraignment of cybercrime so testing are secret, non-detectable quality, and nonattendance of geological purposes of restriction. The present structure framework doesn’t require a client to uncover facial, vocal, or physical highlights, or even his character by name. Under this secret, is on occasion difficult to recognize the awful practices took, off alone the hooligan. Along these lines, the general idea of cybercrime presents remarkable difficulties for the affirmation, evaluation, and arraignment of cybercriminals. In a cross-edge awful conduct, arraignment of the offense requires the specialists to comprehend where the awful conduct has happened, trailed by the game plan of check and the blackguard being brought to starter. Cybercrime, regardless, presents veritable and complex genuine issues concerning both area and removal.

The reliable thought of the Internet has for quite a while been an overall stress that ought to be tended to. A part of the major issues related to all-inclusive joint effort in the region of cybercrime and criminal law are:

(1) The nonappearance of overall accord on implications of cybercrime.

(2) Jurisdictional assortments in dominance (and to a great extent the nonappearance of aptitude) concerning the police, specialists, and the courts in association with this criminal part.

(3) The insufficiency of existing laws for assessment and access to PC structures and frameworks, including the inapplicability of seizure powers for intangibles, for instance, motorized data.

(4) The nonappearance of harmonization between the distinctive national procedural laws concerning the assessment of cybercrime.

(5) The nonattendance of expulsion and basic assistance settlements and of synchronized law execution instruments that would permit overall interest, and the disappointment of existing courses of action to think about the components and extraordinary essentials of advanced security.

The Indian reaction rose in the 1998 National Informatics Policy gave by the National Taskforce on Information Technology and Software Development. The taskforce submitted three key reports recommending different measures to fabricate India’s infotech industry and spread the utilization of IT in the nation. Ensuing to these discoveries, India passed the Information Technology Act in 2000. The most significant component of this Act is that it gets its ideas from the United Nations Commission on International Trade law (UNICTRAL) Model Law on Electronic Commerce. With thirteen parts involving ninety-three segments and four Schedules, the Indian Information Technology Act is an endeavour to change the obsolete laws and give approaches to bargain digital security and lawfully perceive electronic trade, computerized records, and advanced marks. Under the Information Technology Act, common risk and stringent criminal punishments might be forced on any individual who makes harm a PC or PC framework. No punishment forced or reallocation made under the Act will avoid the burden of some other discipline under some other law in power. Areas 65–68 of the Act remember arrangements for the discipline that can be dispensed for cybercrimes. Segment 66 explicitly manages the offense of hacking. Is fascinating that India has attempted to battle the earthbound idea of cybercrime by expanding the materialness of the Information Technology Act universally. Notwithstanding, its arrangements on punishments for cybercrime might be hard to force in the global field. Under Section 76 of the Information Technology Act, the mediating court likewise has the forces to reallocate any PC, PC framework, floppies, minimal circles, tape drives, or any extras in connection to which any arrangements of the Act are being disregarded. No punishment or reallocation made under this Act will influence the burden of some other discipline under some other law in power.

The overall effect of the Information Technology Act and its amendment, which is the amalgamation of Internet security and regulation becoming part of India’s legal framework, is the clear message that India is serious about identifying instances of cybercrime and penalizing offenders. From the perspective of e-commerce in India, the Information Technology Act has many positive aspects. In July 2013, India released its first National Cyber Security Policy. This Policy prescribes measures for securing cyberspace and critical infrastructure of India and covers a wide range of topics, from emergency response networks, private-public partnerships to national cybersecurity issues. The framework though comprehensive and “aspirational” has numerous lacunae. Probably as this is a policy framework, legally it is not soundly drafted. Further not only methodology but implementation of this policy also is suspect considering the manners in which in its nascent stage numerous bodies have been introduced with responsibilities for cybersecurity.

The Internet is constantly changing, and it is impossible to foresee the nature and possible scope of all the current and future opportunities for cybercriminals. Lawmakers at every level of government will need to watch and study the nature of human interactions with and via computers and networks, adapting laws to deal with the most pressing risks as they become apparent. Cybercrime’s potential for enormous cost to the economy, society, and national defense demands constant vigilance and ongoing efforts to develop feasible solutions to address new problems as they emerge. Appropriate steps need to be taken to constantly revamp laws and to educate law enforcers and legislators to recognize the changing face of crime. Self-protection is the prime tool. Organizations should focus on implementing cyber-security plans that address people, processes, and technology issues. Organizations need to commit the necessary resources to educate employees on security practices; develop systematic plans for the handling of sensitive data, records, and transactions; and incorporate robust security technology into their infrastructure. Therefore, to develop an effective solution to address cybercrime, an international response must be supplemented with public awareness, strong industrial support, and public-private partnerships.

The cybercrime is an invention of crimes made by a class of intellectual, sophisticated criminals. Since long time the criminal jurisprudence was totally ignorant of such types of crimes, although these were committed in different forms during early development of crimes and criminology. One can say that the cybercrimes started to operate when technology reaches its peak and took new tum to satisfy human needs and desires. These crimes contain the elements of blue colour and white colour crimes. These are blue colour crimes because these are not very different from other prototype crimes, though recognized by various names. These are also white colour in nature because crimes are usually committed by a class of criminals who are having knowledge about science and technologies. For this reason, I dare to say that cybercrimes are an amalgamation of blue colour and white colour crimes. The Internet is a vast worldwide network of powerful computer sensors which are constantly connected to each other via high speed communication cables. All the information that is on the Internet is stored on one of the servers. The Internet is a virtual space in which user send and receive e-mail, log in to remote computers, brouse-databases information and send and receive programmes contained in the computers.

The cybercrime is a primarily example of cross-border crime. The jurisdiction in this area is a tricky and is still unclear. The Government of India has enacted Information Technology Act, 2000 to deal with cybercrimes. The Act further amends the Indian Penal Code, 1860, the Indian Evidence Act,1872 the Banker’s Books Evidence Act 1891 and the Reserve Bank of India Act 1934. The cybercrime cell and police station have also been created for detection and investigation of such crimes. A multi-pronged strategy is required to fight along with legal measures. The cybercrime is a great threat to the human rights. The number of security attacks being designed to steal personal information is increasing with accelerating pace. The attackers are targeting personal information to make a profit out of their operation and threatening the basic philosophy of ‘right to live with dignity. As the cyber criminals are masters of using the modern Science and Technology and it is very much complicated for effective law enforcement. Sometimes, technologies provide benefits to criminals. Effective law enforcement is equally complicated by its transnational nature of cyber space. Cyber criminals can defy the conventional jurisdictional realms of sovereign nations. Cybercrime may originate in any part of the world and can pass easily across many national boundaries. Such a situations increase both the technical and legal complexities of investigating and prosecuting these crimes. The international harmonizing efforts, coordination and co-operation among various nations are required to combat the cybercrimes.

The advanced country like the United States has enacted some Acts dealing with the cyber and intellectual property crimes. The Economic Espionage Act, enacted in 1996, created the first federal Sanctions for theft of trade secrets. In 1996, threats of virus attacks and disruptions of computer networks prompted the justice Department to create the computer crime and Intellectual property section within its Criminal Division. The United States also passed the Computer Fraud and Abuse Act. At this point of juncture some suggestions and opinions to tackle this new form of crimes have been made:

1. Improvement of technology is in need of the days. Cybercrimes are such types of crimes which can primarily be prevented along with other measures. Technological improvement may be helpful for detection, prevention and commission of such crimes. High standards for security and network reliability have to be required. Effective technological “locks” to prevent end users from copying and distributing copyrighted music in digital form.
2. Special Statutes on cybercrime is required to be passed to deal with the new form of crimes and to protect digital data. It will include Intellectual Property crimes and crimes relating to human rights.
3. The Government must create a special branch of Cybercrimes and Intellectual Property Crimes within its criminal infrastructure, so that the enforcement personnel may take quick action against the Cyber Criminals.
4. All sorts of infrastructure facilities are required to be available to the investigating officers, especially regarding mobility, connectivity, use of technology. Scientific training to be provided to the investigating officers to deal with the new problems under separate investigating agency to deal with the cybercrimes.
5. The Economic Espionage Act like law is required to pass for the protection of trade secrets, pragmatic steps are required to protect confidentiality of trade secrets during investigation and prosecution.
6. An Act having objectives to prevent computer fraud and abuses are to be enacted to combat criminal operations. It may be helpful particularly during investigation and prosecution of criminals. It will deal with security and safety of certain computers, computer networks and data stored on the computers and unauthorized access to Government Computers. The Act will also deal with hackers.
7. In case of digital technology, various problems are experienced. Problems of distribution, catching, protection of confidential information, payment mechanism of e-commerce are few among these. In view of such situation Intellectual Property Laws till require major amendment to deal with challenges posed by the internet and digital revolution.
8. It has been the fact that there are some grey areas in Intellectual Property regarding “domain name”. Though the domain names are protected under relevant l.P. Law. There is scope of further amendment of such laws to make this clearer for ends of effective increase of the commerce.
9. Good infrastructure and facilities be provided by the Government to the Cyber Crime Cell and the Cyber Crime Police Station to deal with the cybercrimes.
10. With weak infrastructure facilities the police personnel facing tremendous problem in detecting and investigating of crimes and sometimes they feel helpless. To train law-enforcement personnel and the prosecution for understanding the technological aspects and their use in crimes. The Government must establish advanced cyber labs and to provide different levels of training to police. Creating awareness on data security understanding cybercrime, to understand how to survey a crime scene and preservation of evidence, identification of digital evidence, understanding computer hardware and data storage. It also requires the maintenance of compulsory Register of every cyber cafe for detection of cyber criminals who are sending threat e-mails and are interested to practice such other acts involving the question of the country’s safety and security.
11. The users are not aware of using computer and Internet. The ISPs must provide some sort of warning on the Internet. Awareness of general public and investigation agencies is essential. Active involvement of the Government is also essential. ISPs must be more accountable to the Government and to the public for providing required information. The Government has to frame stringent law upon the ISPs.
12. The punishment for commission of cybercrimes to be increased to deter future offence. It must not only be deterrent but must also be exemplary.
13. For increasing awareness the emphasis must be laid on cross-border investigation and exchange of measures for prevention of Cyber Crimes among various nations.
14. The Interpol, the Police Organization may be utilized for speedy exchange of information and materials required for prosecution of cyber criminals for its trans-border nature. In absence of extradition treaty with number of countries it has been difficult to apprehend the cyber criminals and to have necessary information from other countries when criminal operation is being done from other countries. It is therefore urgent need of time that Government may consider taking the help of Interpol. It is also intended that necessary legal provision should be included in the proposed new Act.
15. Alike Green Bench, a Special Bench for dealing with cybercrimes may be created at least in each and every High Courts. Special branch may also be created in every metropolitan cities and districts.
16. The last but the vital one is to train and equip judges and criminal lawyers and investigating and enforcement agencies to deal with this new transnational, complex, high-tech crimes to understand investigative and prosecution process that are unique to cybercrimes.

Reference

1. https://www.researchgate.net/publication/322245372_Cybercrime_in_India_Trends_and_Challenges
2. https://www.researchgate.net/publication/241689595_A_Study_on_Cyber_Crime_in_India
3. https://www.academia.edu/17503548/CYBER_SECURITY_CHALLENGES_FOR_INDIA_-_AN_ASSESSMENT_OF_ITS_PREPAREDNESS
4. https://www.academia.edu/1252775/Cybersecurity_Law_and_Regulation
5. https://www.irjet.net
6. https://acadpubl.eu
7. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3122318
8. https://economictimes.indiatimes.com/topic/cyber-crime

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

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This article is written by Amarnath Simha, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com. Here he discusses “Top Marketing Agreements That A Market Development Research Must Know”.

Introduction

Market Development means the expansion of the total market for a product or company by (1) entering new segments of the market, (2) converting nonusers into users, and/or (3) increasing usage per user (http://www.businessdictionary.com/definition/market-development.html).  However, some define to be only including the strategies for developing the existing market rather than looking for a new product (https://economictimes.indiatimes.com/definition/market-development). Market Development comprehends within it many aspects including the reduction of the cost of the product, price reduction, qualitative market research like focus groups, survey advertising etc.,.  The focus of this article is on those strategies which are more concerned with developing new customers for the existing products or brands.

Market Development Research

The Market Development is said to be a two-step process where the first step is shortlisting market segments which are worth pursuing and the next step would be the promotional strategy to enter those market segments whereby the companies enlist both audio and visual media for achieving the same (https://economictimes.indiatimes.com/definition/market-development). 

Market Development research can be done by internal marketing department or b an independent contractor or agency.  

In the course of Market Development, the research team identifies the venues/channels through which the products of the company can be marketed to new segments.  There are no limits for this kind of marketing as a person can see an opportunity to market the products at each place, each event etc.,

Once a venue/channel was identified, it is a decision of every business entity as to whether carry out those plans/strategies internally through its employees or employ independent agencies/contractors.  It is only in case of independent agencies/contractors that all the marketing agreements are required. In case of internal marketing campaign of the campaign, marketing agreements related to only some strategies are required, for e.g., brand ambassador, influencer etc., once the basic understanding was reached between parties, the legal agreements would naturally follow.  Over time, these legal agreements become standardised when they were sufficiently utilised for those particular venues/channels. Since research is always about identifying or creating new venues/channels, the legal agreements regarding the same would also have to keep updating/changing. However, since research team also builds/bases on the existing knowledge, it is inevitable that they must know about the legal agreements with respect to the existing venues/channels of marketing i.e., the marketing agreements.  Some of those marketing agreements are referred to hereunder.

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Top Marketing Agreements which the Market Development Research Must Know

Some of the marketing agreements which the Market Development Research must know of are as follows: 

1. Sales and Marketing Agreement: This is a basic agreement in which the marketer agrees to market the product through his own efforts either for a fixed fee or a commission.  This is usually commission-based with incentives for higher performances. This is a standard marketing agreement by giving responsibility to one person/agency in a particular geographical area. 
2. Third party marketing agreement: This is just a variation of the basic sales and marketing agreement but applicable in the fields of some services like start-ups, hedge funds, investment companies etc., wherein advertising directly to a potential customer is prohibited by federal regulations.  The third party’s role is to raise assets. Some of its services include the development of marketing materials, guidance about new products, investor’s database development, public relations etc., The sales service include cold calling, attending industry conferences, managing a sales team and organizing conference calls and on-site visits (https://www.upcounsel.com/third-party-marketing-agreement).
3. Advertising Agreements: Advertising agreements of any sorts can also be called as marketing agreements.
4. Brand Promotion/Development Agreement: Usually independent agencies are hired under this agreement for promoting the brand of the company itself.  Brand promotion has been defined to be the way to inform, remind, persuade convincingly and influence the consumers to drive their decision towards purchasing the product or service under a brand.  Brand promotion activities include organizing contests, promotion on social media, products giveaways, points of sale promotion i.e., placed at the checkout counter so that they are bought on impulse by the customers as they wait to check out, customer referral incentive programs, causes and charity, promotional gifts, customer appreciation,etc(https://www.tutorialspoint.com/brand_management/brand_management_promotion.htm). Agreements with these agencies for the above services is also marketing agreements.
5. Online Brand Promotion Agreement/Digital Marketing Agreement: Since the entire way of life has changed within the past 15-20 years with internet and phones becoming the major source of information, activities, influence, the companies have accordingly increasingly resorted to digital marketing.  Though some people seek to differentiate digital marketing from online marketing on the basis that digital marketing includes digital media on the television, mobile phones (SMS and MMS), call back and on-hold ring tones (https://en.wikipedia.org/wiki/Digital_marketing), the online marketing is also said to be including digital advertising (https://en.wikipedia.org/wiki/Online_advertising).  Digital marketing is the marketing of products or services using digital technologies on the Internet, including through mobile phones Apps, using display advertising, and any other digital mediums.  Digital marketing channels are systems based on the internet that can create, accelerate, and transmit product value from producer to the terminal consumer by digital networks.  Digital marketing methods such as search engine optimization (SEO), search engine marketing (SEM), content marketing, influencer marketing, content automation, campaign marketing, data-driven marketing, e-commerce marketing, social media marketing, social media optimization, e-mail direct marketing, Display advertising, e–books, and optical disks and games have become commonplace.  They make take many hues like creating videos of the brands/products on social media platforms like Youtube to be pushed as an advertisement by them or creating company’s business accounts on LinkedIn or Facebook etc.,   Agreements with third parties for promoting the brands/products of the company through these methods are also marketing agreements.
6. Brand Ambassador/Celebrity Branding Agreements: Brand Ambassador is usually associated with a company wherein the company seeks to project the Brand Ambassador as the face of the company for boosting the positive image of the company.  However celebrity branding is different in the sense the celebrities are used to promote the brand and are not projected as the face of the company. They appear at brand launches and at corporate events of the company (https://www.tutorialspoint.com/brand_management/brand_management_promotion.htm). Agreements with these Ambassadors or Celebrities are also marketing agreements.  
7. Co-branding Agreements: It is a strategic marketing or advertising partnership between two non-compete brands whereby the non-competing brands agree to work together and cooperate to promote or sell a product or service.  Some of the examples for such initiatives are partnership between cab aggregator Ola and mobile manufacturer OnePlus, Uber partnering with London Dairy to offer ice cream, Uber partnering Airtel, Paytm offering Uber free rides and food coupons, Ola and Myntra partnership, among others (https://www.thehindu.com/business/Industry/New-age-firms-use-co-branding-to-reach-customers/article13973320.ece).  These co-branding agreements are also marketing agreements.
8. Event Merchandise Agreement:  is one of the brand development agreements.  The marketers take advantage of events held annually like marathons, all sports competitions like world cups, book festivals,  etc., to associate their brands with the events and thereby make their brand promotion. Sometimes it is in the form of the products that are actually sold at these events.  Even if the sales are less in percentage, the brand value would be developed and ultimately contribute to the company’s turnover. The agreements entered into with the event organisers are also marketing agreements.

The list of marketing agreements can never end.  As long as an opportunity is seen in any place and any person, a marketing strategy is developed and consequently the marketing agreement begins to be associated with it.

Some of the Clauses that are to be included in these Agreements

Each of the agreement requires its own clauses which are different from the other agreements.  Apart from the scope of work, remuneration, term etc., of the contract, many other factors are also required to be considered in these agreements.  These factors are variable. Some of them are,

Confidentiality Terms: Some of the digital marketing campaigns might be on confidential terms because companies do not want to be known to public that they are engaging the services of outsiders in marketing their products.  On the other hand, with respect to remuneration aspects of brand ambassador and celebrities, the same may be sought to be kept confidential by both parties. The confidentiality clause may include the conditions of the work in many instances.

Intellectual Property Rights: Usually they belong to the company but the company may also be restricted from using the material in campaigns after the term of the contract or with the help of other service providers or license the same to other companies for their marketing.

Indemnification Clauses: These may be incorporated to overcome the cases of stolen intellectual property, or the brand ambassadors losing their credibility due to unwanted activities which were represented to be not occurring in the first place.  The indemnification would also need to cover in case any of the other laws are violated by the service providers. These would also lead to consequential termination, liquidated damages and dispute resolution clauses.

Security Arrangements:  Apart from a brand ambassador or celebrity’s personal security, the companies may also be obligated to provide adequate security in cases of appearance at events of the companies.

The number of clauses when dealt with become infinite as they are dealing with the requirements and understanding of the parties at hand.  

Conclusion

These are just the possibilities which the Market Development Research has to be aware of to be either utilized as stepping stones for other strategies or for developing an entirely new strategy.  With the Market Development Research being ever-evolving, the nature of marketing developments are also evolving and hence, the potential for new marketing developments are also limitless.

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

The post Top Marketing Agreements That A Market Development Research Must Know appeared first on iPleaders.

This article is written by Mehar Verma, a 3rd-year law student, from Jindal Global Law School, Sonipat. In this article, the author talks about the meaning, importance, and procedure for filing caveat under CPC.

Introduction

To know when to lodge a caveat or what to do when a caveat against you is lodged, it is important to understand caveat and its implications. In simple words, a caveat is a right given to a person in civil proceedings to avoid ex-parte orders or judgments. For example, X is the owner of the land and he wants to build a house on the same land, for which he even got permission from the municipality. However, Mr. Y, a neighbour of X, is not happy with his decision and claims that a part of the land where the construction is going to be done belongs to him. Now Mr. X being a wise man anticipates that Y may file an application. Thus he files a caveat against Y in a competent suit, praying the court to give him a notice when any such application is made by Y. Lodging of such caveat made X entitled to be informed by the court as well as Mr. Y about any application that is made or is about to be made and any order passed by the court without giving such a notice would be void.

Meaning of Caveat

The caveat in Latin means “let a person be aware” and in law, it may be understood as a notice given asking not to act in a certain manner without informing the person who gave such a notice. Under the Civil Procedure Court, the provision of caveat is dealt with in Section 148A. Even Though CPC does not define caveat in the case of Nirmal Chand v. Girindra Narayan, the court defined caveat as a warning given by an individual to the court that no order or judgment shall be passed without giving notice or without hearing the caveator. The person who files a caveat is called the Caveator and the person who has instituted a suit or is likely to do so is called caveatee. The main object of caveat is to ensure that the court does not pass ex parte orders and that the interests of the caveator are protected. Caveat also reduces the burden of court and brings an end to the litigation as it reduces the multiplicity of proceedings. As the purpose of the caveat was to save the cost and convenience of the court, in Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma, the court held that no caveat can be lodged by a total stranger to the suit.

When to lodge a Caveat?

According to Section 148A, when people apprehend that some case against them is filed or is about to be filed in any court of law in any manner, they have a right to lodge a caveat. The Caveat may be lodged in the form of a petition under the following circumstances:

1. During an ongoing suit or litigation and in that the application is already been made or is expected to be made;
2. The suit is about to be instituted and in that suit, an application is expected to be made.

Thus, firstly it is always about an application in a suit of the proceeding and secondly that suit or proceeding can be in the present which is already instituted or it can be in the future where a suit is not instituted yet but the same is expected. In all such situations the right to lodge a caveat arises.

Who may lodge a caveat?

Section 148A further provides that a caveat may be filed by any person, whether a party to the suit or not, as long as the person filing the caveat has the right to appear before the court in regard to the suit in question. Thus caveat can be filed by a third party as well, if they in any manner are connected to the suit in question. However, as it is already discussed that a caveat cannot be lodged by a person who is a total stranger to the case and the same principle was laid down in Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma. To conclude, this clause is substantive in nature and caveat may be filed by any person claiming a right to appear before the Court.

Where can a caveat be lodged?

As and when the caveator anticipates some legal proceedings to be filed against him in the near future, he can file a petition for a caveat in any Civil Court of original jurisdiction, Appellate Court, High Court as well as Supreme Court. Civil Courts include Courts of Small Causes, Tribunals, Forums, and Commissions. However, in Deepak Khosla v. Union of India & Ors, the court held that Section 148A of the code applies to civil proceedings only and caveat cannot be made against petitions made under the Criminal Procedure Code or petition made under Article 226 of the Constitution of India.

How to file a caveat?

A caveat under Section 148A shall be signed by the caveator or his advocate. Where the caveator is represented by an advocate, it should be accompanied by his Vakalatnama. The caveat presented shall be registered in a caveat register maintained by the courts in the form of a petition or any other form that may be prescribed. The register of caveat contains the date of caveat, name, and address of caveator, name of the plaintiff, the name of the defendant and date and a number of proceeding filed as anticipated by caveator. A caveat is always filed with a copy, the postal proof and an application explaining to the court that a copy of the caveat has been sent to all the parties and thus the court need not do the same. Even though the court fees of filing a caveat varies for different courts, it is generally a nominal amount of less than INR 100. The rules and format of the caveat are similar for most of the courts.

While filing a petition of caveat in Delhi High Court, follow the below-mentioned steps:

1. Support the caveat petition with an affidavit. Both petition and the affidavit should be signed by the caveator;
2. Apart from this, a vakalatnama, impugned order (if any), and proof of service of notice of caveat is also to be submitted to the Court.

The format of filing caveat in Delhi High Court can be referred below:

http://www.delhihighcourt.nic.in/writereaddata/upload/Downloads/DownloadFile_KUD67PSJ.PDF

What does a caveat contain?

A caveat or a notice given to the court that certain actions may not be taken without informing the caveator should contain the following information:

1. Name of the caveator;
2. Address of the caveator where the notice would be sent;
3. The name of the court where such caveat is filed;
4. The number of the suit and the number of the appeal if applicable;
5. Brief details about suit or appeal likely to be filed;
6. Name of the probable plaintiffs or appellants and the respondents.

Notice

If subsequent to the filing of a caveat, any application is made in any suit or legal proceeding, the court is required to give notice about such an application to the caveator. When a notice has been served on the applicant, the applicant at the expense of the caveator is required to provide the caveator with a copy of the application made by him along with any document that may have been submitted with the application. If the court or applicant ignores the caveat and does not inform the caveator, the decree or judgment passed becomes null and void.

The Reserve Bank of India Employees association & anr. V. The Reserve Bank of India & Ors, a caveat petition was filed by the appellants apprehending an injunction order by the respondent. For the caveat filed, the plaintiffs were served with a notice and all other relevant papers or documents. They were also informed that the application will be moved on 28-10-1980. However, the application was not heard on the said date, rather heard later on 30-10-1980. The petitioners argued that as the court failed to provide the plaintiff with the notice of the order, the judgment would be void and null, in accordance with clause (3) of Section 148A. The court disagreed with the appellants and held that caveat gives the right to be informed about hearing of the case and not takes away the right of a court to deliver a judgment or order on the merits of the case. Mere lodging of caveat does not deprive the court of its power to deliver orders or judgments.

However, the precedent set in the above case was overruled in C.G.C Slddalingappa v. G.C Veeranna, wherein the applicant on filing a caveat was served with a notice. However, the case was decided on a later date without giving notice to the appellant about the same. The court held that the provision regarding notice under Section 148A(3) is mandatory and non-compliance of the same defeats the very object of 148A, thus the order passed is void and null.

Right and duties

When a caveat is filed, it gives certain rights and duties to the caveator, applicant as well as the court. Let’s consider all these rights and duties separately:

Rights and duties of the caveator

Clause (2) of the section provides that when a caveat has been lodged under sub-section (1), the caveator shall serve a notice of the caveat to the person by whom the application has been made or is expected to be made under sub-section (1). The caveator at the time of lodging the suit says that either there is a suit in the present and in which I expect an application is going to be made or there is an application existing in the suit and I want to be represented, or he says that a suit is going to be filed in the future and in that suit an application will be made and in that application I want to be represented. So whenever such an application comes, the caveator has the right to be informed. However, before he becomes entitled to notice, he has to give a notice saying that I have lodged a caveat to the person from whom he is expecting such an application to be made. In other words, the caveator has to serve notice by registered post, on the applicant who is going to file this application or who has already filed an application, saying that whenever you file an application, you are bound to give notice.

Rights and duties of court

The duty of the court arises, once the caveat is lodged and notice is served upon the applicant. Clause (3) of the Section provides that after a caveat has been lodged and thereafter any application is filed in any suit or proceeding, the court has to serve a notice to the caveator. This means that once the caveator has filed the caveat saying I want to be represented and after that, an actual application has been filed within the next 90 days, in that case, the court will serve a notice to the caveator, informing him that the application that was expected by him has been filed and the caveator thereby has the right to be heard before the court.

Rights and duties of the applicant

In addition to the court giving notice, the applicant is also required to serve a notice to the caveator, informing that an application in regard to the caveat filed has been made. Clause (4) of the section, directs the applicant to provide a copy of the application made by him along with any other document or paper that may have been fled by him in support of his application to the caveator. The Court will not move forward with the application unless an affidavit is submitted by the applicant that a notice has been served to the caveator.

Limitation of time

As provided by the section in clause 5, the caveat stays in force for a period of 90 days. If within these 90 days an application is filed, then the court, as well as the applicant, has to give notice to the caveator. However, if no caveat is filed within these 90 days, then no one has the duty to inform the caveator, i.e. if the application is filed after the expiration of such period the caveat stands null and void. If the caveator still wants to be informed then a fresh caveat needs to be lodged for the next 90 days.

Common mistakes made while filing a caveat

Some of the common mistakes made while filing caveat are as follows:

1. The caveat is often filed in support of an application, it is important to remember that caveat can be made only against an application;
2. Caveator forgets to serve a notice to the applicant, which is mandatory under Section 148A of CPC
3. Caveators often claim that the order or judgment was incorrect because the notice was given, even after the expiration period. It is important to remember that after 90 days, a fresh caveat needs to be filed.

Conclusion

Section 148A, give any person who has a fear or nervousness that some or the other case against him or her are going to be filled in a court of law in any manner, the power to lodge a caveat in the court. A caveat may be lodged in any civil suit including tribunals and forums in the form of a petition. If an application, that the caveator had anticipated is made within 90 days of filing the caveat, then a notice is to be served by the applicant as well as the court to the caveator, informing him about the filing of such an application. Any judgment or order passed without giving such notice or without giving a reasonable opportunity to the caveator to be heard, would be considered void and null.

References

1. https://blog.ipleaders.in/five-things-know-caveat/
2. https://bombayhighcourt.nic.in/libweb/acts/cpc1908/Order40A.pdf
3. http://delhihighcourt.nic.in/courtrules.asp

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

The post Elaboration of Caveat Under CPC appeared first on iPleaders.

We are students, teachers and alumni of the Indian Law Society’s Law College, Pune. We strongly condemn the violent police action on students in Universities across India where legitimate, peaceful protests against the unjust and discriminatory Citizenship Amendment Act, 2019 are ongoing.

We remind the state machinery that under our constitutional framework, the right to peaceful protest is safeguarded as a fundamental right under Part III. It ought not to come as a shock to the ruling establishments in various states where the protests are on-going that a vote is not a solemn declaration of irrevocable acceptance for all times to come. A vote is not a bargain for silence without dissent.

We condemn the terrorizing of institutions of learning using the disproportionate weight of state machinery to stifle legitimate dissent. It is highly unbecoming of the state machinery to unleash violence on students. We stand in solidarity with the students who have suffered this indiscriminate brutality. We request the judiciary to take cognizance of these brutal acts by the state machinery and initiate an independent inquiry.