Law Chambers of Anshul Kumar Pandey

My First Day in Court

noreply@blogger.com (Anshul Kumar Pandey) — Sun, 25 Jun 2023 16:54:00 +0000

While going through my old notes I stumbled upon the diary which I used to keep when I started my practice as a young lawyer. Consequently, for the sake of posterity, I wish to record the day I first entered into the courts as a newly qualified advocate. The date was 3^rd September 2016. The courts were the Tis Hazari District Courts in New Delhi.

I had been visiting the chambers of a Learned Advocate who had a well-established practice. I had started being regular to his chambers and used to spend most of the day reading case files and helping him prepare list of dates, case notes, do research on judgments etc. It was during the course of visiting his chambers that I was asked to attend court hearings and observe court proceedings as that would help me in understanding court craft better. I was told that a lawyer learns more by observing rather than reading.

As a newbie lawyer, I did not want to directly go to the court of the District and Sessions Judge. You can say that I was still green behind my ears and did not want to thrust myself before the gaze of the senior most judge of the court, even as an observant. On the civil side, I was inclined more to visit the court of the Civil Judge to see the matters being argued, before making my way up to the court of the District Judge. Hence, I randomly wandered into the courts and settled for the court of Learned (henceforth “Ld.”) Civil Judge Mahima Rai, Delhi Judicial Service.

The case was Meeta Kumar vs Surender Kumar Jain. At the time of writing this article, almost 7 years after the date of the hearing which I attended, the case is still going on before the court of the Ld. Civil Judge and is at the stage of Defendant/Respondent Evidence. Its first hearing took place on 14^th October 2014.

I am presenting here a full background, facts and final disposal order of the court so as to make sense of the arguments advanced during the hearing that I duly noted down in my diary.

Legal background of the Hearing

It is important to understand the background of the hearing and the legal provisions involved in order to make sense of the arguments advanced during its course.

The hearing was taking place for the adjudication of two applications filed Under Order 11 Rule 12 and 14 read with Section 151 of the Civil Procedure Code 1908 on behalf of the plaintiff.

The provisions read as follows:

Order XI – Discovery and Inspection

Rule 12 – Application for discovery of documents – Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oaths, of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit: Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

Rule 14 – Production of Documents – It shall be lawful for the court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.

Section 151 – Saving of inherent powers of the court – Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

Facts of the Case

These applications were filed in the suit for permanent and mandatory injunction filed by the plaintiff.

The mother of the plaintiff was the owner landlady of a property. She had executed a will during her lifetime, bequeathing 1^st and 2^nd Floor with terrace in respect of the property in favour of the plaintiff and the basement and the ground floor portion of the property in favour of the plaintiff’s brother. She expired shortly thereafter. The plaintiff’s brother too expired shortly after the expiry of the mother of the plaintiff.

Defendants Nos. 1 and 2 were the tenants in respect of the back portion of 2^nd floor of the said property. The tenanted portion of the property was the suit property. The defendants executed a lease deed/rent agreement with the mother of the plaintiff while she was still alive. Vide the said rent agreement they agreed to pay all the consumption charges such as water and electricity in respect of the suit property.

After the death of the plaintiff’s mother, the plaintiff served an eviction notice on the defendant nos. 1 and 2 under the Delhi Rent Control Act as she required the suit property for her bonafide requirement/use. During the pendency of the eviction petition before the court of the Rent Controller, the defendant nos. 1 and 2 were in continued use and occupation of the suit property and were consuming the water and electricity.

By way of the suit for permanent and mandatory injunction, the plaintiff prayed that the defendants be asked to clear up to date water bills or pay her the cost for the same along with applicable interest. The plaintiff also prayed for permanent injunction against the Delhi Jal Board (“DJB”) restraining it from supplying water in respect of the suit property.

In their written statement before the court, the defendant nos. 1 and 2 contended that that the water supply stood discontinued for last more than a decade. However, they did not file any document in support of the same.

By way of the first application, the plaintiff prayed that the court direct defendant nos. 1 and 2 to file their affidavit swearing the date of disconnection of water supply and file the relevant document of disconnection of water supply issued by defendant no. 3, DJB.

By way of the second application, the plaintiff prayed that the court direct the defendant no. 3 DJB to file the necessary documents:

(i) date of disconnection of water connection
(ii) copy of notice sent to defendant nos. 1 and 2 prior to the disconnection of water connection
(iii) record of assessment and calculation of the amount of bill in question in respect of water connection

Arguments advanced during the hearing on 03^rd September 2016

My court diary records the following proceedings which are reproduced here verbatim:

The judge asks why court notice was issued.
Application filed under Order 11 Rule 12 and 14 by Counsel for Plaintiff.
Counsel for the Plaintiff demands Defendant No. 3 to submit all the documents in the court.
Counsel for Defendant No. 3 argues that DJB has sent defendant No. 1 and 2, bills regularly and refers to his Written Statement and Status Report.
Date of Disconnection (30^th July)
Notice.
Judge asks the counsel for Defendant No. 3 that when there is a specific application there should be a specific reply.
Counsel for defendant argues that they have not filed documents in the court because the plaintiff has no right for receiving the documents.
Counsel for the Plaintiff argues no separate notice for disconnection of water meter was issued.
Judge notes the submission of both the counsels on the case file.
Counsel for Defendant No. 1 and 2 busy in another court. Matter to be heard again at 11:30.
(At 11:30)
Counsel for the Plaintiff Present.
Counsel for Defendant No. 1 and 2 Present.
Counsel for the Plaintiff draws attention to Page No. 7 Para No. 5.
He argues who is responsible to pay the outstanding amount?
Judge asks when has the bill been raised and when was the water supply disconnected?
Counsel for the Plaintiff answers the same.
Judge asks for the prayer.
Counsel for the Plaintiff prays for the issuance of notice to the defendants.
Counsel for the Defendant No. 1 and 2 argues that according to the status report of DJB the water meter has been disconnected on 11.07.2014. She argues that the application of the plaintiff is not maintainable since all the records and documents in their power and possession has been submitted in the court. She argues that application will be maintainable if the suit is maintainable.
Judge asks why is the suit not maintainable?
Counsel for Defendant No. 1 and 2 argues that there is no privity of contract between their client and the plaintiff. The plaintiff has no locus standi to file the suit.
The judge refers to Order 11 Rule 12 and 14.
Counsel for the Plaintiff argues that who will pay the water bill if the tenants vacate their tenancy or are evicted under the orders of the court?
Judge asks counsel for defendant No. 1 and 2 about the accounts of payment filed before the court.
The counsel for Defendant No. 1 and 2 makes a distinction between primary and secondary evidence. She argues that there has been no water supply since 2001 from the said water connection. She argues that the Defendant No. 1 and 2 have been purchasing water as shown in the ledger accounts and have not received water supply from DJB. She argues that the water meter is defective too.
Judge examines both the bills. Arguments heard on both the applications of the plaintiff. Matter posted for orders on 22.09.2016.

Order

The following order was recorded by the Ld. Civil Judge:

Arguments heard on both the applications of the plaintiff under Order 11 Rule 12 and 14 CPC against defendant nos. 1 and 2 and defendant no. 3 respectively.

Now, to come up for orders on both the abovesaid applications on 22.09.2014.

Subsequent Order on 22.09.2014

The subsequent order recorded the arguments made by both the sides and held as follows:

Defendant No. 3/Delhi Jal Board has already placed on record the status report regarding the water connection. They have also filed a detailed bill clearly mentioning how the same was raised and that the said meter was disconnected on 30.07.2014. Further, it is submitted by Ld. Counsel for defendant No. 3 that there is no need for a separate order for discontinuing the water supply as it is mentioned in each and every bill raised by defendant No. 3 that in case of nonpayment of all the arrears before the due date, the connection would be liable for disconnection. They have also filed copy of the cutting order dated 30.07.2014. Moreover, it is submitted by all the defendants that the plaintiff has no locus standi to ask for the said record in respect of the water connection as the same stands in the name of defendant No.1 & 2, meaning thereby that there is privity of contract between defendant Nos. 1 & 2 on one side and defendant No. 3 on the other. Thus, in view of the above discussions and that the information/documents sought by the plaintiff from all the defendants are already on record, both the applications filed by the plaintiff U/o 11 Rule 12 & 14 r/w Sec. 151 CPC are held not maintainable. Both the abovementioned applications stand dismissed and disposed off accordingly.

Experience of the First Hearing

Needless to say, I did not have the full background of the hearing that I have produced in this article at the time of the hearing. I was more focused on how the counsels for the plaintiff and the respondent presented their arguments and how they answered the questions posed by the judge. This turned out to be a memorable experience for me not just because it was the first court hearing that I attended, but also because of the fact that I got to see the judicial machinery in action.

I came back from the court and got busy in the grind of advocacy till today when I once again stumbled upon my diary which transported me back to this hearing.

I duly wish both the plaintiff and the defendants of this case that their matter comes to an end soon and the court does justice to both the parties.

Provisions Regarding Inspection of Minutes Book of Board Meeting and General Meeting in Companies Act, 2013

noreply@blogger.com (Anshul Kumar Pandey) — Thu, 20 Apr 2023 18:18:00 +0000

In the last post, I tried to breakdown the provisions of Section 118 of the Companies Act, 2013 and Rule 25 of Companies (Management and Administration) Rules, 2014 which dealt with the maintenance of the Minutes of Board and General Meetings of the Company. This post is regarding the provisions of the Companies Act, 2013 which deal with the inspection of the minutes and the mode and manner of doing the same by those entitled to do so.

Inspection of Minutes Book of General Meeting

Section 119 of the Companies Act, 2013 deals with the Inspection of Minutes Book of General Meeting. A breakdown of the provisions of this Section is as follows:

What can be inspected?

The book containing the minutes of the proceedings of a general meeting of a company or of a resolution passed by Postal Ballot.

Who can inspect it?

Any member of the Company can inspect the minutes book free of charge.

When can it be inspected?

The minutes book can be inspected by any member of the company during business hours. It is the duty of the company to provide not less than 2 hours in each business day for inspection of the minutes book.

How is it to be inspected?

Any member of the company can inspect the minutes book during the normal business hours of the company. Where the member so requests, he shall be entitled to be furnished, within 7 working days of such request, a copy of such minutes on the payment of such fees as may be prescribed.

Power of the Company to impose reasonable restrictions

The company may impose reasonable restrictions on the inspection of the minutes book by its Articles of Association or in the General Meeting.

What are the consequences of refusal by the company?

If any such inspection is refused, or if any copy required is not furnished within the time specified, the Company shall be liable for a penalty of Rs. 25,000/- and each officer of the company who is in default shall be liable for a penalty of Rs 5,000/- for each such refusal or default.

Power of the Tribunal

In the case of any such refusal or default, the NCLT may, without prejudice to the penal provisions outlined in this section, order an immediate inspection of the minutes book or direct that the copy of the minutes book shall be forthwith sent to the person requiring it.

Rule 26 of the Companies (Management and Administration Rules) 2014

Some additional provisions regarding the inspection of the Minutes Book of General Meeting as outlined in Rule 26 are as follows:

Inspection of minutes book may be provided in physical form or electronic form.
While providing inspection of minutes book, the Company Secretary or official of the company authorized by the Company Secretary to facilitate inspection shall take all precautions to ensure that the Minutes book is not mutilated or in any way tampered with by the person inspecting.
The fee for furnishing the copy of the minutes requested by any member of the company shall not exceed Rs. 10/- for each page or part of any page.
A member who has made a request for a soft copy of the minutes of any previous general meetings held during a period immediately preceding three financial years shall be provided the same free of cost.

Inspection of Minutes Book of Board Meeting

A member of the company is NOT entitled to inspect the minutes of the meeting of the Board.

Who can inspect it?

As per Para 7.7 of Secretarial Standards - 1, the Minutes of Meeting of the Board or any Committee thereof can be inspected by the Directors.

A Director is entitled to inspect the minutes of the meeting held before the period of his directorship.

A firmer Director is entitled to inspect the minutes of the meeting held during the period of his Directorship.

The following professionals can inspect the Minutes as may be considered necessary for the performance of their duties:

Company Secretary in practice appointed by the Company
The Secretarial Auditor
The Statutory Auditor
The Cost Auditor or
The Internal Auditor

How can the minutes book be inspected?

The Minutes Book can be inspected in physical or electronic form.

Precautions to be taken during Inspection

While providing inspection of minutes book, the Company Secretary or official of the company authorized by the Company Secretary to facilitate inspection shall take all precautions to ensure that the Minutes book is not mutilated or in any way tampered with by the person inspecting.

Provisions Regarding Maintenance of Minutes of Board Meetings and General Meeting under Companies Act, 2013

noreply@blogger.com (Anshul Kumar Pandey) — Wed, 19 Apr 2023 18:58:00 +0000

The 'Minutes Book' is an extremely important document for any company as it is a record of the meetings of the Board of Directors as well as the Extraordinary General Meetings that have taken place in the company. It contains the details of the resolutions passed and the decisions taken in these meetings.

Section 118 of the Companies Act, 2013

This Section deals with the Minutes of Proceedings of General Meeting, Meeting of the Board of Directors and Other Meeting and Resolutions Passed by Postal Ballot.

A detailed breakdown of the section is as follows:

Duty of the Company to prepare, sign and maintain Minutes

According to this Section, it shall be the duty of every company to prepare, sign and maintain the following minutes:

every General Meeting of any class of shareholders or creditors
every resolution passed by postal ballot
every meeting of the Board of Directors
every meeting of every committee of the Board

These minutes shall be prepared, signed and maintained within 30 days of the conclusion of every such meeting concerned, in books kept for such purpose, with their pages consecutively numbered.

All appointments in any of the meetings aforesaid shall be recorded in the minutes.

In addition to the above, it shall be the duty of every company to observe Secretarial Standards with respect to general and Board Meetings, specified by the ICSI and approved as such by the Central Government.

Special Compliance in case of Board Meetings

In case of a Board Meeting or the meeting of a committee of the Board, the minutes shall also contain:

names of the Directors present at the meeting
in case of a resolution passed at the meeting, the names of the directors, if any, dissenting from or not concurring with the resolution

Power of the Chairman of the Meeting

If the Chairman of the meeting is of the opinion that any matter:

is or could reasonably be regarded as defamatory of any person or
is irrelevant or immaterial to the proceedings or
is detrimental to the interests of the company

then such a matter shall not be included in the minutes. The Chairman has the power to exercise absolute discretion with regard to the inclusion or non-inclusion of any matter in the minutes on the grounds specified above.

Evidentiary Value of the Minutes

The minutes of the meeting shall contain their 'fair and correct' summary. When such minutes are kept in accordance with the provisions of Section 118, they are evidence of the proceedings recorded therein. When the minutes have been kept in such manner, following are the results, until the contrary is proved:

the meetings shall be deemed to be duly called and held
all the proceedings shall be deemed to have taken place
the resolutions passed by postal ballot shall be deemed to be duly passed
all appointments of Directors, Key Managerial Personnel, Auditors or Company Secretary in Practice, shall be deemed to be valid.

Non-Compliant Minutes not to be circulated or advertised

Minutes of the general meeting of a company, which are non-compliant with the provisions of this Section, shall not be circulated or advertised at the company's expense, unless they are made compliant.

Penalty for contravention

The penalty for non-compliance of the provisions of this Section in respect of any meeting is Rs. 25,000/- for the Company and Rs. 5,000/- for every officer of the Company who is in default.

Penalty for tampering with Minutes

If a person is found guilty of tampering with the minutes of the meeting, he shall be punishable with imprisonment for a term which may extend to 2 years and with fine which shall not be less than Rs. 25,000/- but which may extend to Rs. 1,00,000/-.

Exception to Section 118

This Section shall not apply to a Section 8 Company as a whole except that minutes may be recorded within 30 days of the conclusion of every meeting in case of companies where the articles of association provide for confirmation of minutes by circulation.

Rules 25 of the Companies (Management and Administration) Rules, 2014

A detailed break down of the Rule is as follows:

Distinct Minute books to be maintained

A distinct minute book shall be maintained for each type of the meeting namely:

General Meetings of the members
Meetings of the Creditors
Meetings of the Board and
Meetings of the Committees of the Board

The minutes of the proceedings of each meeting shall be entered in the books maintained for that purpose along with the date of such entry within 30 days of the conclusion of the meeting.

Each page of Minutes Book to be initialed or signed

Each page of every such minutes book shall be initialed or signed and the last page of the record of proceedings of each meeting or each report in such minutes book shall be dated and signed by:

in case of minutes of Board Meeting or Committees of the Board - by the chairman of the said meeting or the chairman of the next succeeding meeting
in case of minutes of General Meeting - by the Chairman of the said meeting within the aforesaid period of 30 days. In the event of death or inability of that Chairman within that period, the minutes shall be initialed or signed by a Director duly authorized by the Board for such purpose.
in case of every Postal Ballot resolution - by the Chairman of the Board within 30 days. In case there is no Chairman or in the case of death or inability of that Chairman, by a Director duly authorized by the Board for such purpose.

Compliances in respect of Postal Ballot

In case of every resolution passed by Postal Ballot, the following details shall be entered in the minutes book of general meetings along with the date of such entry within 30 days from the date of passing such resolution:

brief report on the postal ballot conducted
details of the resolution proposed
result of the voting
summary of the scrutinizer's report

Permanent Preservation of Minutes Books

Minutes of General Meetings: These shall be kept at the registered office of the Company and shall be preserved permanently and kept in the custody of the Company Secretary or any director duly authorized by the Board.

Minutes of Extraordinary General Meetings: These shall be preserved permanently and kept in the custody of the Company Secretary of the company or any Director duly authorized by the Board for the purpose and shall be kept in the registered office or such place as the Board may decide.

Guidelines for Preservation of Minutes and other Records under Secretarial Standards [Para 8 of SS-1 and Para 18 of SS-2]

The Secretarial Standards provide the following guidelines for the preservation of minutes and other records:

Minutes of all meetings shall be preserved permanently in physical or in electronic form with timestamp
office copies of notices, agenda, notes on agenda and other related papers shall be preserved in order in physical or in electronic form for as long as they remain current or for 8 financial years, whichever is later and may be destroyed later with the approval of the Board.

in case of merger or amalgamation of one company with the other:

in case of merger or amalgamation of one company with another, the minutes of all meetings of the transferor company shall be preserved permanently by the transferee company, notwithstanding that the transferor company might have been dissolved.
office copies of notices, agenda, notes on agenda and other related papers of the transferor company shall be preserved in order in physical or in electronic form for as long as they remain current or for 8 financial years, whichever is later and may be destroyed later with the approval of the Board and permission of the Central Government, wherever applicable.

The Doctrine of Lifting the Corporate Veil in Company Law

noreply@blogger.com (Anshul Kumar Pandey) — Mon, 21 Feb 2022 06:19:00 +0000

Although a company is an artificial juristic personality having separate legal entity, in reality the business is carried on by its member shareholders and key managerial personnel. The doctrine of lifting the corporate veil refers to the scenario when the court completely disregards the company and actually concerns itself with the natural persons running its day-to-day operations. However, the court lifts the corporate veil only in exceptional scenarios which are well settled. Let us take a look at these scenarios one by one:

Statutory Provisions

The Companies Act, 2013 itself contains statutory provisions which enjoin the court to lift or pierce the corporate veil to reach the real persons concerned. These provisions are reproduced, below:

Section 7(7) – Lifting of Corporate Veil to reach the real forces of action

According to this Section, where a company is incorporated by furnishing any false or incorrect information or by suppressing any material fact or by any fraud, the NCLT may:

(a) pass orders for regulation of the management of the company including changes in its memorandum and articles, in public interest or in the interest of the company and its members and creditors; or

(b) direct that liability of the members shall be unlimited; or

(d) pass an order for the winding up of the company; or

(e) pass any other order:

Section 251 (1) – Punishment of incorporation of company by furnishing false information

According to this Section, where it is found that an application by a company for removing the name of the Company from the register of companies has been made with the object of evading the liabilities of the company or with the intention to deceive the creditors or to defraud any other persons, the persons in charge of the management of the company shall, notwithstanding that the company has been notified as dissolved—

(a) be jointly and severally liable to any person or persons who had incurred loss or damage as a result of the company being notified as dissolved; and

(b) be punishable for fraud in the manner as provided in section 447.

Section 339 – Liability for fraudulent conduct of the business during the course of winding up

This Section says that if, during the course of winding up of the company, the business of the company has been carried on with the intent to defraud creditors of the company or any other persons, the NCLT may declare that any person, who is or has been a director, manager, or officer of the company or any persons who were knowingly parties to the carrying on of the business in the manner aforesaid shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company as the Tribunal may direct. In addition, every person who was knowingly a party to the carrying on of the business in the manner aforesaid, shall be liable for action under section 447.

Grounds of Judicial Intervention

The following are the grounds of judicial intervention when the courts shall disregard the corporate veil:

(a) Where the Corporate Veil has been used for commission of fraud or improper conduct: In Jones v Lipman [(1962) All ER 342] L agreed to sell a certain land to J for 5250 pounds. He subsequently changed his mind and to avoid the specific performance of contract, he sold it to a company formed especially for the purpose. The company had L and a clerk of his solicitors as the only members. J brought an action for the specific performance against L and the company. The court looked at the reality of the situation, ignored the transfer and ordered that the company should transfer the land to J.

(b) Where a corporate façade is really only an agency instrumentality: In Re FG Films Ltd. [(1953) 1 WLR 483] an American company produced a film called “Monsson” in India technically in the name of a company incorporated in England. The English company had a capital of 100 Pounds in 1 Pound shares, 90 of which were held by an American director. The production was financed by the American company. In these circumstances, the Board of Trade refused to register it as a British film and their decision was upheld by the court. It would be a mere travesty of the facts to say or to believe that this insignificant company undertook the arrangements for the making of the film. They acted, insofar as they acted at all in the matter, merely as the nominee of, and agent for the American company.

In Smith, Stone & Knight Ltd. V. Birmingham Corpn. [(1939) 4 All ER 116 KB], the parent company held all the shares except a few, treated the subsidiary company’s profits as its own, appointed managers and exercised effectual and constant control. The court concluded that if ever one company could be said to be the agent or employee, or tool or simulacrum of another, that was the case here. Thus, exclusive control in all respects and without any person having any voice in the affairs is the surest indication of agency or trust. As in that case the subsidiary company could not be said to be operative on its own behalf but on behalf of the parent company.

(c) Where the conduct conflicts with public policy: In Daimler Co Ltd. V. Continental Tyre & Rubber Co. Ltd. [(1916) 2 AC 307] the House of Lords laid down that a company incorporated in the UK may assume an enemy character when persons in de facto control of its affairs are residents in any enemy country or, wherever resident, are acting under the control of enemies. Accordingly the company was not allowed to proceed with the action to recover trade debt. If the action had been allowed the company would have been used as a machinery by which the purpose of giving money to the enemy would be accomplished. That would be monstrous and against public policy.

(d) Tax Evasion: In Apthorpe v Peter Schoenhofen Brewing Co Ltd. [(1899) 4 TC 41] In New York, aliens were not permitted to own property. An English corporation bought a New York company's operations and assets. The American firm, on the other hand, was maintained on foot to preserve control of the area. The English corporation was in charge of financing and running the business. It was decided that because the American firm had become the agent of the English company, all of its profits were subject to be taxed as the English company's income.

In Re Sir Dinshaw Maneckjee Petit (AIR 1927 Bombay 371) the assessee was a wealthy man enjoying large dividend and interest income. He formed four private companies and agreed with each to hold a block of investment as an agent for it. Income received was credited in the accounts of the company. The company handed back the amounts to him as pretended loans. This way he divided his income into four parts in order to reduce his tax liability.

The Court held: “the company was formed by the assessee purely and simply as a means of avoiding supertax and the company is nothing more than the assessee himself. It did no business, but was created simply as a legal entity to ostensibly receive the dividends and interests and to hand them over to the assessee as pretended loans.” The court decided to disregard the corporate entity as it was being used for tax evasion.

In CIT v Associated Clothiers Ltd. (AIR 1963 Cal 629) the assessee (Associated Clothiers) formed a company holding all its shares. They sold certain premises to the new company. The difference between the selling price and the cost of the property in the hands of assessees was assessed as their income. They contended that this could not be done as there was no commercial sale, but only a transfer from self to self. The court rejected this and held that it was sale from one entity to another and not a trading with oneself.

In CIT v Sri Meenakshi Mills Ltd. (AIR 1967 SC 819) the assessee companies borrowed moneys from the Madurai Branch of the bank on the security of the fixed deposits made by their branches with the Pudukottai branch of the bank. The loans granted to the company were far in excess to the available profits at Pudukottai. The Income Tax officer included the entire profits of the assessee companies including the interest receipts from the Pudukottai branch in the assessment of the assessee companies, since the overdraft availed of by the assessee companies far exceeded the available profits. The question arose: “Whether on the facts and in the circumstances of the case, the taxing of the entire interest earned on the fixed deposits made out of the profits earned in Pudukottai by the assessee’s branches in Pudukottai branch of the Bank of Madurai is correct?”

The Tribunal concluded that the Bank itself was started at Madurai and a branch was opened at Padukottai only with a view to helping the financial operations of the Director and the mills in which he was vitally interested. The Tribunal found that the Padukottai branch of the Bank had transmitted funds deposited by the assessee companies for enabling the Madurai branch to advance loans at interest to the assessee companies and the transmission of the funds was made with the knowledge of the assessee companies who were the major shareholders in the Bank. Thus, it disregarded the corporate façade of the assessee companies.

In Vodafone International Holdings B.V. v. Union of India & Anr. [SLP (C) No. 26529 of 2010] the Court recognised the fundamental principle of the corporate veil by noting that, “The approach of both the corporate and tax laws, particularly in the matter of corporate taxation, generally is founded on the abovementioned separate entity principle, i.e., treat a company as a separate person. The Indian Income Tax Act, 1961, in the matter of corporate taxation, is founded on the principle of the independence of companies and other entities subject to income-tax.” It observed in the context of parent / subsidiary relationships, that it is generally accepted that the group parent company would give guidance to group subsidiaries, but that by itself would not justify piercing the veil or imply that the subsidiaries are to be deemed residents of the State in which the parent company resides, and that “a subsidiary and its parent are totally distinct tax payers”.

The court listed the following six factors which might be considered to determine whether the transaction is a bogus and whether in a specific case, the corporate veil may be lifted: “(i) the concept of participation in investment, (ii) the duration of time during which the Holding Structure exists; (iii) the period of business operations in India; (iv) the generation of taxable revenues in India; (v) the timing of the exit; and (vi) the continuity of business on such exit.”

In the final analysis, the Supreme Court decided against lifting the corporate veil in Vodafone, as the tax authorities failed to establish that the transaction was a bogus or tax avoidance scheme.

(e) Avoidance of Welfare Legislation: In Workmen of Associated Rubber Industry v. Associated Rubber Industry Ltd. [(1985) 4 SCC 114] a company created a subsidiary and transferred its investment holdings to it in a bid to reduce its liability to pay bonus to its workers. The court brushed aside the separate existence of the subsidiary company and held that it is the duty of the court in every case where ingenuity is expended to avoid taxing and welfare legislations, to get behind the smoke screens and discover the true state of affairs.

In National Dock Labour Board v Pinn & Wheeler Ltd. [1989 BCLC 647 QBD] a group of three companies working in the same geographical location of a dock were not allowed to claim that they should be treated as three different companies when their purpose was to avoid the effect of the Dock Labour Scheme.

Conclusion

Lifting or piercing of the corporate veil of the company is resorted to in exceptional circumstances and generally, the courts refrain from doing so. However, even though the real persons behind the company might be liable for the wrongdoings under the garb of the corporate personality, certain criminal charges cannot be levelled against the company itself. For instance, a company cannot be prosecuted for cheating and conspiracy because such offences require mens rea. [A. K. Khosla v. T.S. Venketesan (1994) 80 Comp Cas 81 Cal]. Similarly, a company cannot be imprisoned for evasion of taxes or any other crime. But penalties can be imposed. [Maniam Transports v. S. K. Moorthy (1993) 1 Comp LJ 153 Mad].

Advantages and Disadvantages of a Corporate Form of Business in India

noreply@blogger.com (Anshul Kumar Pandey) — Tue, 15 Feb 2022 09:13:00 +0000

Lack of quality jobs and an increasingly virtual work culture brought about due to the COVID-19 pandemic has made many people to take the leap of starting their own business. Yet, first time entrepreneurs struggle with the question: should I start a company? What are the advantages of starting one? What would be my risk and liabilities if I start a company?

This article aims to answer all those questions and elaborates on the advantages and disadvantages of a corporate form of business in India.

What is a Company?

Section 2(20) of the Companies Act, 2013 defines the term “company” to mean “a company incorporated under the Companies Act 2013 or any previous company law”.

The Merriam Webster’s Dictionary of Law (First Indian Edition 2005) defines a “company” as “an association of persons for carrying on a commercial or industrial enterprise”.

Thus, it can be seen that although the Companies Act, 2013 does not define the meaning, nature and characteristics of a company and restricts itself only to its incorporation, the word is commonly understood to mean a group of individuals carrying out commercial activity under a common name.

Advantages of a Company

The next obvious question that arises is that okay, I know what a company is. I have even worked in some of them. However, what advantages will accrue to me if I start one?

Limited Liability - First of all, let us ask ourselves: why did the need of a company arise in the first place? Earlier, businesses were carried out in partnerships – something which is common even today. However, one of the main disadvantages of a partnership form of business is the unlimited liability of its partners. Simply put, if the business goes south, it takes the partners with itself – lock, stock and barrel. However, a company or a corporate form of business limits the liability of its office bearers. That is why, if one were to look at the definition section again in the Companies Act, 2013, the definition of the term “company” is immediately followed by a “company limited by guarantee” and a “company limited by shares”. The word ‘limited’ indicates limited liability.

Separate Legal Entity – A company is a juristic person and has its own legal personality. It cannot be confused with its Directors or Shareholders. The latter may keep changing, and yet, the company never changes with them. The advantages of this legal status were summed up in Salomon v. Salomon & Co. [(1895-99) All ER Rep 33] and reiterated by the Supreme Court in Tata Engineering & Locomotive Co. Ltd. v. State of Bihar (AIR 1965 SC 40):

· The entity of the corporation is entirely separate from its shareholders;

· it bears its name and has a seal of its own;

· its assets are separate and distinct from those of its members;

· it can sue and be sued exclusively for its own purpose;

· its creditors cannot obtain satisfaction from the assets of its members;

· the liability of the members or the shareholders is limited to the capital invested by them;

· the creditors of the members have no right to the assets of the corporation.

Perpetual Succession – A company never dies. Its members may retire, become insolvent or die, but that has no effect on the company. According to Blackstone, a company is in perpetual succession “in the like manner as the river Thames is still the same river, though the parts which compose it are changing every instant.” During the World War II, all the members of one private company, while in a general meeting, were killed by a bomb. But the company survived; not even a hydrogen bomb could have destroyed it (Gower, Principles of Modern Company Law, 3rd Edition).

Separate Property – The property of the company is not the property of its shareholders. The company is capable of holding and disposing of property in its own name. This is unlike Partnership form of business where the assets of the partnership are the assets of its partners. “The property is vested in the company as a body corporate, and no changes of individual membership affect the title. The property, however much, the shareholders may come and go, remains vested in the company, and the company can convey, assign, mortgage, or otherwise deal with it irrespective of these mutations” (Palmer’s Private Companies, 42nd Edition).

Transferable Shares – Section 44 of the Companies Act, 2013 provides as follows:

“The shares or debentures or other interest of any member in a company shall be movable property, transferable in the manner provided by the articles of the company.”

The main advantage of the corporate form of business is that its shares are easily transferable which enables an investor to get back his investment without having to withdraw the money from the company. This is a win-win situation for the investor as well as the company as the former gets liquidity while the latter gets stability.

Capacity to Sue and Be Sued – A company, being an artificial juridical entity, can sue and be sued in its own name. However, in a criminal complaint filed by it, it has to be represented by an Authorized Representative before the Court or otherwise its complaint is liable to be dismissed just like that of an ordinary complainant’s, due to his absence. It can take legal action and defend legal actions for its rights and liabilities like an ordinary person.

Professional Management and Finances – The corporate form of business gives a lot of independence to its managerial class to function as there is no human employer and the shareholders of the company exercise a formative control only for name-sake. In addition, a company is the only form of business which can raise capital from the public either by way of shares or debentures.

Disadvantages of a Company

Lifting the Corporate Veil – Although separate legal entity of a company is the bedrock of the whole company law, piercing the corporate veil is permissible in certain exceptional circumstances. The corporate veil is said to be lifted when the court ignores the company and concerns itself directly with the members or the managers.

Formality and Expense – Since there is a statutory procedure laid down in the Companies Act, 2013 for incorporation of a company, therefore, it is a formal affair and involves considerable compliances and expenditure. Due to the numerous compliances and penalties associated with non-compliance, it is even said that “corporate directors wake up each morning as potential criminals.”

Company is not a Citizen – A company is not a natural person, and hence, it cannot claim citizenship in India. In State Trading Corporation of India Ltd. v. CTO [AIR 1963 SC 1811], a special bench of the Supreme Court was dealing with the State Trading Corporation of India which is incorporated as private company under the Companies Act. All the shares are held by the President of India and two secretaries in their official capacities. The question was whether the corporation was a citizen. It was argued that ‘if the corporate veil is pierced, one sees three persons who are admittedly the citizens of India’ and therefore the corporation, should also be regarded as a citizen.

However, the SC held that neither the provisions of the Constitution, Part II, nor of the Citizenship Act, either confer the right of citizenship on, or recognize as citizen, any person other than a natural person. Hence, a corporation is a person in the eyes of the law, but it is not a citizen to claim fundamental rights under Article 19 of the Constitution.

Although a company cannot be a citizen, yet it has a nationality, domicile and residence. It resides for the purpose of income tax where its real business is carried on.

Conclusion

Although there are both advantages and disadvantages in a corporate or company form of business organization, upon analysis, one can safely conclude that the advantages overweigh the disadvantages. When we compare the different forms of business organization available to entrepreneurs, again the corporate form of business comes out on the top. As a result, if you are a first time entrepreneur, looking to provide goods or services to potential clients, you would be well advised to choose the company or corporate form of business organization.

Offer, Acceptance and Revocation in the Indian Contract Act, 1872

noreply@blogger.com (Anshul Kumar Pandey) — Mon, 14 Feb 2022 11:36:00 +0000

In the information age, with instantaneous modes of communication, we enter into and terminate numerous contracts on a daily basis. However, the need for a proper understanding of when the offer is initiated, how it is to be accepted, and when it is finally concluded, eludes most of the people even in the legal fraternity. This article aims to examine the scheme and essentials of offer, communication and acceptance provided for in the Indian Contract Act, 1872, which is the governing legislation on Contracts.

What is an offer?

The Indian Contract Act does not use the word ‘offer’. Instead, it uses the word ‘proposal’. Section 2(a) lays down that when one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtain the assent of the other to such act or abstinence, he is said to make a proposal.

How is an offer communicated?

Section 3 deals with Communication, Acceptance and Revocation of Proposals and it reads as follows:

The communication of proposals the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it.

Let us break down this Section bit by bit.

Say, you want to communicate an offer.

In order to do so, Section 3 says, that it will be deemed that you have communicated your offer if

a) You do some act or refrain from doing something (omission)

b) Through such act or omission, you intend to communicate your offer

c) Even if you do not intend so, your act or omission, has the effect of communicating such offer

Going by the language of the section, it is obvious that these same ingredients apply to acceptances and revocations of offer too.

When is the communication of offer complete?

For a person reading the Indian Contract Act in 2022, it would seem a bit odd as to why the statute lays down separate sections for communication and completion of communication. There is just a split-second difference in when I send an email and it is received in the inbox of the person to whom I sent it, provided the email address is correct. Same is the case with text messages, video calls and other similar modes of instantaneous communication.

However, one must remember that the Indian Contract Act was enacted in 1872 – a full 150 years ago. At that time, the instantaneous modes of communication did not exist, and yet, business was carried out and hence, it became necessary to specifically define when the communication of an offer would be complete so as to properly adjudicate the disputes that would arise.

Section 4 provides specific requirements of a communication to be complete. It reads as follows:

The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made…

This Section makes it clear that the communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.

Illustration (a) to this Section is as follows:

A proposes, by letter, to sell a house to B at a certain price.

The communication of a proposal is complete when B receives the letter.

What is Acceptance?

Section 2(b) defines acceptance. When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise.

Essentials of Acceptance

The acceptance of an offer is made in accordance with Section 3 (supra).

Section 7 lays down the most essential requirements of any sort of acceptance. It is as follows:

Section 7 - Acceptance must be absolute —In order to convert a proposal into a promise, the acceptance must—

(1) be absolute and unqualified;

(2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but if he fails to do so, he accepts the acceptance.

Thus, the essentials of a valid acceptance are:

a) It must be absolute

b) It must be unqualified

c) It must be made in some usual or reasonable manner or in a way specified, unless waived.

Acceptance can be express or implied. It can also be through conduct. Section 8 of the Indian Contract Act provides for situations where acceptance of an offer may be made by conduct. It reads as follows:

Section 8 - Acceptance by performing conditions, or receiving consideration — Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal.

In Carlill v. Carbolic Smoke Ball Co., the Respondent, believing Appellant’s advertisement that its product would prevent influenza, bought a Carbolic Smoke Ball and used it as directed from November 20, 1891 until January 17, 1892, when she caught the flu. The Respondent brought suit to recover the 100£, which the Court found her entitled to recover. The Appellant approached the court through appeal. It was held that An offer made to the public at large can ripen into a contract if anyone fulfils the conditions of the contract. The performance of the conditions implies their acceptance and also establishes the consideration. A specific Notification of acceptance is not required in such situations.

Judicial Precedents regarding Acceptance

Silence cannot be a mode of Acceptance - In Felthouse v. Bindley, Felthouse wrote a letter to his nephew to buy his horse stating that if he did not hear about his acceptance, he will consider the offer to be approved. The nephew did not reply but told his auctioneer about the same. The auctioneer sold the horse by mistake and the uncle sued him for conversion. The court decided that no contract is formed as acceptance was not communicated at all.

Exception - Agreement Sub Silentio - When silence, coupled with conduct, amounts to a positive act, it may be construed as valid acceptance. In Hindustan Coop Insurance Society v. Shyam Sunder [AIR 1952 Cal 691], an insurance company encashed the cheque of the premium given by the proposer. However, the proposer died after a few days. The dependents of the deceased then sued the company for their compensation. It was contended by the company that they never communicated their acceptance to the proposer and hence, no contract had come into being. The court held that the encashment of the cheque by the company was an acceptance on their part and therefore, no communication was required for it. This was an implied acceptance. Thus, the company was liable to pay the compensation.

Communication of acceptance must be made by the offeree or his duly authorized person - In Powell v. Lee, Powell was selected by Board of Managers for post of headmaster. One of the members of board unauthorizedly communicated this to him and later he wasn’t selected. The court adjudicated that there was no formal communication by any authorized person on behalf of Board which doesn’t give rise to any contract. When any acceptance is made to the wrong person or posted at wrong address, the offeror is held not liable.

Mere Mental Resolve to accept will not amount to acceptance - When A received an offer through a letter, and kept the letter in a drawer by mentally resolving to accept it, but did not communicate such acceptance, it was held that such mental resolve will not amount to an agreement.

How is an acceptance communicated?

Now, this is where things get a little technical, and it is not without cause. The famous quotation of Anson comes to the mind:

“An acceptance is to an offer, what a lighted match is to a train of gunpowder.”

What Anson is really trying to say, is that just as putting a lighted match to a train of gunpowder would result in an explosion, similarly, an acceptance made to an offer would result in an agreement. During the times that he lived in, there were no instantaneous modes of communication. So, he contended that just as an explosion is irreversible, similarly, an acceptance to an offer, once given, gives rise to an agreement and is irreversible. However, in today’s day and age, an acceptance can be revoked by using even faster modes of communication before the acceptance itself reaches the proposer.

We return to Section 4, where it is provided:

The communication of an acceptance is complete,—

as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor;

as against the acceptor, when it comes to the knowledge of the proposer.

Illustration (b) to the Section provides as follows:

B accepts A's proposal by a letter sent by post.

The communication of the acceptance is complete,

as against A when the letter is posted;

as against B, when the letter is received by A.

Now, suppose B, instead of accepting A’s proposal, made certain minor changes to it, and said “I am willing to accept your proposal on these modified terms”. This would amount to a counter-offer, which is also known as conditional acceptance.

Suppose again, that A had mentioned in his letter, that “You must communicate the acceptance of this offer within 24 hours, otherwise it would lapse”. B would have to communicate the acceptance of the offer within 24 hours. This is subject to the condition that A does not revoke his offer before those 24 hours have lapsed.

Revocation

The revocation of an offer and acceptance is made in accordance with Section 3 (supra).

Now, Section 4 provides for communication of revocation as follows:

The communication of a revocation is complete, —

as against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it;

as against the person to whom it is made, when it comes to his knowledge.

Illustration (c) provides:

A revokes his proposal by telegram.

The revocation is complete as against A when the telegram is despatched. It is complete as against B when B receives it.

B revokes his acceptance by telegram. B’s revocation is complete as against B when the telegram is despatched, and as against A when it reaches him.

Section 5 lays down as to when revocation of offer and acceptances can be made. It reads as follows:

Section 5 - Revocation of proposals and acceptances — A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards.

An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards.

Illustrations

A proposes, by a letter sent by post, to sell his house to B.

B accepts the proposal by a letter sent by post.

A may revoke his proposal at any time before or at the moment when B posts his letter of acceptance, but not afterwards.

B may revoke his acceptance at any time before or at the moment when the letter communicating it reaches A, but not afterwards.

Section 6 provides as to how revocation is made. It lays down:

Section 6 - Revocation how made — A proposal is revoked—

(1) by the communication of notice of revocation by the proposer to the other party;

(2) by the lapse of the time prescribed in such proposal for its acceptance, or, if no time is so prescribed, by the lapse of a reasonable time, without communication of the acceptance;

(3) by the failure of the acceptor to fulfil a condition precedent to acceptance; or

(4) by the death or insanity of the proposer, if the fact of his death or insanity comes to the knowledge of the acceptor before acceptance.

An important distinction needs to be noted between Section 3 and Section 6. Section 3 refers to those scenarios where the revocation is deemed to be made either because the party intended to revoke, or its act or omission communicated such revocation. Section 6, on the other hand, is much wider in scope. It does not only deal with scenarios where revocation is intended or communicated, but also lists other scenarios which bring about revocation.

Conclusion

Offer and Acceptance forms the bedrock of common law understanding of agreements and contracts. The fact that the Indian Contract Act, 1872 has required little or no changes at all even after 150 years of its enactment is a testament to the soundness of the principles laid therein and their wide legal as well as commercial acceptability. A general awareness of the principles and concepts of the Indian Contract Act, 1872 would ensure the reduction of one sided contracts which give rise to disputes and ultimately end up in litigation.

An Analysis of LinkedIn’s User Agreement

noreply@blogger.com (Anshul Kumar Pandey) — Mon, 24 Jan 2022 07:23:00 +0000

Every working professional is familiar with LinkedIn – the place where you highlight your ‘achievement’ of participating in a client call as “ability to effectively work in teams, coordinate and share responsibilities”. 😉 It is your digital resume and a place that you turn to when you are looking for or looking to switch jobs.

In its User Agreement, LinkedIn declares that its mission is to help professionals all over the world to be productive and successful. However, what are the terms and conditions under which LinkedIn offers this productivity and success? Let us take a look.

Contract

Legally Binding Contract – Clicking on “Join Now” “Join LinkedIn” or “Sign Up” and registering on the website constitutes a legally binding contract between LinkedIn and the User. An unregistered user is a “visitor” and a registered user is a “member” of LinkedIn. This contract is applicable to all the LinkedIn related websites, apps and plugins including the offsite collection of data for LinkedIn’s ads.

“Designated Countries” – This term refers to countries in the European Union (EU), European Economic Area (EEA) and Switzerland.

Contracting Entity – If a member resides in Designated Countries, she enters into a contract with LinkedIn Ireland Unlimited Company (“LinkedIn Ireland”). Otherwise, she enters into a contract with LinkedIn Corporation (“LinkedIn Corp.”). The contracting entity will be the controller of the member’s personal data.

Contract Applicable on Members and Visitors – This contract is applicable both on Members and Visitors as one can access some features of LinkedIn even without registering. The data collected from both visitors and members is under the Privacy Policy and Cookie Policy of the company.

LinkedIn has the right to Modify the Contract, Privacy Policy and Cookie Policy from time to time. The members shall receive notice in case of material changes to these documents. No retroactive changes shall be introduced by the company and continued use of services shall be construed as implied consent to these changes.

Obligations

Eligibility to Use LinkedIn

1. One must be 16 years or older to use LinkedIn. However, members who registered prior to June 2017 under the previous User Agreement when they were less than 16 years of age may continue to use the services.
2. One (1) LinkedIn account per eligible user is allowed.
3. Such an account must be in the real name of the eligible user.

Violation of Terms - Creating an account on behalf of someone less than 16 years of age or creating an account with false information is a violation of the terms of the User Agreement.

Account- Account holders are responsible for anything that happens through their account unless they close it or report misuse. They have to follow the list of Dos and Don’ts and LinkedIn’s Professional Community Policies.

Premium Services – Members can get an invoice for their purchase of Premium Services under “Purchase History”. Purchases are subject to Additional Terms and Refund Policy of LinkedIn. LinkedIn will calculate taxes based on the billing information provided and may store and continue billing the payment method even after it has expired.

Notices – These will be sent to the member either within the service or on the contact information provided by her (email, mobile number, physical address).

Sharing of Content – Job searching activities are not notified to the connections network or the public. They are only shared with the job poster. LinkedIn can remove any information or content with or without notice.

Rights and Limits

Non-Exclusive License – Members are the owners of all the content, feedback and personal information they provide LinkedIn, but they also provide a Non-Exclusive License to it to LinkedIn and its affiliates.

Following are some of the key features of this license:

(i) It is worldwide, transferable and sub-licensable license.
(ii) It grants LinkedIn and its affiliates the right to

· Use
· Copy
· Modify
· Distribute
· Publish and process

any information that members may provide

· without any further consent
· without any notice
· without compensation

Following are some of the Limitations of this Non-Exclusive License:

(i) Extent of Modification – LinkedIn’s Right to Modify the content posted by members extends to editing and making format changes such as translating, transcribing, modifying the size, layout, file type or removing metadata. However, it cannot modify the meaning of expression.

(ii) Social Actions – LinkedIn and its Affiliates have the right, without payment to its members or others, to serve ads near the member’s content and information and a member’s social actions (like, comment, subscribe, follow etc.) may be visible and included with ads. A member’s name and photo may be used to promote a service feature, subject to their settings.

(iii) Separate Consent – LinkedIn and its affiliates will ask for a member’s separate consent if:

- they want to include their content in the advertisements for products and services of third parties to others.
- they want to give others the right to publish a member’s content beyond the services.

However, in case of “public” posts, LinkedIn members are allowed to embed another member’s posts onto third party services. LinkedIn also allows search engines to make that public content findable through their services.

(iv) Termination – This Non-Exclusive License can be terminated by a member by deleting such content from LinkedIn’s services or by closing their account.

Personal Data – LinkedIn has the following rights to a member’s personal data and information subject to its Privacy Policy and the member’s account settings:

- access
- store
- process
- use

Users also promise to provide content and information that is truthful and does not violate any law or anyone else’s rights (including intellectual property rights).

LinkedIn is not a storage service – It has no obligation to store, maintain or provide a copy of the content or information provided by the members except to the extent required by applicable law and its Privacy Policy.

No Responsibility for Misuse – LinkedIn is not responsible for issue of its services where other member’s post content that is false, misleading, illegal, offensive or otherwise harmful. It does not generally review such content and hence assumes no responsibility for the same.

Services offered by Members - LinkedIn connects Members offering services such as (career coaching, accounting etc.) with member’s seeking services. However, one must be at least 18 years of age to offer, perform or procure services on LinkedIn. In addition, there are the following riders:

o LinkedIn does not supervise, direct, control or monitor members in the performance of these services.
o It is not responsible for offering, performance and procurement of these services.
o It does not endorse any particular service offered by any member.
o Nothing shall create employment, agency or joint venture relationship between LinkedIn and any member offering services.

Members who offer services on LinkedIn have to abide by its Professional Community Policies.

As a service provider, LinkedIn helps members to register and attend events organized by other members and connect with other attendees. However, this is also subject to the following conditions: - LinkedIn is not responsible for the conduct of any members or other attendees at such event

- LinkedIn does not endorse any particular event listed on its service.
- It does not review and/or vet any of these events.
- That members shall adhere to the terms and conditions that apply to such events.

Limitation, Restriction, Suspension and Termination - LinkedIn reserves the right to limit how a member uses its services. It also reserves the right to restrict, suspend or terminate a member’s account in case of breach of this User Agreement and misuse of its services.

Intellectual Property Rights – LinkedIn, “in” logos, other LinkedIn trademarks, service marks, graphics and logos used for LinkedIn’s services are trademarks or registered trademarks of LinkedIn. Trademarks and Logos used in connection with the services are the trademarks of their respective owners.

Automated Processing – Information and data provided by the members is used for making recommendations for content, connections and features.

Limit of Liability

No Warranty Disclaimer – LinkedIn and its affiliates:

(i) make no representation or warranty about the services being uninterrupted and error-free.
(ii) provide the services on an “as is” and “as available” basis.
(iii) they disclaim any implied or statutory warranty including any implied warranty regarding:

o title
o accuracy of data
o non-infringement
o merchantability
o fitness for a particular purpose.

Exclusion of Liability – LinkedIn and its affiliates will not be liable for:

(i) lost profits
(ii) lost business opportunities
(iii) reputation (eg. offensive or defamatory statements)
(iv) loss of data
(v) any indirect, incidental, consequential, punitive or special damages
(vi) any amount that exceeds
o the total fees paid or payable by a member for LinkedIn/its affiliate’s services or
o US$1000

Basis of Bargain – Notwithstanding prior notice of the possibility of any damage such as outlined above, the limitations of liability described in this section form the basis of the bargain between a user and LinkedIn and shall apply to any claims of liability such as Warranty, tort, negligence, contract or law.

Situations where LinkedIn is liable – LinkedIn is liable in the following situations:

(i) Death
(ii) Personal injury
(iii) Fraud
(iv) Gross negligence
(v) Intentional misconduct
(vi) In cases of negligence where a material obligation has been breached. A material obligation is defined as an obligation which forms a pre-requisite to LinkedIn’s delivery of services and on which members reasonably rely.

In order to prove point (vi), the following conditions must be fulfilled:

a. Damages were directly caused by the breach of material obligation
b. Such damages were forseeable upon conclusion of this contract
c. Such damages are to the extent that are typical in the context of this contract.

Termination

The following shall survive termination of this contract: (i) LinkedIn’s right to use and disclose a member’s feedback
(ii) Member’s and/or visitors rights to further re-share content and information shared by the member through LinkedIn’s services.
(iii) Any amounts owed by either party prior to termination
(iv) Sections on Limit of Liability, Governing Law and Dispute Resolution, General Terms and LinkedIn’s Don’ts.

Governing Law and Dispute Resolution

(i) For all members – LinkedIn is liable under the consumer protection laws of the country of member’s residence.
(ii) For members belonging to Designated Countries – The courts in Dublin, Ireland shall have exclusive jurisdiction over any dispute or claims arising out of this contract/services. These disputes or claims shall be governed exclusively by Irish Law.
(iii) For members not belonging to Designated Countries – The courts in Santa Clara County, California, USA shall have exclusive jurisdiction over any dispute or claims arising out of this contract/services. These disputes or claims shall be exclusively governed by Californian Law.

General Terms

Severability – If a court finds any terms of this contract unenforceable, it shall modify such terms in order to achieve the intent of the parties to this agreement. If that is not possible, the court shall severe that unenforceable part and still enforce the rest of the contract.

Waiver – If LinkedIn doesn’t act to enforce a breach of this contract, it shall not mean that it has waived its rights to do so.

Assignment and Transfer – A member cannot assign or transfer this contract to anyone without LinkedIn’s consent. However, LinkedIn can assign this contract to its affiliates or a party that buys it without the user’s consent.

Legal Notice – Any Legal Notice to LinkedIn (for users outside designated countries) must be addressed to:

LinkedIn Corporation
Attn: Legal Dept. (Privacy Policy and User Agreement)
1000 W. Maude Avenue
Sunnyvale, CA 94085
USA

LinkedIn Do’s and Don’ts

Do’s

A user shall:

(i) A user shall comply with all applicable laws including but not limited to:

o Privacy Laws
o Intellectual Property Laws
o Anti-Spam Laws
o Export Control Laws
o Tax Laws and
o Regulatory Requirements

(ii) Provide accurate information and keep it updated
(iii) Use his/her real name on the profile
(iv) Use LinkedIn’s services in a professional manner

Don’ts

A user shall not:

(i) create a false identity, misrepresent his/her identity, create a member profile for anyone other than himself (a real person) or use or attempt to use another’s account.
(ii) Develop, support or use any of the following to scrape the services or otherwise copy profiles and other data from services

o Software
o Devices
o Scripts
o Robots
o Crawlers
o Browser plugins
o Add-ons
o Any other technology/means/processes

(iii) Override any security feature or
Circumvent any access controls or
Use limits of the service such as caps on keyword searches or profile views
(iv) Without the consent of LinkedIn:

o Copy
o Use
o Disclose
o Distribute
any information obtained from the services, whether directly or by the use of third parties such as LinkedIn.

(v) Disclose any other information without consent
(vi) Violate Intellectual Property Rights of others including:

o Copyrights
o Patents
o Trademarks
o Trade Secrets or
o Other Proprietary Rights

(vii) Violate Intellectual Property Rights of LinkedIn including, but not limited to:

o Copying/distributing learning videos or other materials
o Copying/distributing technology unless it is released under open source licenses
o Using the word LinkedIn or its Logos in any business name, email or URL except as provided in the Brand Guidelines.

(viii) Post anything that contains software viruses/worms/any other harmful code
(ix) Do any of the following for technology that is not open source:

o Reverse Engineer
o Decompile
o Disassemble
o Decipher
o Otherwise attempt to derive the source code

(x) Imply or state that he is affiliated with or endorsed by LinkedIn without LinkedIn’s express consent
(xi) Do the following without LinkedIn’s consent

o Rent
o Lease
o Loan
o Trade
o Sell/Re-Sell
o Otherwise monetize the services or related data or access to the same

(xii) A ‘deep link’ is a type of a link that sends users directly to an app instead of a website or a store. LinkedIn prohibits users from deep linking to its services for any purpose other than to promote their profile or a group on their services.
(xiii) Use bots or other automated methods for the following:

o Access the services
o Add or download contacts
o Send or redirect messages

(xiv) Monitor the services’ availability, performance or functionality for any competitive purpose
(xv) Engage in “framing”, “mirroring” or otherwise simulating the appearance or function of the services
(xvi) Overlay or otherwise modify the services or their appearance. Examples include inserting elements into the service or removing, covering or obscuring an advertisement included in the services.
(xvii) Interfere with the operation of or place unreasonable load on the services, including but not limited to:

o Spam
o Denial of service
o Attack
o Viruses or
o Gaming algorithms

(xviii) Violate:

o Professional Community Policies
o Additional Terms of a Specific Service
o Bing Maps Terms wherever applicable.

Conclusion

As is clear, the user agreement of LinkedIn is quite exhaustive and is inextricably tied up to its other legal policies such as Privacy Policy, Cookie Policy, Copyright Policy, Professional Community Policies and even Map Terms of Bing Search Engine. Any violation of the terms of this agreement is a ground for LinkedIn to terminate a user’s access to its services. There is no reference to any arbitration and all claims and disputes arising from this agreement shall be governed by the Laws of California in the courts of Santa Clara County, California, USA (for users from non-designated countries).

How to Handle a Cheque Bounce Case

noreply@blogger.com (Anshul Kumar Pandey) — Tue, 12 Oct 2021 07:33:00 +0000

The following are the important takeaways from "How to handle a cheque bounce case" a webinar on Lawsikho by Vignesh Raj.

There are three parts of the same:

How to proceed with issuing of Notice and filing of complaint
How to proceed with the case
Factors for consideration

The first step while proceeding with a Section 138 Negotiable Instruments Act case is that it is important to confirm that the cheque was issued towards the discharge of a debt. If the cheque was not issued towards discharge of debt, a case under Section 138 NI Act is not maintainable. Once, you do that, send a legal notice within 30 days of the check 'bounce'. If the drawer fails to make payment within 15 days of receipt of the demand notice, then a complete complaint be filed within 30 days. This is known as the 30-15-30 rule.

Now the question arises who do you send the notice to?

It is always sent to the person who has failed to discharge his debt. But what happens when a cheque is issued by a Corporate Entity? A company is a legal person in its own right. However, you cannot send a company behind the bars. You need a physical person for that. Generally it is considered that a person who is responsible for conduct of business of the company shall be deemed guilty of the offence [Section 141 of the NI Act]. This means that a person who has signed the cheque on behalf of the company is deemed to have committed the offence along with the company. Also, all such persons who are responsible for the day to day conduct of the business of the company shall be responsible along with the company. Say the accounts officer has signed the cheque and the Managing Director of the company was conducting its day to day affairs. The person who sends the demand notice has to address the notice to all the three i.e. the Accounts Officer, the Managing Director as well as the Company.

How to deal with a cheque bounce case as an Advocate?

The legal notice, known as the demand notice in this case, must be delivered to the accused usually through registered post acknowledgement due. You should keep a copy of the demand notice with you. There may be cases where people send demand notices by email. Unless there is regular correspondence to prove that the email was in fact being used by the sufficient service of notice on the accused or until or unless a receipt is received from such person that he has received the email, such service by email shall not be considered sufficient service. Proof of receipt is only upon acknowledgement and there has to be a record of such acknowledgement. On the other hand, if you send the demand notice by courier, you can have the tracking report as proof of service.

Essentials to file a Complaint u/s 138 NI Act

1. Ensure that you satisfy all the conditions for a NI Act case to be maintainable.

2. Present the cheque along with the return memo and provide all the documents which form the basis of the assertion that the cheque was issued towards discharge of debt.

3. Ensure that you are able to prove, beyond reasonable doubt, that you received a purchase order and that you were able to satisfy the said order through proof of sale of goods or provision of services without there being any dispute regarding the quality of goods or services or without there being any dispute regarding the existence of debt.

What is the remedy that a person can have if the cheque is dishonoured and he hasn't taken any action for considerable amount of time?

People usually present the cheque if it is within the first 6 months of date of issuance of the cheque to get a further return memo on the basis of which a complaint under section 138 NI Act is fixed. One can also file a civil suit for the recovery of sums due and payable within a period of 3 years from the date of cause of action.

How do the proceedings take place in a 138 NI Act case?

The proceedings take place as if it is a summons case. The first requirement that any Advocate is required to do is that you have to present the complaint before a Magistrate carrying the originals of the Cheque, the Cheque return memo, the Notice and the reply received and also all the documents which show the existence of debt in the first place. Post that you have the 'sworn statement' wherein the complainant is brought for the examination of the originals of the document and thereafter, notice is issued to the accused to be present before the court.

If the accused arrives, he will have to enter appearance before the court. If not, there may be a Non-Bailable Warrant issued or the court may ask to furnish a fresh address of the accused as the case maybe. Then the case moves into trial.

More often than not, before the cases reaches the stage of judgment, payment of the cheque bounce amount due and payable will stand satisfied on the payment of the principal amount. The court will not ask for costs of litigation, any interest etc. if you are able to discharge the debt due on the cheque. But in the event the case reaches the stage where the judgment is passed, the court may ask you to pay all the amounts mentioned above over and above the amount due and payable.

What can an accused do in a cheque bounce case?

If all the three essentials regarding a cheque bounce case are fulfilled against the accused, there is not much that he can do, it is a simple open and shut case. However, there are situations, especially in a case against a company, where the accused can be let go especially if he is not made aware of the complaint or it includes him without any basis. For example, if you do not know who is running the day to day affairs of the company, then all those persons who are not signatory to the cheque, and who are not the company in itself, will not be liable for any reason whatsoever under the 138 proceedings unless one can show how such a person was aware of the day to day proceedings or was conducting the day to day proceedings of the company. Also, one of the defences available to the accused is if the complainant does not have proof that the notice sent out was in fact received by the accused, the latter can always contend that one of the conditions for a cheque bounce case has not been met so therefore he may ask for him being acquitted in such cases.

If the essential ingredients are satisfied, it is always better to settle if you are the accused, by paying the principal amount due and payable, to close the case.

Impersonating an Advocate can land you in Jail!

noreply@blogger.com (Anshul Kumar Pandey) — Mon, 11 Oct 2021 15:15:00 +0000

To put on a black gown, tie that band around your neck and breeze through the corridors of justice while litigants and court officials look at you with a mixture of envy and awe is the dream of many. However, it takes at least 5 years of full time study to don the robes of an Advocate. Some people, on the other hand, do not want to put in all the effort and want a short cut to the bar. They take the phrase “Where there is a will, there is a way [or a lawyer *wink wink*] ” quite literally. They break the law to appear in front of a judge and act as if they are assisting in the administration of justice! But, every fairy tale must come to an end and this joyride too ends sooner or later. It later dawns upon such daredevils that the thrill they sought has its severe consequences.

The menace of fake lawyers

The problem of Bunty and Babli in the legal profession is not new. Cheaters, swindlers, thugs and charlatans have always been attracted by the lure of the black gown to cloak their nefarious deeds. In 2015 itself, Bar council of India Chairman Manan Kumar Mishra said that 30% of lawyers in India are fake and they are the ones who organize strikes and boycotts. In 2017, former Chief Justice of India and the then Governor of Kerala, Justice P Sathasivam flagged the reports about fake lawyers as ‘worrisome’. He said:

“As a person who was fortunate to lead the Indian Judiciary, I am worried about the reports about unqualified lawyers in our State and the nation. We have been hearing reports quoting official sources that thousands of lawyers in Kerala are yet to confirm their educational credentials. Even an allegation in this regard is very depressing and it is high time Lawyers' Associations came forward to clear the misunderstanding caused in society.”

There have been a string of cases since this issue was flagged by Mr. Mishra and Justice Sathasivam where persons impersonating advocates have been nabbed from court premises itself, sometimes even while attempting to argue before the judge!

For instance, a court in Punjab convicteda man who obtained his licence to practise law 21 years ago in 1996, for fraudulently obtaining the law degree. Similarly, High drama ensued in the Allahabad High Court when during the hearing of an appeal filed before a Bench comprising Justice Vipin Sinha and Justice Ifaqat Ali Khan, ‘Advocate’ Jitendra Kumar Singh stood up to argue before the court only to be challenged by another counsel who soon stood up claiming that he was the real Advocate Jitendra Kumar Singh. Likewise, lawyers at the High Court of Punjab and Haryana were in for a shock when a woman, whom they used to see loitering in the corridors of the High Court, suddenly turned up one day to argue a case before a High Court judge! She was confronted, her cover was blown and she was remanded to police custody and was later granted bail by a District Court in the city.

To add to this (not so) illustrious list, there are some who are not content by befooling only the judges. They want to pull one up over the ‘Learned’ Advocates too. Sessy Xavier, a popular personality in the Aleppey Bar of Kerala, stood up for the District Bar Elections for the post of Member (Library) and won handsomely. By all accounts, she was set for an illustrious career at the bar. The judges too appointed her as Advocate Commissioner in some cases. However, the party came to an end when the Bar Association received an anonymous letter alleging that Ms. Xavier had no LL.B. degree and enrollment certificate. Her enrollment number turned out to be that of another Advocate who was practicing in Thiruvananthpuram. Needless to say, Ms. Xavier absconded.

Although, we can all have a good laugh at these foolish attempts to make a fortune by impersonating a lawyer, SC lawyer Yashraj Singh Deora found to his shock and horror that his bank balance has emptied overnight through cheques forged in his name by one Sunil Kumar Rathi. The accused withdrew large sums of money from the bank after forging the cheques and duplicating the SIM card of Mr. Deora.

Fighting the Fakers

The provisions of law usually slapped against such accused are Sections 415, 416, 417, 419 and 420 from the Indian Penal code which are as follows:

415. Cheating.— Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.

416. Cheating by personation.—A person is said to “cheat by personation” if he cheats by pretending to be some other person, or by knowingly substituting one person for or another, or representing that he or any other person is a person other than he or such other person really is.

Explanation.—The offence is committed whether the individual personated is a real or imaginary person.

417. Punishment for cheating.—Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

419. Punishment for cheating by personation.—Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

So, depending on the context of impersonation, if you are convicted for cheating by impersonating an Advocate, you can land up in jail for anywhere between one and three years and can also be slapped with a fine.

One of the ways in which the Bar Council of India has sought to fight this menace of fake lawyers is through verification of Advocate Rolls in each state. In January 2015, it notified the BCI Certificate and Place of Practice (Verification) Rules, 2015. In its Statement of Objects and Reasons, the Rules observed:

“The Bar Council of India has also come to know that a number of fake (farzi) persons (without any Law Degree or enrolment certificate) are indulged in Legal practice and are cheating the Litigants, courts and other stake-holders; and neither the Bar Associations nor the concerned State Bar Councils have any control over such fake persons. Shockingly, it has come to the notice of the Council that at some places, the office-bearers of Bar Associations or some vote-seekers knowingly make such people members and voters of their Associations with a motive to get their votes in the elections of Bar Associations or Bar Councils. Similarly, many persons, after getting enrolled as Advocates in any State Bar Council, get involve in Property-Dealings, contract or switch over to some other business, profession or job and have no more concern with the Legal profession. Such “non-practicing Advocates” are sometimes being used by some of the office-bearers/ candidates for elections of Bar Associations or Bar Councils (only for their votes). But in fact, the Council has realized that such practice is degrading the standard of Legal profession, and this mal-practice has to be stopped.”

However, verification of these humongous rolls is a time consuming and laborious task. The elections of State Bar Councils were held up due to the verification drive. It was argued that before verification, legitimate electoral rolls could not be prepared and without them, any voting to elect Bar Council members would carry no credibility. Hence, the validity of these rules was challenged in Ajayinder Sangwan vs. Bar Council of Delhi where the petitioners requested for immediate elections of the State Bar Councils as their term had expired long back whereas the Bar Council of India contended for the need of verification of the candidates to eliminate fake lawyers in order to bring improvements in the Bar and to get deserving practicing advocates for the respective Bar Councils. Vide Order dated 23rd August 2017, the Supreme Court of India directed the Bar Council of India to request a retired Judge of the Supreme Court to control and supervise the verification process and preparation of Electoral Rolls. The elections to the Bar Council of Delhi were held in March 2018 after the supervisory work of this Central Verification Committee was completed.

More recently, the Allahabad High Court sought a response from the Bar Council of Uttar Pradesh as to whether it has formulated a procedure to deal with complaints against fake advocates who are using forged and fictitious degrees to practice. The abovementioned order of the Supreme Court in Ajayinder Sangwan was referenced for the benefit of the Bar Council of UP.

Conclusion

While the menace of fake lawyers and impersonation continue to be battled out in the courts, things recently took a dark turn when armed gangsters entered the Rohini District Court andgunned down a leader of a rival gang before being shot themselves. This shootout not only raised questions on the safety and security of the Courts right in the National Capital of the country, but also highlighted in big bold letters the dangers of impersonation which were restricted to non-violent crimes till now.

Impersonation is a serious crime in itself. Impersonating an Advocate takes the seriousness of the crime up by several notches. The justice administration machinery does not look with mercy at attempts to throw a spanner in its works and to stall its functioning. Shakespeare asked "What's in a name?" One can answer this question by referring to Section 416 of the Indian Penal Code and say "A lot, if the name is suffixed with the title 'Advocate'!"

Top skills to acquire if you want to run your own business someday

noreply@blogger.com (Anshul Kumar Pandey) — Sat, 09 Oct 2021 12:17:00 +0000

The following are the key takeaways from a webinar of the same name by Lawsikho's Ramanuj Mukherjee

Become a knowledge and skill acquisition machine - Anything can help. Even reading a book can help. There is nothing wrong with bookish knowledge. But it is not complete. It is important to understand that it is not complete. It is giving you a perspective, it is giving you information but nothing is final. That is why it is important be a knowledge and skill acquisition machine. There is no end to it. You keep doing it. Steve Jobs learnt Calligraphy in College. This knowledge helped him to come with better fonts while designing Macintosh. So you have to be a knowledge aficionado.

Become a World Class Communicator - APJ Abdul Kalam spoke about how one might not be a great speaker but still be a great communicator. To be a good business leader, you have to develop this skill. You can be a very good storyteller. Analogies can be other great example. Inter-personal skills – oral and writing – in both ways, you are able to communicate through writing as well as speaking.

Blogging and Article writing - One of the things that you need to make your company successful is that you have to attract good people to come and work with you. That first 10 people are very important. And people will come and work with you for no other reason but your vision. What are you trying to build? What are you trying to do? Why is it important? If you don’t succeed what will happen? If you succeed what will happen? All these things need to be articulated to get people excited to work with you.When you are building a business, the first question to ask is why have you chosen this problem to work on? When you are building a business, usually you are solving a problem. If you are not solving any problem, what sort of business are you building? But why this problem? Why should anyone care about this business? Why should anyone care about this particular problem? So when you are able to think about it and articulate it, people will come to you, customers will come to you, your initial supporters will come to you, your initial employees, co-founders or even investors will come to you because they read and they are persuaded that yes, I believe in this cause. Yes, I believe in this company. I believe in this idea. So this is very very critical.

Basic Video Skill – Today’s public speaking is at a very different level. Video communication has become very important. You can impact people through videos. There are very cool softwares which can make a video more attractive and drive a point home. The future is video communication. If you are able to ace this skill, you can build an audience and get your ideas across to the world and it can make a good difference.

Communicate with Actions and not just words

Ditch the vague and cliché – Skip roundabout bullshit. You will not be rewarded in real world for saying vague and cliché things. Lot of people have a tremendous lack of clarity. So you have to make sure that there is no vagueness in what you are saying.

Become world class at Self-Management – If you are managing yourself really well, from there your leadership starts. So you can start talking about managing others, or managing an organization etc. You should become very good at managing your mind, body, health, emotion etc.

Relationships and Networking – Are you good at building new relationships, nurturing them and maintaining them? Are you able to deliver value to people you are networking with? If you are not able to do some of these things it will have a huge impact on your prospects as a founder. It is a mindset you need to develop over a period of time and you get better and better at it.

Learning to build and manage a team. – You need to be able to attract good quality people. And you need to make them perform. Some people will not perform and you need to fire them. Some people will perform and you need to keep them excited, you have to help them to do better and better over a period of time.

Connect – Are you connecting with people who are going to be able to help you? Are they connecting with your ideas and concepts?

Inspire - Are you able to get people to move just beyond thinking and debating and ideating and brainstorming to actually committing to do something?

Set High Standards – People will do something and say this is it. This is only what we can do. Insisting on a higher standard is a very important job of a founder and a leader.

Training People – When you are a small business, you don’t have people who come trained, or you don’t have enough money to hire trained people, in such a case you will have to learn a lot of skills yourself and train people in those skills to produce the results that you want.

Manage – Managing a startup can be equivalent to managing a Nursery or KG class. People are prone to disruption, they want to get paid and do no work, even if they want to do work they want to go in different direction and not follow the policy of the company or not follow a cohesive path. So keeping people together, focusing on the right priorities and keeping them going in the right direction is very challenging.

Support as they grow and evolve – You have to be the support system for a lot of people. As they grow and evolve they will face different challenges and you have to be their friend and guide whom they can come to for guidance and emotional support.

Retain – Better than an MBA you can go to a startup and you can learn a lot. But in reality it is quite difficult. If someone is really good, big companies want to hire him. There are companies which have more money than you and which are more desperate than you even if they are smaller so they are ready to pay them more money. You can never win that race even if you are paying above average salary than the market. People will stay because they feel like a part of a tribe, they feel like they are part of something big. They feel like they are part of making history. They feel like they are part of some important work that they don’t want to go just because some people offer more money. It is much harder for anybody to offer an environment where people can thrive. Where people can feel great, where people can feel that they are doing the best work of their life. Certain people will see that environment and complain that people are working too much and will run away. It is good for non-performers to run away. The people who are high performers would want to stay. You have to create a culture where high performers are sought after and low performers go away.

Developing Leadership – As your startup grows, you would want people who provide leadership rather than just do a job. People who are not just following you but are leaders in their own right.

Integrity and Accountability – First of all, you need to have this, and then you need to promote and cultivate it in the organization. There is no culture of lying, misleading, cutting corners etc. You need to believe in these things and you need to promote these things and it is harder to produce results with these things. You might be tempted as to why don’t I lie. But if you build that culture it will pay off later.

Socio-Political, philosophical and legal perspective – Which is why you need to be a knowledge acquiring machine. Suddenly you are responsible for deciding the direction in which your company is going. If you don’t have an understanding of the socio political system, then you will not know what to do. There will be such situations where you will have to decide which opportunities to go after and which to avoid. What are the risks that your company should avoid? What are the opportunities that are going to open up in the future? How does the future look like and can you take that into account? You need to be someone who understands where the world is headed. What are the forces that are shaping the world. Once you understand those things it will have a huge impact on your business.

In order to develop this perspective, you have to be a reader – For example, is conservatism on the rise in the world? If so, why? Is identity politics on the rise in the world? If so, why? What about its impact on India? How will it impact my business? Laboratory produced meat – is it possible that this is the future of food? What are the most important trends in food? What kind of work will be there for lawyers? What kind of lawyers will be in demand? Issues like the concept of algorithmic collusion in competition law, funding of losses, predatory high pricing, killing competition with massive funding, selling things below cost etc. Will same sex marriage be allowed in India? Once you study what is happening in the world, you might get an idea about what is going to happen in India. Look at rise of concerns around privacy in the world, you will realize what is important to people. What is the priority for the next generation? How do they see the world? It is important for you to understand this if you want business continuity.

Vision – It is something where you are able to imagine a future that touches and inspires other people. This will be informed by a better understanding of the world and if it so, it will be a more powerful vision that is likely to succeed and easier for people to buy in.

Questioning the status quo – People are having problem paying change in the bus. People always take this for granted. But an Entrepreneur looks at this and says can I make a change here. Can I solve this problem? Metro cards – there is a long queue of people trying to recharge their cards. Can there be a solution that we can pay from our phone directly to recharge the card? Normally, people are taught not to question the status quo. However, an entrepreneur is different.

Developing an ability to build – Can you build something? Can you physically build a product? The ability to write a book etc.

Marketing and Outreach – A good marketer is someone who sits in front of the computer and thinks how can I tell the whole world about this product or this service. I have a project, how can I get a lot of other people to come together and participate. How can I influence a lot of other people with this idea? Do you know what kind of content to post on social media to get a lot of attention? Can you make a good newsletter? Do you understand how to run Facebook, LinkedIn, Google ads etc?

Become good at managing money – You need to be able to track the cashflow and prioritise how to spend that money if you want to succeed.

Sexual and Unnatural Offences (Ss 375-377) IPC

noreply@blogger.com (Anshul Kumar Pandey) — Sat, 08 May 2021 12:38:00 +0000

Section 375 - Rape

Before understanding what constitutes the offence of rape, it is important to understand what is understood by Consent.

What is Consent?

Explanation 2 to Section 375 defines consent as

- unequivocal

- voluntary

- agreement

when a woman, by:

- words

- gestures or

- any form of verbal or non-verbal communication

communicates willingness to participate in the specific sexual act.

PROVISO - A woman cannot be regarded as consenting to the sexual activity merely because she does not physically resist to the act of penetration.

Ingredients of Section 375

This Section can be understood with the help of the following diagrams:

Important Case Law

Mohd. Zuber Noor Mohammed Changwadia v State of Gujarat [1999 Cr LJ 3419 (Guj)] - Where a prosecutrix is a minor girl suffering from pain due to ruptured hymen and bleeding vagina depicts same, minor contradictions in her statements are not of much value. Also, absence of any injury on male organ of accused is no valid ground for innocence of accused, conviction under Section 375 IPC proper.

Prithi Chand v State of Himachal Pradesh [AIR 1989 SC 702] - Mere absence of spermatozoa cannot cast doubt on the correctness of the prosecution case.

Deepak Gulati v. State of Haryana [AIR 2013 SC 2071] - Intercourse under promise to marry constitutes rape only if from initial stage accused had no intention to keep promise. An accused can be convicted for rape only if the court reaches the conclusion that the intention of the accused was mala fide and that he had clandestine (hidden) motives.

Section 376 - Punishment for Rape -

Ingredients

This section can be understood with the help of the following diagram:

Explanation - For the purposes of this sub-section -

(a) "armed forces" means the naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government, or the State Government;

Ingredients

"Armed Forces" includes the following and their members:

- Naval

- Military and

- Air Forces

- Paramilitary Forces

- Auxiliary forces controlled by Central/State Government

(b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation;

Ingredients

The Oxford English dictionary defines the word "precincts" as "the area around a place or a building, sometimes surrounded by a wall".

Similarly, the word "convalescence" has been defined as: "a period of time when you get well again after an illness or a medical operation; the process of getting well".

Hence, reading this explanation with the above definitions, it comes out that "hospital" means:

(i) area around the hospital AND

(ii) area around any institution for the

- reception and
- treatment of persons

~ during recovery from illness/medical operation or
~ requiring medical attention or rehabilitation

(d) "women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children.

Ingredients

"Women's or children's institution" means any institution established/maintained for the reception/care of women or children. It may be known as:

- orphanage or

- home for neglected women and children or

- widow's home or

- any other name.

Section 376A - Punishment for causing death or resulting in persistent vegetative state of victim - Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished...

[NOTE: This Section was inserted by Criminal Law (Amendment) Act 2013].

Ingredients

1. The offender must commit rape punishable under Section 376(1) or (2).

2. While committing such rape, he should inflict injury on the victim.

3. the injury must be such as to cause the death of the victim or cause her to be in a persistent vegetative state.

4. If the above ingredients are fulfilled, the punishment under this section will be attracted.

Punishment - Minimum twenty years rigorous imprisonment extending up to imprisonment for remainder of natural life or death.

Classification of offence

- Cognizable

- Non-bailable

- Triable by Court of Session

Section 376AB - Punishment for rape on woman under twelve years of age - Whoever, commits rape on a woman under twelve years of age shall be punished...

[NOTE: This Section was inserted by Criminal Law (Amendment) Act 2018].

Ingredients

1. The offender must commit rape.

2. The victim must be under twelve years of age.

3. If the above ingredients are fulfilled, the punishment under this section will be attracted.

Punishment - Minimum twenty years rigorous imprisonment extending up to imprisonment for remainder of natural life and with fine or with death.

Provisos

- Fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim.

- Any fine imposed under this section shall be paid to the victim.

Classification of Offence

- Cognizable

- Non-Bailable

- Triable by Court of Session

- Non-Compoundable

Section 376B - Sexual intercourse by husband upon his wife during separation - Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished...

Ingredients

1. The offender must have sexual intercourse with the victim without her consent.

2. The victim must be his own wife.

3. The victim must be living separately from the offender under a decree of separation or otherwise.

4. If the above ingredients are satisfied, the punishment under this section will be attracted.

Punishment - Minimum two years imprisonment of either description extending up to seven years, and fine.

Classification of offence

- Cognizable (but only on complaint of the victim)

- Bailable

- Triable by Court of Session

Explanation - In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375.

Section 376C - Sexual intercourse by person in authority - Whoever, being-

(a) in a position of authority or in a fiduciary relationship; or

(b) a public servant; or

(c) superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women's or children's institution; or

(d) on the management of a hospital or being on the staff of a hospital, abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished....

Ingredients

1. The offender must hold either one of the following position:

(a) position of authority or fiduciary relationship

(b) public servant

- jail
- remand home
- other place of custody
- women's or children's institution

(d) management or staff of a hospital

2. The offender must abuse such position or fiduciary relationship to induce or seduce the victim.

3. The victim must be:

- under the charge of the offender or
- present in the premises to have sexual intercourse with the offender

4. The offender must commit such sexual intercourse not amounting to the offence of rape.

5. If the above ingredients are satisfied, there will be sexual intercourse by a person in authority.

Punishment - Minimum five years rigorous imprisonment of either description extending up to ten years, and fine.

Classification of offence

- Cognizable

- Non-Bailable

- Triable by Court of Session

- Non-Compoundable

Explanation 1- In this section, "sexual intercourse" shall mean any of the acts mentioned in clauses (a) to (d) of section 375.

Explanation 2- For the purposes of this section, Explanation 1 to section 375 shall also be applicable.

[Explanation 1 to Section 375 provides that "vagina" shall also include labia majora].

Explanation 3- "Superintendent", in relation to a jail, remand home or other place of custody or a women's or children's institution, includes a person holding any other office in such jail, remand home, place or institution by virtue of which such person can exercise any authority or control over its inmates.

Ingredients

"Superintendent" includes a person holding any other office who can exercise authority or control over the inmates of:

- jail

- remand home

- other place of custody or

- women's or children's institution

Explanation 4- The expressions "hospital" and "women's or children's institution" shall respectively have the same meaning as in Explanation to sub-section (2) of section 376.

Section 376D - Gang rape - Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished...

Ingredients

1. There must be more than one offenders.

2. The offenders must constitute a group or act in furtherance of a common intention.

3. In pursuance of the common intention, the offenders must rape the victim.

4. If the above ingredients are fulfilled, there will be gang rape and each one of them shall be deemed to have committed rape.

Punishment - Minimum twenty years rigorous imprisonment extending up to remainder of natural life, and with fine.

Provisos

- Fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim.

- Any fine imposed under this section shall be paid to the victim.

Classification of Offence

- Cognizable

- Non-Bailable

- Triable by Court of Session

Section 376DA - Punishment for gang rape on woman under sixteen years of age - Where a woman under sixteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished...

Ingredients

1. There must be more than one offenders.

2. The offenders must constitute a group or act in furtherance of a common intention.

3. In pursuance of such common intention, the offenders must rape the victim.

4. The victim must be less than sixteen years of age.

5. If the above ingredients are satisfied, the punishment under this section will be attracted.

Punishment - Imprisonment for remainder of natural life and fine.

Provisos

- Fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

- Any fine imposed under this section shall be paid to the victim.

Classification of Offence

- Cognizable

- Non-Bailable

- Triable by Court of Session

Section 376DB - Punishment for gang rape on woman under twelve years of age - Where a woman under twelve years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished...

Ingredients

1. There must be more than one offenders.

2. The offenders must constitute a group or act in furtherance of a common intention.

3. In pursuance of such common intention, the offenders must rape the victim.

4. The victim must be less than twelve years of age.

5. If the above ingredients are satisfied, the punishment under this section will be attracted.

Punishment - Imprisonment for remainder of natural life and fine or death.

Provisos

- Fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:

- Any fine imposed under this section shall be paid to the victim.

Classification of Offence

- Cognizable

- Non-Bailable

- Triable by Court of Session

Section 376E - Punishment for repeat offenders - Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 376AB* or section 376D or section 376DA* or section 376DB* and is subsequently convicted of an offence punishable under any of the said sections shall be punished...

*Added by amendment in 2018.

Ingredients

1. The offender must be previously convicted of any one of the following offences:

- Section 376 = Punishment for Rape
- Section 376A = Punishment for causing death or resulting in persistent vegetative state
- Section 376AB = Punishment for rape on woman under twelve years of age
- Section 376D = Gang Rape
- Section 376DA = Punishment for Gang Rape on woman under sixteen years of age
- Section 376DB = Punishment for Gang Rape on woman under twelve years of age

2. The offender must subsequently be convicted of any one of the above offences.

3. If the above ingredients are satisfied, the offender will be considered as a repeat offender and the punishment under this section will be attracted.

Punishment - Imprisonment for remainder of natural life or death.

Classification of offence

- Cognizable

- Non-bailable

- Triable by Court of Session

Section 377 - Unnatural Offences - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished...

Ingredients

1. The offender must voluntarily have carnal intercourse with any:

- man

- woman or

- animal

2. Such carnal intercourse must be against the order of nature.

3. If the above ingredients are satisfied, there will be an unnatural offence.

Punishment - Imprisonment for life, or Up to ten years imprisonment of either description and fine.

Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Classification of offence

- Cognizable

- Non-bailable

- Triable by Magistrate of First Class

- Non-Compoundable

Important Case Law

Navtej Singh Johar & Ors. v Union of India (AIR 2018 SC)- Supreme Court partially struck down Section 377 of the Indian Penal Code (IPC) and decriminalized gay sex between consenting adults. The Bench consisted of Chief Justice Dipak Misra, Justice A M Khanwilkar, Justice Rohinton Nariman, Justice D Y Chandrachud and Justice Indu Malhotra.

Trafficking, Slavery and Forced Labour (Ss 370-374) IPC

noreply@blogger.com (Anshul Kumar Pandey) — Thu, 06 May 2021 23:09:00 +0000

Section 370 - Trafficking of Person -

[NOTE: This section was inserted by Criminal Law Amendment Act 2013 with effect from 03/02/2013]

Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by—

First - using threats, or

Secondly - using force, or any other form of coercion, or

Thirdly - by abduction, or

Fourthly - by practising fraud, or deception, or

Fifthly - by abuse of power, or

Sixthly - by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received,

commits the offence of trafficking.

Ingredients

Let us understand the above provisions with the help of the following diagram:

Explanation 1 - The expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs.

Ingredients

Exploitation includes:

- Physical exploitation

- Sexual exploitation

- Slavery

- Practices similar to slavery

- Servitude

- Forced removal of organs

Explanation 2 - The consent of the victim is immaterial in determination of the offence of trafficking.

(2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine.

Punishment for trafficking of person - Seven years minimum imprisonment extending up to ten years along with fine.

Classification of offence

- Cognizable

- Non-bailable

- Triable by Court of Session

(3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.

Punishment for trafficking of more than one person - Ten years minimum imprisonment extending up to imprisonment for life along with fine.

Classification of offence

- Cognizable

- Non-bailable

- Triable by Court of Session

(4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.

Punishment for trafficking of a minor - Ten years minimum imprisonment extending up to imprisonment for life along with fine.

Classification of offence

- Cognizable

- Non-bailable

- Triable by Court of Session

(5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine.

Punishment for trafficking of more than one minor - Fourteen years minimum imprisonment extending up to imprisonment for life along with fine

Classification of offence

- Cognizable

- Non-bailable

- Triable by Court of Session

(6) If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.

Punishment for person convicted of offence of trafficking of minor on more than one occasion - Imprisonment for life i.e. remainder of that person's natural life along with fine

Classification of offence

- Cognizable

- Non-bailable

- Triable by Court of Session

(7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine.

Punishment for public servant or a police officer involved in trafficking of minor - Imprisonment for life i.e. remainder of that person's natural life along with fine

Classification of offence

- Cognizable

- Non-bailable

- Triable by a Court of Session

Section 370A - Exploitation of a trafficked person - (1) Whoever, knowingly or having reason to believe that a minor has been trafficked, engages such minor for sexual exploitation in any manner, shall be punished....

Ingredients

1. The offender must have either have knowledge or reason to believe that a minor has been trafficked.

2. Despite having such knowledge or reason to believe, the offender must engage such minor for sexual exploitation in any manner.

3. If the above ingredients are satisfied, there will be exploitation of trafficked child.

Punishment for exploitation of a trafficked child - Five years minimum rigorous imprisonment extending up to seven years along with fine

Classification of offence

- Cognizable

- Non-Bailable

- Triable by Court of Session

(2) Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished...

Ingredients

1. The offender must have either have knowledge or reason to believe that a person has been trafficked.

2. Despite having such knowledge or reason to believe, the offender must engage such person for sexual exploitation in any manner.

3. If the above ingredients are satisfied, there will be exploitation of trafficked person.

Punishment for exploitation of a trafficked person - Minimum imprisonment of 3 years extending up to 5 years along with fine

Classification of offence

- Cognizable

- Non-bailable

- Triable by Court of Session

Section 371 - Habitual Dealing in Slaves - Whoever habitually imports, exports, removes, buys, sells, traffics or deals in slaves, shall be punished...

Ingredients

The offender must habitually

- import

- export

- remove

- buy

- sell

- traffic or

- deal in slaves.

Punishment - Imprisonment for life or maximum ten years imprisonment of either description and fine.

Classification of offence

- Cognizable

- Non-bailable

- Triable by Court of Session

- Non-Compoundable

Section 372 - Selling minor for purposes of prostitution etc. - Whoever sells, lets to hire, or otherwise disposes of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any such purpose, shall be punished...

Ingredients

1. The offender must:

- sell
- let to hire or
- otherwise dispose of

any person under the age of eighteen years.

2. The offender must do so:

(i) with intent that, such person shall, at any age:

- be employed or
- used

for the purpose of:

- prostitution or
- illicit intercourse with any person or
- for any unlawful or immoral purpose

(ii) knowing it to be likely that, such person will, at any age:

- be employed or
- used

for any such purpose.

3. If the above ingredients are fulfilled, there will be selling minor for purposes of prostitution.

Punishment - Up to ten years imprisonment of either description along with fine.

Classification of offence

- Cognizable

- Non-bailable

- Triable by Court of Session

- Non-Compoundable

Explanation I - When a female under the age of eighteen years is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution.

Ingredients of Explanation I

1. The offender must

- sell
- let for hire or
- otherwise dispose of

a female under eighteen years of age

2. The offender must do so in favour of:

- a prostitute or
- any person who keeps or manages a brothel

3. Once the offender has done so, a rebuttable presumption arises against him that he has disposed her of so that she should be prostituted.

Explanation II - For the purposes of this section "illicit intercourse" means sexual intercourse between persons not united by marriage or by any union or tie which, though not amounting to marriage, is recognized by the personal law or custom of the community to which they belong or, where they belong to different communities, as constituting between them a quasi-marital relation.

Ingredients of Explanation II

"Illicit intercourse" means sexual intercourse between persons

(i) not united by marriage or
(ii) any union or tie

(a) in cases where they both belong to the same community - which is recognized by the personal law or custom of the community
(b) in cases where they both belong to different communities - which constitutes between them a quasi-marital relationship

Section 373 - Buying minor for purposes of prostitution etc. - Whoever buys, hires or otherwise obtains possession of any person under the age of eighteen years with intent that such person shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such person will at any age be employed or used for any purpose shall be punished...

Ingredients

1. The offender must:

- buy
- hire or
- otherwise obtain possession of

any person under the age of eighteen years.

2. The offender must do so:

(i) with intent that, such person shall, at any age:

- be employed or
- used

for the purpose of:

- prostitution or
- illicit intercourse with any person or
- for any unlawful or immoral purpose

(ii) knowing it to be likely that, such person will, at any age:

- be employed or
- used

for any such purpose.

3. If the above ingredients are fulfilled, there will be buying minor for the purposes of prostitution.

Punishment - Up to ten years imprisonment of either description along with fine.

Classification of offence

- Cognizable

- Non-bailable

- Triable by Court of Session

- Non-Compoundable

Explanation I - Any prostitute or any person keeping or managing a brothel, who buys, hires or otherwise obtains possession of a female under the age of eighteen years shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution.

Ingredients of Explanation I

1. The offender must be:

- any prostitute or
- any person keeping or managing a brothel

2. The offender must:

- buy
- hire or
- otherwise obtain possession of

a female under the age of eighteen years.

3. If the offender does so, a rebuttable presumption will arise that he has obtained possession of such female with the intent of prostituting her.

Explanation II - "Illicit intercourse" has the same meaning as in section 372.

Section 374 - Unlawful compulsory labour - Whoever unlawfully compels any person to labour against the will of that person shall be punished...

Ingredients

1. The offender must unlawfully compel the victim.

2. Such unlawful compulsion must make the victim labour against his will.

3. If the above two ingredients are satisfied, there will be unlawful compulsory labour.

Punishment - One year imprisonment of either description or fine or both.

Classification of offence

- Cognizable

- Bailable

- Triable by any Magistrate

- Non-Compoundable

Kidnapping and Abduction (Ss 359-369) IPC

noreply@blogger.com (Anshul Kumar Pandey) — Thu, 06 May 2021 15:40:00 +0000

Section 359 - Kidnapping - Kidnapping is of two kinds: kidnapping from India and kidnapping from lawful guardianship.

Section 360 - Kidnapping from India - Whoever conveys any person beyond the limits of India without the consent of that person, or of some person legally authorized to consent on behalf of that person, is said to kidnap that person from India.

Ingredients

1. The offender must convey the victim beyond the limits of India.

2. Such conveyance must be without the consent of the victim or of some person legally authorized to consent on behalf of that person.

3. If the above ingredients are satisfied, there will be kidnapping from India.

Section 361 - Kidnapping from lawful guardianship - Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Ingredients

1. The offender must take or entice any minor or person of unsound mind.

2. Such taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind.

3. Such taking or enticing must be without the consent of such guardian.

4. The minor must be:

(i) if male, under 16 years of age
(ii) if female, under 18 years of age

5. If the above ingredients are satisfied, there will be kidnapping from lawful guardianship.

Explanation - The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Comment

For a person to claim the protection of the phrase "lawful guardian" for his act, he has to prove that he was "lawfully entrusted" with the "care or custody" of such minor or other person. In other words, the necessary constituents of "lawful guardian" are:

(i) Valid entrustment,

(ii) for the purpose of care/custody

Exception - This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

Ingredients of Exception

The exception extends the protection from the wrath of Section 361 to the following persons:

(i) any person who in good faith believes himself to be the father of an illegitimate child

(ii) any person who in good faith believes himself to be entitled to lawful custody of such child

However, if the act in question is committed for an immoral or unlawful purpose, the exception will not apply.

Punishment of Kidnapping from India or from lawful guardianship - Section 363 - Up to seven years imprisonment of either description and fine.

Classification of Offence

- Cognizable

- Bailable

- Triable by Magistrate of the First Class

- Non-Compoundable

Important Case Laws

Inducement not immediate cause - Thakorilal D. Vadgama v State of Gujarat (AIR 1973 SC 2314) - The accused was charged for kidnapping a minor girl below 15 years of age from the lawful guardianship of her father. It was established that the accused had at earlier stage solicited or induced minor girl to leave her father's protection by conveying or indicating an encouraging suggestion, that he would give her shelter. Holding the accused liable for kidnapping under Section 363, the Supreme Court said that the mere circumstances that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him from the offence of kidnapping. The question truly falls for determination on the facts and circumstances of each case.

Lawful guardian - S. Varadrajan v. State of Madras (AIR 1965 SC 942) - Where facts indicate that a girl left her father's protection, knowing and having capacity to know the full import of what she was doing and voluntarily joined the accused, the offence of kidnapping cannot be said to have been made out.

Use of word 'keeping': Meaning of - Prakash v State of Haryana (AIR 2004 SC 227) - The use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control; further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial: it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.

Section 362 - Abduction - Whoever by force compels or by any deceitful means induces, any person to go from any place, is said to abduct that person.

Ingredients

1. The offender must compel or induce the victim.

2. The victim must be compelled by force or induced by deceitful means.

3. As a result of such compelling or force, the victim must go from any place.

4. If the above ingredients are fulfilled, there will be abduction.

Section 363A - Kidnapping or maiming a minor for purposes of begging —

[NOTE: This section was inserted by Act 52 of 1959 with effect from 15/01/1960]

(1) Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in order that such minor may be employed or used for the purpose of begging shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Ingredients of Sub-Section(1)

1. The offender must either kidnap the minor or obtain his custody, not being his lawful guardian.

2. Such kidnapping or obtaining of custody must be for the purpose of employing or using the minor for begging.

3. If the above ingredients are satisfied, there will be kidnapping of minor for the purpose of begging.

Punishment - Up to 10 years imprisonment of either description and fine.

Classification of Offence

- Cognizable

- Non-bailable

- Triable by Magistrate of the First Class

- Non-Compoundable

(2) Whoever maims any minor in order that such minor may be employed or used for the purposes of begging shall be punishable with imprisonment for life, and shall also be liable to fine.

Ingredients of Sub-Section (2)

1. The offender must maim the minor.

2. Such maiming must be with the purpose of employing or using such minor for the purpose of begging.

3. If the above ingredients are fulfilled, there will be maiming of minor for the purpose of begging.

Punishment - Imprisonment for life and fine.

Classification of Offence

- Cognizable

- Non-bailable

- Triable by Court of Session

- Non-Compoundable

(3) Where any person, not being the lawful guardian of a minor, employs or uses such minor for the purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise obtained the custody of that minor in order that the minor might be employed or used for the purposes of begging.

Comment

This sub-section raises a rebuttable presumption against any person who employs or uses a minor, not being his lawful guardian, for the purposes of begging. The presumption raised will be that such a person has kidnapped or obtained the custody of the minor for the very purpose of begging and as a result, the stringent provisions of sub-section (1) or (2) may be attracted.

(4) In this section,—

(a) ‘begging’ means—

(i) soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortune-telling, performing tricks or selling articles or otherwise;

(ii) entering on any private premises for the purpose of soliciting or receiving alms;

(iii) exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal;

(iv) using a minor as an exhibit for the purpose of soliciting or receiving alms;

(b) ‘minor’ means—

(i) in the case of a male, a person under sixteen years of age; and

(ii) in the case of a female, a person under eighteen years of age.

Section 364 - Kidnapping or abducting in order to murder - Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished...

Ingredients

1. The offender must kidnap or abduct the victim.

2. Such kidnapping or abduction of the victim must be for the purpose of either:

(i) murdering him or
(ii) disposing him in such a manner that he is put in danger of being murdered

3. If the above ingredients are satisfied, there will be kidnapping or abducting in order to murder.

Punishment - Imprisonment for life or up to 10 years rigorous imprisonment and fine.

Classification of offence

- Cognizable

- Non-bailable

- Triable by a Court of Session

- Non-Compoundable

Illustrations

(a) A kidnaps Z from India, intending or knowing it to be likely that Z may be sacrificed to an idol. A has committed the offence defined in this section.

(b) A forcibly carries or entices B away from his home in order that B may be murdered. A has committed the offence defined in this section.

Section 364A - Kidnapping for ransom etc. - Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or causes hurt or death to such person in order to compel the Government or [any foreign state or international inter-governmental organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable...

Ingredients

1. The offender must either:

(i) kidnap or abduct the victim or
(ii) keep the victim in detention after such kidnapping or abduction

2. In addition to such kidnapping, abduction or detention, the offender must either:

(i) threaten to cause death or hurt to the victim or
(ii) by his conduct give rise to a reasonable apprehension in the mind of the victim that he may be put to death or hurt

3. Such threats or conduct on the part of the offender must be with a view to compel:

(i) the government or
(ii) any foreign state or
(iii) international inter-governmental organisation or
(iv) any other person

(a) to do or abstain from doing any act or
(b) to pay a ransom

4. If the above ingredients are satisfied, there will be kidnapping for ransom.

Punishment - Death or Imprisonment for Life and Fine

Classification of Offence

- Cognizable

- Non-Bailable

- Triable by Magistrate of First Class

- Non-Compoundable

Section 365 - Kidnapping or abducting with intent secretly and wrongfully to confine person - Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished...

Ingredients

1. The offender must kidnap or abduct the victim.

2. Such kidnapping or abduction must be with intent to cause the victim to be secretly and wrongfully confined.

3. When the above ingredients are fulfilled, there will be kidnapping or abducting with intent secretly and wrongfully to confine person.

Classification of Offence

- Cognizable

- Non-bailable

- Triable by Magistrate of First Class

- Non-Compoundable

Section 366 - Kidnapping, abducting or inducing woman to compel her marriage etc. - Whoever kidnaps or abducts any woman with intent that she may be compelled or knowing it to be likely that she will be compelled, to marry any person against her will or in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine and

whoever, by means of criminal intimidation as defined in this code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.

Ingredients

I have broken the section into two parts for the sake of better understanding.

Part I

1. The offender must kidnap or abduct any woman (the victim).

2. Such kidnapping or abduction must be for the purpose of compelling the victim to marry against her will or for illicit intercourse.

3. In the case of marriage against will of the victim, the offender must kidnap or abduct:

(i) with intent that the victim may be compelled to marry any person against her will
(ii) with knowledge that the victim will be compelled to marry any person against her will

4. In the case of illicit intercourse, the offender must kidnap or abduct:

(i) in order that the victim may be forced or seduced to illicit intercourse
(ii) with knowledge that the victim will be forced or seduced to illicit intercourse

Part II

1. The offender must induce any woman (the victim) in any of the following ways:

(i) criminal intimidation or
(ii) abuse of authority or
(iii) any other method of compulsion

2. The offender, through such inducement, must make the victim to go from any place:

(i) with intent that the victim may be or
(ii) with knowledge that victim will be

forced or seduced to illicit intercourse with another person.

If the ingredients mentioned either in Part I or Part II are fulfilled, there will be kidnapping, abducting or inducing woman to compel her marriage etc.

Punishment - Up to 10 years imprisonment of either description and fine.

Classification of Offence

- Cognizable

- Non-Bailable

- Triable by Court of Session

- Non-Compoundable

Section 366A - Procuration of Minor Girl - Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable...

[NOTE: This Section was inserted by Act 20 of 1923]

Ingredients

The offender must induce by any means any minor girl under 18 years of age:

(i) to go from any place or
(ii) to do any act

(a) with intent that such girl may be, or
(b) knowing that it is likely that she will be

forced or seduced to illicit intercourse with another person.

If the above ingredients are fulfilled, there will be procuration of minor girl.

Punishment - Up to ten years imprisonment and fine.

Classification of offence

- Cognizable

- Non-bailable

- Triable by Court of Session

- Non-Compoundable

Section 366B - Importation of girl from foreign country - Whoever imports into India from any country outside India or from the State of Jammu and Kashmir any girl under the age of twenty-one years with intent that she may be or knowing it to be likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable...

[NOTE: This Section was inserted by Act 20 of 1923]

Ingredients

1. The offender must import into India any girl under the age of 21 years from:

(i) any country outside India or
(ii) from the State of Jammu and Kashmir

2. Such importation must be made by the offender:

(i) with intent that the girl may be or
(ii) with knowledge that she will be

forced or seduced to illicit intercourse with another person.

3. If the above ingredients are satisfied, there will be importation of girl from foreign country.

Punishment - Up to ten years imprisonment and fine.

Classification of offence

- Cognizable

- Non-bailable

- Triable by a Court of Session

- Non-Compoundable

Important Case Law

Mohandas Suryavanshi v State of Madhya Pradesh [1999 Cr LJ 3451 (MP)] - Consent of a minor prosecutrix does not matter if she was taken to separate places for making sexual intercourse away from her lawful guardians, her name as different in FIR does not matter as it was her pet name, under such circumstances accused is guilty of kidnapping and raping minor for days long.

Section 367 - Kidnapping or abducting in order to subject person to grievous hurt, slavery etc. - Whoever kidnaps or abducts any person in order that such person may be subjected or may be so disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to the unnatural lust of any person, or knowing it to be likely that such person will be so subjected or disposed of shall be punished...

Ingredients

1. The offender must kidnap or abduct the victim.

2. Such kidnapping or abduction must be in order that the victim:

(i) may be subjected to or
(ii) may be disposed of in such a manner that he is put in danger of being subjected to or
(iii) with knowledge that the victim will be disposed of or subjected to

(a) grievous hurt or
(b) slavery or
(c) unnatural lust of any person

3. If the above ingredients are fulfilled, there will be kidnapping or abducting in order to subject person to grievous hurt, slavery etc.

Punishment - Up to ten years imprisonment of either description and fine.

Classification of offence

- Cognizable

- Non-bailable

- Triable by Court of Session

- Non-Compoundable

Section 368 - Wrongfully concealing or keeping in confinement, kidnapped or abducted person - Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge or for the same purpose as that with or for which he conceals or detains such person in confinement.

Ingredients

1. The offender must wrongfully conceal or confine a victim of kidnapping or abduction.

2. If he does so, he shall be punished in the same manner as if he had kidnapped or abducted the victim:

(i) with the same intention or
(ii) with the same knowledge or
(iii) for the same purpose

as that with or for which he conceals or confines the victim.

Punishment - Same as punishment for kidnapping or abduction i.e. up to seven years imprisonment of either description and fine.

Classification of offence

- Cognizable

- Non-bailable

- Triable by court by which kidnapping or abduction is triable

- Non-compoundable

Section 369 - Kidnapping or abducting child under ten years with intent to steal from its person - Whoever kidnaps or abducts any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child, shall be punished...

Ingredients

1. The offender must kidnap or abduct the victim.

2. The victim must be a child under ten years of age.

3. The offender must kidnap or abduct the victim with the intention of dishonestly taking any movable property from the person of such child.

4. If the above ingredients are satisfied, there will be kidnapping or abducting of child under ten years of age with intent to steal from its person.

Punishment - Up to seven years imprisonment of either description and fine.

Classification of offence

- Cognizable

- Non-bailable

- Triable by Magistrate of the First Class

- Non-Compoundable

Other forms of Criminal Force and Assault (Ss 355-358) IPC

noreply@blogger.com (Anshul Kumar Pandey) — Wed, 05 May 2021 19:18:00 +0000

Section 355 - Assault or criminal force with intent to dishonour person, otherwise than on grave provocation - Whoever assaults or uses criminal force to any person, intending thereby to dishonour that person, otherwise than on grave and sudden provocation given by that person, shall be punished...

Ingredients

1. The offender must assault or use criminal force on the victim.
2. Such assault or criminal force must be used with the intent to dishonour the victim.
3. Such assault or criminal force must be used otherwise than on grave and sudden provocation given by the victim.

4. If the above ingredients are fulfilled, then it will be assault or criminal force with intent to dishonour person, otherwise than on grave provocation.

Punishment - Up to two years imprisonment of either description or with fine or both.

Classification of offence

- Non-Cognizable

- Bailable

- Traible by any Magistrate

- Compounded by the person assaulted or to whom criminal force is used.

Section 356 - Assault or criminal force in attempt to commit theft of property carried by a person - Whoever assaults or uses criminal force to any person, in attempting to commit theft on any property which that person is then wearing or carrying, shall be punished...

Ingredients

1. The offender must assault or use criminal force to the victim.

2. Such assault or criminal force must be used while attempting to commit theft on property.

3. The victim must be wearing or carrying the property on which the theft is attempted.

4. If the above ingredients are fulfilled, it will be assault or criminal force in attempt to commit theft of property carried by a person.

Punishment - Up to two years imprisonment of either description or fine or both.

Classification of Offence

- Cognizable

- Bailable

- Triable by any Magistrate

- Non-Compoundable

Section 357- Assault or criminal force in attempt wrongfully to confine a person - Whoever assaults or uses criminal force to any person, in attempting wrongfully to confine that person, shall be punished...

Ingredients

1. The offender must assault or use criminal force on the victim.

2. Such assault or criminal force must be used to attempt to wrongfully confine the victim.

3. If the above ingredients are satisfied, there will be assault or criminal force in attempt wrongfully to confine a person.

Punishment - Up to one year imprisonment of either description or up to Rs. 1000/- fine or both.

Classification of offence

- Cognizable

- Bailable

- Triable by any Magistrate

- Compoundable by the person assaulted or to whom the force was used with the permission of the court.

Section 358 - Assault or criminal force on grave provocation - Whoever assaults or uses criminal force to any person on grave and sudden provocation given by that person shall be punished...

Ingredients

1. The offender must assault or use criminal force on the victim.

2. Such assault or criminal force must be used on grave and sudden provocation given by the victim.

3. If the above ingredients are satisfied, there will be assault or criminal force on grave provocation.

Explanation - This section is subject to the same explanation as section 352.

(The Explanation to Section 352 lays down the scenarios where the defence of grave and sudden provocation will not be accepted. These are:

1. If the provocation is sought or voluntarily provoked by the offender as an excuse for the offence
2. If the provocation is given by anything done in obedience to the law.
3. If the provocation is given by a public servant, in the lawful exercise of the powers of such public servant
4. If the provocation is given by anything done in the lawful exercise of the right of private defence.

Finally, the explanation provides that whether the provocation was grave and sudden enough to mitigate the offence is a question of fact).

Punishment - Up to one month simple imprisonment or fine of Rs. 200/- or both.

Classification of the offence

- Non-Cognizable

- Bailable

- Triable by any Magistrate

- Compoundable by the person assaulted or to whom criminal force is used.

Assault or Criminal Force to Woman, Sexual Harassment, Voyeurism and Stalking (Ss 354, 354A-D) IPC

noreply@blogger.com (Anshul Kumar Pandey) — Wed, 05 May 2021 18:17:00 +0000

Section 354 - Assault or criminal force to woman with intent to outrage her modesty - Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished....

Ingredients

1. The offender must assault or use criminal force to any woman.

2. Such assault or criminal force must be used with the intention or knowledge of outraging the modesty of the woman

3. When the above ingredients are satisfied, there will be assault or criminal force to woman with intent to outrage her modesty.

Punishment - Imprisonment of either description for minimum one year, extending up to five years and fine.

Classification of Offence

- Cognizable

- Non-Bailable

- Triable by any Magistrate

Important Case Law - Raju Pandurang Mahale v State of Maharashtra (AIR 2004 SC 1677) - In this case, the Supreme Court has commented upon the meaning of the phrase 'modesty of a woman' as follows:

"What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her saree, coupled with request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word 'modesty' is not defined in I.P.C."

Before proceeding further, it would be pertinent to note that in the backdrop of nationwide outrage after the Nirbhaya Gang Rape case, the following sections i.e. Section 354A to 354D were added to the Indian Penal Code through the Criminal Law (Amendment) Act 2013 (Act No. 13 of 2013) with effect from 3/02/2013.

Section 354A(1) - Sexual Harassment - A man committing any of the following acts -

(i) physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) a demand or request for sexual favours; or

(iii) showing pornography against the will of a woman; or

(iv) making sexually coloured remarks,

shall be guilty of the offence of sexual harassment.

Punishment and Classification of offence

Sexual harassment of the nature of unwelcome physical contact and advances or a demand or request for sexual favours, showing pornography - Up to 3 years rigorous imprisonment or fine or both.

- Cognizable

- Bailable

- Triable by any Magistrate

Sexual harassment of the nature of making sexually coloured remark - Up to one year imprisonment of either description or fine or both.

- Cognizable

- Bailable

- Triable by any Magistrate

Section 354B - Assault or criminal force to woman with intent to disrobe - Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked shall be punished....

Ingredients

1. The offender must:

(i) assault OR
(ii) use criminal force to any woman OR
(iii) abet such act

2. Such assault, criminal force or abetment must be with the intention of disrobing or compelling her to be naked.

3. If the above ingredients are satisfied, there will be assault or criminal force to woman with intent to disrobe.

Punishment - Imprisonment of either description for minimum 3 years extending up to 7 years and fine.

Classification of offence

- Cognizable

- Non-bailable

- Triable by any Magistrate

Section 354C - Voyeurism - Any man who watches or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished...

Ingredients

1. The offender must:

(i) watch or
(ii) capture the image of a woman engaging in a private act or
(iii) disseminate such image.

2. The woman must be performing such private act in circumstances where she would usually have the expectation of not being observed:

(i) either by the perpetrator or
(iii) by any other person at the behest of the perpetrator

Explanation 1 - For the purpose of this section, "private act" includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim's genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public.

Ingredients of Explanation 1

1. "Private Act" includes:

(i) an act of watching,

carried out in a place,

which would reasonably be expected to provide privacy AND

(ii) where the victim's:

- genitals, posterior or breasts are exposed OR
- covered only in underwear OR
- the victim is using a lavatory OR
- the victim is doing a sexual act that is not of a kind ordinarily done in public.

Explanation 2 - Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.

Ingredients of Explanation 2

1. The victim should consent to the capture of the images or any act

2. The victim should not consent to the dissemination of such images or act to third persons.

3. In spite of her refusal of consent, such images or act is disseminated.

4. If the above ingredients are fulfilled, such dissemination shall be considered an offence.

Punishment and Classification of Offence

(i) First Conviction - Imprisonment of either description for minimum one year extending up to three years and fine

- Cognizable

- Bailable

- Triable by any Magistrate

(ii) Second or subsequent conviction - Imprisonment of either description for minimum three years extending up to seven years and fine.

- Cognizable

- Non-Bailable

- Triable by any Magistrate

Section 354D(1) - Stalking - Any man who

(i) follows a woman and contacts or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman or
(ii) monitors the use by a woman of the internet, email or any other form of electronic communication,

commits the offence of stalking.

Ingredients of the Section

Any man who:

(i) follows a woman AND

- contacts or attempts to contact such woman,

- to foster personal interaction

- repeatedly, despite clear indication of disinterest by such woman OR

(ii) monitors the use by a woman of

- the internet

- email

- any other form of electronic communication

commits the offence of stalking.

Proviso - Such conduct shall not amount to stalking if the man who pursued it proves that -

(i) it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the state; or

(ii) it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or

(iii) in the particular circumstances such conduct was reasonable and justified.

Ingredients of Proviso

The proviso to Section 354D provides grounds of defence to a person accused of stalking if he proves that:

(i) it was pursued for the purpose of:

- preventing or detecting crime AND

- the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the state OR

(ii) it was pursued:

- under any law OR

- to comply with any condition or requirement imposed by any person under any law OR

(iii) in the particular circumstances such conduct was reasonable and justified.

Punishment and Classification of Offence

(i) First Conviction - Up to three years imprisonment of either description and fine.

- Cognizable

- Bailable

- Triable by any Magistrate

(ii) Second or subsequent conviction - Up to five years imprisonment of either description and fine.

- Cognizable

- Non-Bailable

- Triable by any Magistrate

Of Criminal Force and Assault (Ss 349-353) IPC

noreply@blogger.com (Anshul Kumar Pandey) — Wed, 05 May 2021 14:55:00 +0000

Section 349 – Force – A person is said to use force to another if he causes motion, change of motion, or cessation of motion to that other, or if he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any part of that other’s body, or with anything which that other is wearing or carrying, or with anything so situated that such contact affects that other’s sense of feeling…

Ingredients

At the most basic level, Force is said to be applied when a person

- Causes motion or

- Change of motion or

- Cessation of motion

This Section comes into operation when such force is applied to

- Any person or

- Any substance

In the manner described below.

A person is said to use force to another if he:

- Causes motion, change of motion or cessation of motion to that other OR

- If he causes to any substance such motion, or change of motion or cessation of motion as brings that substance into contact with:

(i) Any part of that other’s body OR

(ii) Anything which that other is wearing or carrying OR

(iii) Anything so situated that such contact affects that other’s sense of feeling

Proviso – Provided that the person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion or cessation of motion in one of the three ways hereinafter described.

First – By his own bodily power

Secondly – By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further act on his part, or on the part of any other person.

Thirdly – By inducing any animal to move, to change its motion, or to cease to move.

Ingredients of the Proviso

It is not enough that the force should be applied in the manner described in the section to either any person or any substance. The proviso to the section lays down three ways in which such force must be applied so as to bring this section into operation.

1. First, force can be applied by his own bodily power
2. Secondly, it can be applied by disposing any substance in such a manner that,
the motion or change or cessation of motion takes place:
- without any further act on his part OR
- on the part of any other person
3. Thirdly, it can be applied by inducing any animal to:

o move OR
o to change its motion OR
o to cease to move

Section 350 – Criminal Force – Whoever intentionally uses force to any person, without the person’s consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.

Ingredients

1. There must be intentional use of force to any person.
2. Such use of force must be without the other person’s consent.
3. Such use of force must be directed towards:

Actual consequence – in order to the committing of any offence
Intention – Intending to cause
Knowledge – knowing it to be likely that he will cause
- Injury OR
- Fear OR
- Annoyance

4. The injury, fear or annoyance must be caused to the person to whom the force is used.
5. When the above ingredients are fulfilled, then it can be said to be Criminal Force.

Illustrations

(a) Z is sitting in a moored boat on a river. A unfastens the moorings, and thus intentionally causes the boat to drift down the stream. Here A intentionally causes motion to Z, and he does this by disposing substances in such a manner that the motion is produced without any other action on any person's part. A has therefore intentionally used force to Z; and if he has done so without Z's consent, in order to the committing of any offence, or intending or knowing it to be likely that this use of force will cause injury, fear or annoyance to Z, A has used criminal force to Z.

(b) Z is riding in a chariot. A lashes Z's horses, and thereby causes them to quicken their pace. Here A has caused change of motion to Z by inducing the animals to change their motion. A has therefore used force to Z; and if A has done this without Z's consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy Z, A has used criminal force to Z.

(c) Z is riding in a palanquin. A, intending to rob Z, seizes the pole and stops the palanquin. Here A has caused cessation of motion to Z, and he has done this by his own bodily power. A has therefore used force to Z; and as A has acted thus intentionally, without Z's consent, in order to the commission of an offence. A has used criminal force to Z.

(d) A intentionally pushes against Z in the street. Here A has by his own bodily power moved his own person so as to bring it into contact with Z. He has therefore intentionally used force to Z; and if he has done so without Z's consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy Z, he has used criminal force to Z.

(e) A throws a stone, intending or knowing it to be likely that the stone will be thus brought into contact with Z, or with Z's clothes, or with something carried by Z, or that it will strike water and dash up the water against Z's clothes or something carried by Z. Here, if the throwing of the stone produce the effect of causing any substance to come into contact with Z, or Z's clothes, A has used force to Z, and if he did so without Z's consent, intending thereby to injure, frighten or annoy Z, he has used criminal force to Z.

(f) A intentionally pulls up a Woman's veil. Here A intentionally uses force to her, and if he does so without her consent intending or knowing it to be likely that he may thereby injure, frighten or annoy her, he has used criminal force to her.

(g) Z is bathing. A pours into the bath, water, which he knows to be boiling. Here A intentionally by his own bodily power causes such motion in the boiling water as brings that water into contact with Z, or with other water so situated that such contact must affect Z's sense of feeling; A has therefore intentionally used force to Z; and if he has done this without Z's consent intending or knowing it to be likely that he may thereby cause injury, fear or annoyance to Z, A has used criminal force.

(h) A incites a dog to spring upon Z, without Z's consent. Here, if A intends to cause injury, fear or annoyance to Z, he uses criminal force to Z.

Section 351 – Assault - Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.

Ingredients of the Section

1. The offender must make any gesture or preparation.
2. Such gesture or preparation must be with an intention or knowledge that it will cause apprehension in the mind of another person.
3. The person in whose mind the apprehension is caused must be present with the offender.
4. Such apprehension must be that the offender is about to use criminal force to him.
5. If the above ingredients are fulfilled, there will be assault.

Explanation – Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault.

Ingredients of Explanation

1. Mere words do not amount to an assault.
2. However, the words used, combined with the gestures or preparation made, may give them such a meaning as to make them amount to an assault.

Illustrations

(a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to believe that A is about to strike Z, A has committed an assault.

(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he may thereby cause Z to believe that he is about to cause the dog to attack Z. A has committed an assault upon Z.

(c) A takes up a stick, saying to Z, “I will give you a beating”. Here, though the words used by A could in no case amount to an assault, and though the mere gesture, unaccompanied by any other circumstances, might not amount to an assault, the gesture explained by the words may amount to an assault.

Section 352 – Punishment for assault or criminal force otherwise than on grave provocation - Up to three months imprisonment of either description or fine of Rs. 500/- or both.

Explanation – Grave and sudden provocation will not mitigate the punishment for an offence under this section if the provocation is sought or voluntarily provoked by the offender as an excuse for the offence or

If the provocation is given by anything done in obedience to the law, or by a public servant, in the lawful exercise of the powers of such public servant, or

If the provocation is given by anything done in the lawful exercise of the right of private defence.

Whether the provocation was grave and sudden enough to mitigate the offence, is a question of fact.

Ingredients of the Explanation

Section 352 prescribes punishment for assault or criminal force. However, it also provides the defence of grave provocation to the person accused of making assault or using criminal force. The Explanation to this section lays down the scenarios where the defence of grave and sudden provocation will not be accepted. These are:

1. If the provocation is sought or voluntarily provoked by the offender as an excuse for the offence
2. If the provocation is given by anything done in obedience to the law.
3. If the provocation is given by a public servant, in the lawful exercise of the powers of such public servant
4. If the provocation is given by anything done in the lawful exercise of the right of private defence.

Finally, the explanation provides that whether the provocation was grave and sudden enough to mitigate the offence is a question of fact.

Classification of the Offence

- Non Cognizable
- Bailable
- Triable by any Magistrate
- Compoundable by the person assaulted or to whom criminal force is used

Important Case Law – Jadunandan Singh v Emperor (AIR 1941 Patna HC) – Forcibly taking thumb impression of a person on a blank piece of paper amounts to an offence of assault or use of criminal force punishable under this section.

Section 353 – Assault or criminal force to deter public servant from discharge of his duty – Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant…

Ingredients

1. The offender must assault or use criminal force on a public servant.
2. Such assault or criminal force must be made in either of the following scenarios:

o When the person who is assaulted or on whom the criminal force is used is in the execution of his duty as such public servant OR
o The offender intends to prevent or deter him from discharging his duty as such public servant OR
o The offender assaults or uses criminal force on such public servant in consequence of anything done or attempted to be done by him in the lawful discharge of his duty.

3. If the above conditions are fulfilled, there will be assault or criminal force to deter public servant from discharge of his duty.

Punishment – Up to two years imprisonment of either description or fine or both.

Classification of Offence

- Cognizable
- Non-Bailable
- Triable by any Magistrate
- Non-Compoundable

Of Wrongful Restraint and Wrongful Confinement (Ss 339-348) IPC

noreply@blogger.com (Anshul Kumar Pandey) — Tue, 04 May 2021 12:27:00 +0000

Section 339 - Wrongful Restraint - Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.

Ingredients of the Section

1. A person must voluntarily obstruct another person.

2. Such obstruction must be with a view to prevent the other person from proceeding in any direction.

3. The other person must have a right to proceed in the direction which is obstructed.

4. If the above three conditions are fulfilled, there will be wrongful restraint.

Exception - The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.

Ingredients of the Exception

1. There must be an obstruction of a private way.

2. Such obstruction must be over land or water.

3. Such obstruction must be made by a person who in good faith believes himself to have a lawful right to obstruct.

4. If the above three conditions are fulfilled, there will be no wrongful restraint.

Illustration - A obstructs a path along which Z has a right to pass. A not believing in good faith that he has a right to stop the path. Z is thereby prevented from passing. A wrongfully restrains Z.

Punishment for Wrongful Restraint - Section 341 - Up to one month simple imprisonment or fine of Rs. 500/- or both.

Classification of Offence

- Cognizable

- Bailable

- Triable by any Magistrate

- Compoundable by the person restrained or confined

Section 340 - Wrongful Confinement - Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said “wrongfully to confine” that person.

Ingredients

1. There must be wrongful restraint of a person.

2. The wrongful restraint must be such as to prevent that person from proceeding beyond certain circumscribing limits.

3. When the above two conditions are fulfilled, there will be wrongful confinement.

Illustrations

(a) A causes Z to go within a walled space, and locks Z in. A is thus prevented from proceeding in any direction beyond the circumscribing line of wall. A wrongfully confines Z.

(b) A places men with firearms at the outlets of a building and tells Z that they will fire at Z if Z attempts to leave the building. A wrongfully confines Z.

Punishment for Wrongful Confinement - Section 342 - Up to one year imprisonment of either description or fine of Rs. 1000/- or both.

Classification of Offence

- Cognizable

- Bailable

- Triable by any Magistrate

- Compoundable by the person restrained or confined

Types of Wrongful Confinement

Section 343 - Wrongful confinement for 3 or more days

Punishment - Up to two years imprisonment of either description or fine or both.

Classification of Offence

- Cognizable

- Bailable

- Triable by any Magistrate

- Compoundable by the person confined with the permission of the Court

Section 344 - Wrongful confinement for 10 or more days

Punishment - Up to three years imprisonment of either description and fine.

Classification of Offence

- Cognizable

- Bailable

- Triable by any Magistrate

- Compoundable by the person confined with the permission of the Court

Section 345 - Wrongful Confinement of person for whose liberation writ has been issued

Punishment - Up to two years imprisonment of either description in addition to any term of imprisonment to which he may be liable under any other section of Chapter XVI (Of offences affecting the Human Body)

Classification of Offence

- Cognizable

- Bailable

- Triable by Magistrate of the First Class

- Non-Compundable

Section 346 - Wrongful Confinement in Secret - Whoever wrongfully confines any person in such manner as to indicate an intention that the confinement of such person may not be known to any person interested in the person so confined, or to any public servant, or that the place of such confinement may not be known to or discovered by any such person or public servant hereinbefore mentioned...

Ingredients

1. There must be wrongful confinement of a person.

2. Such confinement must be with an intention that it may not be known or the place of such confinement may not be known or discovered.

3. The intention of concealing the knowledge of such confinement or the place of such confinement must be specifically directed against any person interested in the person confined or any public servant.

4. If the above three ingredients are fulfilled, there will be wrongful confinement in secret.

Punishment - Up to two years imprisonment of either description in addition to any other punishment to which he may be liable for such wrongful confinement.

Classification of Offence

- Cognizable

- Bailable

- Triable by Magistrate of the First Class

- Compoundable by the person confined with the permission of the court.

Section 347 - Wrongful Confinement to extort property, or constrain the illegal act - Whoever wrongfully confines any person for the purpose of extorting from the person confined or from any person interested in the person confined, any property or valuable security or of constraining the person confined or any person interested in such person to do anything illegal or to give any information which may facilitate the commission of an offence...

Ingredients

1. There must be wrongful confinement of a person.

2. Such wrongful confinement must be for the purpose of:

- Extorting any property or valuable security OR
- Constraining to do anything illegal OR
- Constraining to give any information which may facilitate the commission of an offence

from the person confined or any person interested in the person confined.

3. If the above conditions are fulfilled, there will be wrongful confinement to extort property, or constrain the illegal act.

Punishment - Up to three years imprisonment of either description and fine.

Classification of Offence

- Cognizable

- Bailable

- Triable by any Magistrate

- Non-Compoundable

Section 348 - Wrongful Confinement to extort confession or compel restoration of property - Whoever wrongfully confines any person for the purpose of extorting from the person confined or any person interested in the person confined any confession or any information which may lead to the detection of any offence or misconduct or for the purpose of constraining the person confined or any person interested in the person confined to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand or to give information which may lead to the restoration of any property or valuable security...

Ingredients

1. There must be wrongful confinement of a person.

2. Such wrongful confinement must be with a purpose of:

- Extorting any confession or any information which may lead to the detection of any offence or misconduct OR
- Constraining to:

restore or to cause the restoration of any property or valuable security
or to satisfy any claim or demand
or to give information which may lead to the restoration of any property or valuable security

from the person confined or any person interested in the person confined.

3. If the above conditions are fulfilled, there will be wrongful confinement to extort confession or compel restoration of property.

Punishment - Up to three years imprisonment of either description and fine.

Classification of Offence

- Cognizable

- Bailable

- Triable by any Magistrate

- Non-Compundable

How Indian Textiles dominated European Markets till 18th Century

noreply@blogger.com (Anshul Kumar Pandey) — Tue, 27 Apr 2021 10:41:00 +0000

While going through the NCERT books on History, I came across an interesting discussion on how Indian textiles dominated European markets till the 18th century. The decline of Indian textile industry was deliberately brought about the British by imposing high import duties on the cloth in Britain while importing vast quantity of British cloth to India. It is a shocking tale of colonial greed, white man's insecurity and aversion to fair competition and complete decimation of a local industry which provided employment to millions.

When the British first arrived on the scene in Surat in the 17th Century, they had to place orders two years in advance because this was the time required for the orders to reach Europe from India through ships. Once these cloths arrived there, they were auctioned and sold at very high rates. The popularity and the quality of the Indian textiles can be gauged from the fact that rich people of England, including the Queen herself wore clothes of Indian fabric.

British Ships at Surat Port

Alarmed by the popularity of the Indian textiles, the wool and silk makers in England demanded protection from their government against the import of Indian cotton textiles. The British Parliament passed the Calico Act (derived from the word 'Calicut') in 1720, banning the import of printed cotton textiles in England. The interesting thing is, these very western nations have the gall to decry 'protectionism' when other governments do what they did to Indian textiles in the 18th century, simply because the balance of trade is in their favor today!

So, what kinds of Indian textiles were famous in Europe? Here are some examples:

1. Chintz: The word 'chintz' comes from the Hindi word 'Chhint' meaning a cloth with small and colourful flowery design. According to Live History India:

"Trade numbers from this period are astounding. The British exported about 84,000 pieces of the different varieties of calico from India. And this would only grow. By 1684 CE the quantity of calicoes exported to England was over a quarter of a million pieces – and this accounted for as much as 73% of the company’s trade.

The calico craze reached its peak in the 1680s when these fabrics were used for clothes. Traders’ wives had abandoned English brocades and Venetians for glazed calico, popularly called as ‘Indian Chintz’. In about a decade, ‘Chintz’ would be everywhere, with trousseau fashioned out of the fabric and it even made its way into pop culture, featuring in anniversaries and events. In fact, the first wedding anniversaries were called a ‘calico wedding’!"

Woman’s jacket. Made in coastal southeast India for the Dutch market; used in Hindeloopen, Friesland. Mordant-dyed and resist-dyed cotton, 18th century, 57.8 cm.

2. Bandanna: The word 'bandanna' comes from the word 'bandhana' and refers to a variety of brightly coloured cloth produced through a method of tying and dying. According to the Smithsonian Mag:

"Long before American cowboys sported bandanas, the European snuff user of the 18th century suffered from an embarrassing problem: Blowing his nose into a white or solid-colored handkerchief left behind dark tobacco stains. He found a stylish solution in India, where textile makers employed a millennium-old tie-dyeing technique called bandhani to create colorful silk and cotton kerchiefs covered in lively patterns. After the Dutch and English East India companies imported these kerchiefs to England, snuff-takers embraced them to make their habit more discreet, and the name was anglicized to “bandana.”

Traditional Indian Bandhani fabric

3. There were a variety of other fabrics which were clubbed together as 'Calico' such as Kasimbazar, Patna, Calcutta, Patna and Charpoore.

According to the British Library:

"This document from 1730 lists the range of textiles - or 'piece goods' - purchased in Bengal by the Company. During the 18th century Indian textiles provided 60% of the total value of the Company's sales in London. While workers were subjected to the devastating effects of extreme climate, famine and war, the landowners, brokers and the Company grew rich on their skills."

"Britain's industrial revolution was actually premised upon the de-industrialisation of India"

In his famous address to the Oxford Union, Dr. Shashi Tharoor briefly touched upon the causes of decline of Indian textiles when he said:

"Britain's rise for 200 years was financed by it's depredations in India. In fact Britain's industrial revolution was actually premised upon the de-industrialisation of India.
The handloom weaver's for example famed across the world whose products were exported around the world, Britain came right in. There were actually these weaver's making fine muslin as light as woven air, it was said, and Britain came right in, smashed their thumbs, broke their looms, imposed tariffs and duties on their cloth and products and started, of course, taking their raw material from India and shipping back manufactured cloth flooding the world's markets with what became the products of the dark and satanic mills of the Victorian England
That meant that the weavers in India became beggars and India went from being a world famous exporter of finished cloth into an importer, went from having 27 per cent of the world trade to less than 2 per cent."

The NCERTs sum up the decline of textile industry in India in the following words:

The development of cotton industries in Britain affected textile producers in India in several ways. First: Indian textiles now had to compete with British textiles in the European and American markets. Second: exporting textiles to England also became increasingly difficult since very high duties were imposed on Indian textiles imported into Britain.
By the beginning of the nineteenth century, Englishmade cotton textiles successfully ousted Indian goods from their traditional markets in Africa, America and Europe. Thousands of weavers in India were now thrown out of employment. Bengal weavers were the worst hit. English and European companies stopped buying Indian goods and their agents no longer gave out advances to weavers to secure supplies. Distressed weavers wrote petitions to the government to help them.
But worse was still to come. By the 1830s British cotton cloth flooded Indian markets. In fact, by the 1880s two-thirds of all the cotton clothes worn by Indians were made of cloth produced in Britain. This affected not only specialist weavers but also spinners. Thousands of rural women who made a living by spinning cotton thread were rendered jobless.

Section 35 of Transfer of Property Act 1882: The Doctrine of Election Simplified

noreply@blogger.com (Anshul Kumar Pandey) — Sun, 18 Apr 2021 16:42:00 +0000

Frederick William Maitland, the father of English Legal History, has given the classical definition of Doctrine of Election as follows:

"He who accepts a benefit under a deed or will or other instrument must:
(a) adopt the whole content of the instrument
(b) conform to all its provisions
(c) renounce all rights that are inconsistent with it"

The Doctrine of Election has been laid down in Section 35 of the Transfer of Property Act 1882.

Key Ingredients of Section 35

A person should profess to transfer property not his own.
In lieu of this transfer, he confers certain benefits upon the owner of the property and
The two things i.e. the transfer of property and conferring of the benefit form part of the same instrument.
In such a scenario, the owner of the property is bound to elect either to take the benefit and transfer his property or to retain his property and to give up the benefit.

4 Rules of Section 35

1. Where the owner retains the property and gives up the benefit, the disappointed transferee has been conferred by law the following rights:

(i) where the transfer is gratuitous i.e. without consideration and the transferor dies or becomes incapable of making a fresh transfer, and
(ii) where the transfer is for consideration, whether he is alive or dead at the time of election

The transferee is entitled to get compensation equal to the amount or value off the property professed to be transferred.

2. Belief of the transferor is immaterial. If the transferor in fact confers a property of someone else, it is immaterial whether he does or does not believe such property to his own.

3. A person taking no benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect.

4. A person who in his one capacity takes a benefit under the transaction may in another capacity dissent therefrom.

Illustration

The farm of Sultanpur is the property of C and worth Rs. 800. A, by an instrument of gift professes to transfer it to B, giving by the same instrument Rs. 1,000/- to C. C elects to retain the farm. He forfeits the gift of Rs. 1,000/-.

In the same case, A dies before the election. His representative must, out of the Rs. 1,000/- pay Rs. 800/- to B.

Principles emerging out of Section 35

1. You cannot approbate and reprobate at the same time (Allegans contraria non-est audiendus).

2. Equity

(i) In the context of the election, the disappointed transferee will have to be taken due care of.
(ii) The owner to whom the benefit has been conferred by the transferor, should not approbate and reprobate at the same time.

Exception to the 4 Rules

Where a particular benefit is expressed to be conferred on the owner of the property which the tranferor professes to transfer, and
such benefit is expressed to be in lieu of that property and
if such owner claims the property,

he must relinquish the particular benefit, but he is not bound to relinquish any other benefit conferred upon him by the same transaction.

For example, Mr. B is the owner of the property worth Rs. 5 crore in Vasant Kunj, Delhi. Mr. A professes to transfer the property to Mr. C and in lieu of the property, confers a benefit of Rs. 6 crore on Mr. B. He also transfers 500 shares of Tata Consultancy Services worth Rs. 1,00,000/- to Mr. B by the same transaction. These 500 shares are not in lieu of the property. These shares are ancillary measures to ensure that the owner concerned accepts the benefit in lieu of the property. Mr. B is not bound to relinquish them.

What amounts to an election?

Implied Election - Election is implied when the owner of the property:

(a) being aware of his duty to elect;

(b) having full knowledge of the circumstances,

accepts the benefit. Such election would mean that he has chosen in favor of the transaction.

Presumption of Election - In the following circumstances, there is presumption of election:

(i) where the owner has enjoyed the benefit for two years without doing any act of refusal or dissent of the transaction; it is presumed that he has waived from enquiry.

(ii) where the owner of the property exhausts or consumes the benefit which renders it impossible to place the parties in the same position as before.

Illustration

A transfers to B an estate owned by C and as part of the same transaction gives to C a coal mine. C does not elect in express words, but takes possession of the coal mine and exhausts it. C is resumed to have elected to take benefit and thereby transfer his property to B.

Requisition to Elect - There is a special procedure for expediting election. After the expiry of one year, if the owner of the property does not elect i.e. neither confirms nor dissents from the transfer, the transferee may require him to make such election. And, if he does not elect it within a reasonable time after such requisition, he is deemed to have elected in favour of the transfer.

Suspension of Election - Where, at the time of transfer, the elector (owner of the property) is legally disabled, the election is postponed until such disability ceases or until the election is made on his behalf by a competent authority such as his guardian. Legal disability may be minority or lunacy of the elector. Then, his duty to elect is suspended during his minority or lunacy unless the election is made by his legal guardian.

Conclusion

In Cooper v. Cooper (1874) Lord Hather explained the principle underlying the doctrine of election as follows:

1. A person who takes benefit under a will or instrument has an obligation to give full effect to the instrument.

2. If it is found that the instrument deals with property which was beyond the power of donor to dispose, but which can be given effect to by the concurrence of the owner of the property, who accepts the benefit under the instrument, the law will impose the obligation on such owner to give full effect to the instrument.

How does a Cryptocurrency transaction work?

noreply@blogger.com (Anshul Kumar Pandey) — Mon, 29 Mar 2021 11:23:00 +0000

DISCLAIMER: This is not a written-from-the-scratch know-it-all original article. I have collated this information from different sources on the internet in one place for my own reference. So don't cry "plagiarism" because this is an up-front admission.

A transaction in the cryptocurrency space involves the transfer of certain units of the currency from one "address" on the network to another (an address is an identifier just like an account number in a bank record).

This requires a "Wallet".

A wallet is typically a software such as an app on a phone that allows the users to manage its address, "public and private keys".

Private and public keys are strings of letters and numbers used to protect messages cryptographically. An address is the transformed shorter function of the public key.

While the account address is public, only a private key can 'unlock' the address to make the transaction.

A public key coupled with a private key helps to keep a user's holdings secure in the digital ecosystem. As the term "public" suggests, a public key is a unique personal address that is shared in the blockchain network and everyone can see it, while a private key works as a password that you must keep just to yourself.

It is impossible to regenerate the private key from a public key or address, so if an owner loses their private key, any bitcoin or altcoins located at this public address will be inaccessible. However, if the owner loses the public key, it is possible to recreate it with private key.

A bitcoin public key is made up of an extremely long string of numbers, so it is compressed and shortened to form the public address - which is like a bank account number. When two people enter into an agreement in which one sends the other bitcoins or other cryptocurrencies, they reveal their public addresses. The public address is a hashed version of the public key and users can make as many public addresses as they want in order to receive bitcoins.

"Hashed Version"? What Does this Mean?

In simple terms, hashing means taking an input string of any length and giving out an output of a fixed length. In the context of cryptocurrencies like bitcoin, the transactions are taken as input and run through a standard hashing algorithm (SHA) which gives an output of fixed length.

For example, in case of SHA-256, no matter how big or small your input is, the output will always have a fixed 256 bits length. This becomes critical when you are dealing with a huge amount of data and transactions. So basically, instead of remembering the input data which could be huge, you can just remember the hash and keep track.

Double Spending Flaw

Double Spending is a potential flaw in a digital cash scheme in which the same digital token can be spent more than once. Unlike physical cash, a digital token consists of a digital file that can be duplicated or falsified. Without the presence of a third party facilitator, a currency system based on a decentralized ledger is susceptible to aforementioned double-spending attacks.

This brings us to the Byzantine Generals Problem.

Byzantine Generals Problem

This problem was proposed in 1982 by researchers from the SRI International Research Institute.

It goes as follows: there are a number of Byzantine generals besieging a city. The can only communicate via sending messengers to each other. The generals must agree on a common plan of action: whether to attack the city or retreat. However, some of the generals are traitorous and actively working against the forming of a consensus; their number and identities are unknown.

The question posed by the problem is what decision-making algorithm the generals should use to devise a common plan - regardless of the traitors' interference - and whether such an algorithm exists at all.

This problem is highly relevant for cryptocurrencies as they are, in essence, distributed computer systems: they are composed of transaction processing nodes that are

a) operated by independent people or organizations that compete to process transactions

b) are seperated geographically

c) are independent of each other and any central authority

d) can only communicate remotely.

They are the "generals" that need to reach a consensus about which transactions have taken place and when.

The Nakamoto Consensus

The core innovation that Bitcoin brought in this space was through its consensus mechanism, known as Nakamoto Consensus.

Created by Satoshi Nakamoto in 2008, the Nakamoto consensus answers the Byzantine Generals' Problem and says that it is indeed possible to form a consensus in a computer network of independent, distributed nodes.

It is a set of rules that verifies the authenticity of a blockchain network, using a combination of the proof of work consensus algorithm on a Byzantine Fault Tolerance (BFT) peer to peer network.

Now what is a blockchain network, proof of work consensus algorithm and Byzantine Fault Tolerance? Let us take them up one by one.

Blockchain Network

Since the decentralized ledger is composed of blocks of cryptocurrency transactions, it is essential for the network to identify the validity of these transactions, and thus the validity of existing chain of transactions in the absence of a trusted third party.

In order to permanently publish transactions as valid on the bitcoin ledger, the transactions need to be verified together as a group of transactions known as blocks. Once the transactions are verified, they are added on the existing chain of transaction blocks, or Blockchain.

Proof of Work

However, a computationally challenging (and now, resource intensive) cryptographic puzzle needs to be solved to validate the transactions. The puzzle is designed in such a way that the solution of the puzzle should partially have the same characters as the hashed output of transactions. This points to the validity of the transaction in the system while maintaining the psuedonymity of the details. The puzzle is randomized in nature, in order to spread evenly the possibility of finding the solution.

This entire concept is called proof of work, and is the basis of enhancement of multiple blockchains across different cryptocurrencies. If a block is found to have invalid transactions, it is rejected by the participants. These participants, striving to find a solution to the puzzle, are known as Miners, and get a transaction fee and a unit of the cryptocurrency, that they are able to generate after solving the puzzle. The mining computation process is a little bit like a lottery: it's not possible to tell who will find the solution, meaning that miners have to be willing to honestly invest time and money in their participation to validate the next block.

This creates an environment where the honest nodes survive and malicious nodes are discouraged. It also prevents the possibility of double spending, since the time-stamped blocks on the blockchain makes it immutable - the longest chain is the valid chain, since it is supported by the majority of the miners' computing power.

Byzantine Fault Tolerance (BFT)

It refers to the property of a distributed computer system that allows it to overcome the Byzantine Generals Problem and consistently form consensus regardless of the fact that some nodes disagree with the rest, either accidently or on purpose. This can be achieved via technical solutions like Bitcoin's Proof of Work algorithm (mentioned above) but only if more than two-thirds of nodes remain loyal to the system.

Limitations of BFT

The Byzantine Fault tolerance can be called a precursor to the Nakamoto Consensus, and it had its limitations. for one, in just a BFT system, the voting system for consensus requires a rotating election of leaders. If a leader acted maliciously, as leaders are known to do, then they could be removed from the network by a vote from the other nodes. In the case of Bitcoin (and for the idea of a digital currency in general) this individual removal of leaders through a voting process would pose a huge challenge when it came to scaling.

Conclusion

Satoshi Nakamoto's addition to using BFT on a P2P network was to add the idea of a proof of work consensus mechanism, where nodes had to mine to create a fully decentralized network. Another aspect of Nakamoto Consensus comes from him putting a hard cap on the amount of Bitcoin - there will only ever be a total of 21 million of the cryptocurrency in circulation. This creates artificial scarcity, which again adds to the incentives for miners to participate in the network.

The “Tu Janta Nahin Mera Baap Kaun Hai” Syndrome

noreply@blogger.com (Anshul Kumar Pandey) — Sun, 20 Sep 2020 18:13:00 +0000

First Published on Youth Ki Awaaz on January 12, 2012

An epidemic has hit the town and has hit it hard. This epidemic is reported to have affected mainly the adolescents and adults of not more than the age of 30. So widespread is this infectious illness that its repercussions and side effects are felt by all the ordinary men and women who ply their way to their homes, offices and other places through road, either by walking or by driving. The cause of concern is made even greater by the anomaly that unlike other epidemics, which start from poor and filthy slums housing the penurious and the destitute and thus giving the political class some ammunition for their next electoral campaign, this ailment has erupted from the households of the rich and the wealthy, especially those occupying public offices having considerable power and clout. Thus, for the first time in independent India’s history, the common man is forced to sympathize at the plight of the elite who have contracted such a disease whose cure is not only rare, but also very costly. So much so, that only by relinquishing all power and wealth can this sickness be sufficiently brought under control – the traces of which, however, would still remain.

But unlike all the other epidemics, this one takes far lesser number of lives. So much so, that if thee death toll of various epidemics were to be compared, this one would turn out to be the fingernail of the little finger of the shortest man on earth! Its death toll is almost negligible as compared to all the other major epidemics.

Still, it cannot be neglected. So widespread is its impact that almost all the elite class is desperately trying to find its cure by trying all the remedies possible – medicinal, spiritual, other-worldly and what not. Hence, this plague has achieved what all the other epidemics together could not – that to bring the elite down to their knees, with their arms flailing, tongues rolling and eyes widespread in agony, desperately seeking a remedy. These stellar accomplishments have been made possible because the epidemic is not biological, but sociological in nature. For our convenience, let us name it the ‘tu-janta-nahi-mera-baap-kaun-hai’ syndrome.

As an ardent viewer of one of the top entertainment channels of the country, India TV, I was alarmed when I saw a news item that had somehow slipped through the prying gaze of its editors and had made its way to the screen for full 10 stunning seconds. However, it was not the unintended gaffe of the editors who let a genuine news item play on their channel for some time, but the content of that news that alarmed me. It reported an incident in Delhi’s Sarojini Nagar area where a constable had brushed his motorcycle against the Santro of a passerby, following which the driver came out of his car with a hammer and attacked the constable with it thus fracturing his left leg and right arm in the process. He also whipped out a pistol and shot a man who tried to intervene in his cheek.

Surely it was a trivial incident and could have been forgiven following a genuine apology. Following this I pulled out the statistics of road rage cases in Delhi and was alarmed to find out that around 1200 people had been killed and 3300 injured in road rage cases in the national capital in 2010 alone. The figure is only expected to rise for this year.

I myself recalled a recent event when I had the opportunity to see an altercation between two people on the road following a trivial accident. One of the most commonly repeated refrain in their figure of speech which also involved many phrases which cannot be produced here for the want of public decency, was ‘tu janta nahi mera baap kaun hai?’

Such arrogance of power and privilege! I consulted some of my otherwise intelligent friends and they concurred that their ears too had been subjected to this figure of speech by someone or the other during the time which they spent on road. This confirmed my suspicions that this was a rampant sociological epidemic. While I cannot of course prescribe a cure for such rampant disease, I can obviously try to dissect the phenomenon and point out certain reasons for the spread of this disease.

The first reason, I think, is the rampant prevalence of nepotism in our country. A policy that is supported at the very top echelons of the political, economic and social class, it is not surprising then, that this has resulted in the sprouting up of seeds of arrogance in the main beneficiaries of these nepotist policies. Bereft of any worthwhile qualification or achievements, the only cannon in their otherwise empty armory remains ‘tu janta nahi mera baap kaun hai?’

The second reason is the conviction to thwart any significant interest by the use of money, power or clout. The nepotism fueled arrogance is given a further push by this conviction, which has proved to be true in recent times, that anybody having money, power or clout can use that inappropriately to influence other instruments of the state so as to thwart any interest of someone who dares to invite their wrath.

The third and the last reason is the preference of matter over mind, of wealth over education, of power over post. The son of a petty politician can threaten an executive of a multinational with this refrain and can expect not only to get away, but also to heap rich rewards from it. This obviously shows the low levels of education and high levels of nepotism that we have scaled and the direction in which the country is headed.

So, the next time you hear a man who asks you ‘tu janta nahi mera baap kaun hai?’ do not entertain him for long and forgive him for being mentally ill.

In the Countryside

noreply@blogger.com (Anshul Kumar Pandey) — Thu, 16 Jul 2020 06:22:00 +0000

In the summer vacations during my first year of college, I made a memorable trip to the countryside and recorded some of my thoughts in a journal I was maintaining then. I recently stumbled upon that journal once again, so I am sharing a young boy's experience of gracious hospitality that he experienced.

I always write my own posts. I do not copy content. That's why it requires a lot of ideas. A lot of thinking. But today, it was hard to come up with ideas. So, I decided to take a stroll outside. Just to get some fresh air and to open up my mind.

So, I started from my house and had barely walked some distance when I happen to meet my gardener. His name is Kailash - the name of the sacred mountain. He is good natured. He invites me to his home which is a few kilometers away down the countryside. With nothing else to do, I accept his offer.
We start our march to the countryside. Leaving the smooth township roads we come upon the uneven and dusty path of the village.

Its a wonderful contrast. To leave the big buildings, honky vehicles and bustling crowd of the town and to come upon the peace and quiet of the rural side was appeasing to say the least. Soon the stench of soil mixed with that of cow dung fills my nose and my brain goes "welcome to the real India!" I skip a step many a times. Several times my ankle twists and turns unaware of the rocky path which my legs are treading upon. My knees buckle but somehow my spirit and Kailash's company has me walking. His words keep me busy. We cross the fields, an abandoned farmhouse, railway tracks, a canal and some ditches.

After walking a little over two miles we reach his home. His home is a semi-pukka building with the walls of bricks and the roof of tin enforced by tarpaulin. It has electricity bulbs and connection. But electricity graces his house only after 8 in the evening. His wife welcomes us. He has two little children. I ask them their names. "Arvind" says the bigger one. "Vishal" pops the second one. Both have two or three milk teeth missing.
He has a cow, a buffalo and calf. The cow and the buffalo are content, chewing their meal. The calf agitates. He doesn't like to be chained. His neck-ring chimes constantly.

Kailash springs up a charpayee for me to sit on. I rest myself without complaining. My legs are aching and my ankle is sore. Soon some neighbors gather to welcome me. Simple people are these rural folks. They welcome even a stranger with open arms. I feel privileged. Somewhat like asarpanch or the village head addressing a small crowd. I greet them all. Ask a few of them about life. "Sab Badhiya hai aapki krupa se" (Everything is fine with your grace).
"Bas ab bacche kuch padh likhkar ho jayen to mehnat safal ho jayegi..." ( Now if only the children study and become something in their life, then my hardwork will be rewarded.) Kailash says.

In no time I am served with a delicious meal. I wonder how fast his wife can cook. Or has the time passed so fast.....

The food is hot and spicy. It burns my throat. I soon have a running nose. But I don't complain. Thank god there is no electricity or he would have been embarrassed. I wipe away my tears and nose with the help of the corner of my sleeve. I feel like Rahul Gandhi eating a meal in the house of a villager. Except the fact that there is no media around here to take my photo or report it in the newspapers - and I am no Gandhi.

We are done eating. I drink some water and wipe my face. The water was sweet, as were my hosts. I stand up to leave. I fold my hands and take their blessings. I came humbled, I part humbled.

I am indebted to Kailash and I must repay this debt soon. Again after a little over two mile walk, he leaves me at the town's gates and returns home. I watch his silhouette disappear in darkness. I come home.

My mother wanted to wash away the dirt off my shoes. I refuse her to do so.

"Its the dust of my country. It will fade away."

Memories of Witnessing a Heated Exchange in the Hon'ble [One Particular] High Court

noreply@blogger.com (Anshul Kumar Pandey) — Mon, 29 Jun 2020 13:05:00 +0000

Shri Protik Prokash Banerjee, Additional Judge, Hon'ble High Court of Judicature at Calcutta, passed away on 03/07/2020, less than a week after this post was first published. He is the 'Counsel' mentioned herein.

Upon reading this blog post he commented on Facebook "Anshul! Shades of a man I know, making a submission he was hauled over coals for having made! Besides, the Judge in question is not merely a Chief Justice designate, but he is brilliantly adorning that chair."

This post is now a fond reminiscience of his memory.

As an Advocate, the best thing that you hope for is an understanding and encouraging judge, who listens to your point patiently and gives a reasonable explanation even if he rejects your argument. The worst thing you can get is a hostile bench bent upon cutting short your sentences and dismissing your plea. However, in between these two extremes, are exchanges which begin reasonably and then, due to one off the cuff remark or another, descend into a hostile exchange. It is at this point that the Advocate has to display his tact, his nerves of steel and his ability to think on his feet so as to salvage the situation and prevent an adverse order being passed against his client. Most importantly, the Advocate must not get intimidated by the bench.

I had the good fortune of witnessing such an exchange first hand. I immediately wrote down the transcript of the exchange upon exiting the court realizing it to be of immense value for my growth as an Advocate. I am sharing it with you, dear reader, in the hope that you too will learn something from it.

ITEM No. 1 - 18th November - Court Room No. 15

In the Court of Hon'ble Justice [Distinguished Personality]

Dramatis Personae

Counsel

Mr. XYZ

Mr. ABC

All three of them Advocates.

Bench = One very prominent Justice of the concerned HC who is now the Chief Justice designate of another very prestigious HC.

Counsel begins to speak.

"Your Lordship will please refer to Section 24(4) and 24(6)"

"24(4).... "

".. and 24(6) your lordship"

"Yes"

*Reads Section 24(4) and 24(6)*

"Yes"

"Your Lordship will see that the word used is 'consultation', which is of quite controversial nature with regards to its interpretation... "

"Show me the document where it says the District Judge was consulted... "

"Your Lordship will refer to Section... "

"No, you show me the document... "

*hands over the document to the Bench*

"Your Lordship will see the date and please refer to Para 6"

*Bench reads Paragraph No. 6*

"Where does it say consultation?"

"May I refer your lordship to the Proviso of the said section?"

"Yes"

*Reads Proviso*

"Does service mean the same thing as consultation?"

"Your lordship will allow me... "

"The meaning is not the same... "

"But this is the Section my learned friends are relying upon in their memo!"

"Which memo?"

"The original one"

*Motions for copy of the memo*

*Copy of the original memo handed to the Bench*

"Your Lordship will see the appointments to the post of Public Prosecutor in 2011 have been made without consultation with the District Judge... "

"Counsel, the state has not followed the proper procedure for the appointment of the public prosecutors. I am not going to invalidate those appointments in this proceeding."

"Does your lordship accept that the appointments were illegal?"

"Yes, they were illegal."

*Bench to the opposite party*

"Mr. XYZ, any intervention at this point?"

"Your Lordship, we would like to submit that the appointments made since 2011 were made according to the procedure."

"I am not going into that. What has been done is done. I cannot invalidate appointments made in 2011."

*Counsel intervenes*

"Your Lordship, if I may refer you to the latest memo"

"Yes"

"Your Lordship will see that the original memo has 9 names"

"... Yes"

"And the latest memo has a lot more names"

"... Yes"

"The opposite party is seeking a writ of mandamus, without specifying whether these appointments were made in consultation with the District Judge."

"Read the memo."

"Your Lordship I have only one copy of the memo."

"Then take it from me and read it."

*Reads the Memo*

"It says Judicial Magistrate."

"Judicial Magistrate is not the same as District Judge."

"I know your Lordship. But my learned friends..."

"I cannot go into those appointments. They will continue on an ad-hoc basis until the law relating to their appointments is followed. Mr. XYZ, how much time do you require?"

"Your Lordship, I cannot say. Please grant us the time which your Lordship feels is appropriate."

"Mr. ABC, any submissions?"

"Your Lordship would look at the names mentioned in the writ..."

"Have you made them parties to this proceeding?"

"No, Your Lordship. But a number of them do not have requisite experience required for appointment to the panel."

"Have you made them parties?"

"No, your Lordship. But Your Lordship, one of them even has an FIR under Section 302 pending against him."

"I am not going to pass any remark against any person unless you have made them parties to the proceeding."

(Mr. XYZ) "Your Lordship we have an email from the District Judge which we would like to show you regarding the appointment of Mr. [One Particular Public Prosecutor]."

*Hands over email printout to the Bench*

(Counsel) "It looks like the District Judge is interested in the continuance of the Writ Proceeding."

"Mr. Counsel! That is a very serious accusation that you are levelling against one of our judicial officers! Do you have any evidence?"

"What is the evidence that the opposite party is relying on?"

"This email!"

*Bench passes printed copy of email to the Counsel*

"Is your Lordship seriously relying on an email from gmail.com as primary evidence of consultation for appointment? The little knowledge I have, and it is very little, regarding Cyber Law, says that you cannot rely on an email as evidence without verifying the server and the receiver!"

"Are you disputing the evidence?"

"Yes!"

"Mr. XYZ, 17th, 18th, 19th of the next month, whichever is a Friday, come back prepared. In the meantime, the appointments will continue on an ad-hoc basis. Until February 28 or until further orders."

*Order passed accordingly*

As is evident, an off the cuff remark against the District Judge led to a hostile exchange with the Bench, which was salvaged by the counsel by disputing the evidece using, by his own admission, his 'very little' knowledge of Cyber Law.

Learn, dear reader, to buy time for your client, when the waters become choppy, rather than making any submission which would sink his ship.

A Visit to Tihar

noreply@blogger.com (Anshul Kumar Pandey) — Sat, 13 Jun 2020 18:29:00 +0000

It has been a while since I wrote on this blog. Things would have remained that way I guess, but a worldwide pandemic has finally forced me to break through the dreary dilemmas of law and publish here again.

I want to recount an experience when I was attending chambers of an Advocate and learning the ropes of the legal profession from him.

"Attending chambers" sounds like a gathering of aristocratic dynasts, wearing three piece suits, pipe in hand, discussing the high falutin' matters of the day while laughing at ribald jokes. It is a curious way of expressing the rigor of a demanding profession - a profession in which words are powerful and have psychological and material impact. Concepts, on the other hand, exist in the abstract till they are more determinedly fleshed out.

"Advocacy", as one of such concepts, exists somewhere at the back of one's mind and does not register in its full sense on one's conciousness because dealing with the machinery of law enforcement becomes a rigorous routine rather than being a novel one off experience. Perhaps those with an outsider's view of the law have a better understanding of the gravity of matters at stake rather than a young entrant at the bar. For him, it is just survival through sheer scrunching - moulding one's character, sharpening one's rhetorical and legal skill and becoming one with the legal fraternity, matter after another matter.

Still, there are some moments even for a young lawyer, where he steps back, and realizes the importance of the job that he is discharging. He realizes that there are matters of life and liberty at stake, and what seems to be a never ending academic exercise, actually reverberates powerfully outside the creaky courtrooms and into the individual lives of the litigants.

And so it was for me, when among the usual humdrum of legal rigor, I was suddenly dispatched to Tihar Jail to get a Vakalatnama signed from two inmates (A Vakalatnama establishes a lawyer-client relationship after it is duly executed and filed in the court).

I will not bore you, dear reader, with the details of how to reach the jail, how much time it takes from the court, which route one should take etc etc. Suffice it to say that in due course of time I found myself standing before the entrance of the jail and entered it.

Advocates have more leeway than others while visiting prisoners, but they too have to adhere to fixed timings for prison visit. I entered with half an hour remaining on the clock and heaved a sigh of relief. Entered my credentials in the visitor's register under the watchful gaze of the policeman seated there and finally came to the road that lead to the prisons.

Yes. You read that right. There is actually a road that leads to the prisons. What if prisoners unite and try to break and flee the jail? Who doesn't love freedom and a breath of fresh air? Ask the people who came out of self isolation after 2 weeks of quarantine how it felt. "Relaxed" they would probably reply. What if prisoners decided to "relax"? En masse?

So you have roads. Long, winding ones. Not because the authorities want to make sure that the fleeing inmates at least get enough cardio before they face the rat race of the big bad world outside, but because there are watch towers at frequent intervals on the sides of these roads so that they can keep a watch on the people coming inside and going outside. The inmate that I had business with, was lodged inside Jail No. 8. And that was a long walk.

When the walk ended, I came to the place with iron clad gates with a small passage to enter. There were high walls above the entrance. Barbed wire above the walls. There were watch towers inside this entrance with multiple sentries moving about on their posts. And because we Indians have an obsession with "killing two birds with one stone" mentality, the prominent sign on the gate wasn't the Jail numbers (they were less prominent) but a cheerful signboard announcing "Tihar Textiles" complete with its ISO Certification Number.

Now, the thing with iron clad gates is, you have to knock them hard for the people inside to hear you. And if you have ever tried knocking them with your bare knuckles, you would know that knuckles hurt a lot without making the kind of sound you would expect. Perhaps that is why the English phrase "cracked his knuckles" rings so true. Knuckles really do crack under pressure and the only sound they make is of their own cracking.

Anyway, the powers that be had shown mercy and had provided circular "knockers" (if I may call them that) for outsiders to come and use for the purpose of knocking the iron clad gates and making the kind of sound which, in ordinary course, is enough to knock even the most lethargic sentry off his feet. And so I took advantage of this state sanctioned opportunity to knock away.

Twice.

Thrice.

Four times.

Then I stopped. 2 minutes later, the door slowly opened and a policeman looked at me with the curious contempt reserved for young lawyers. I gave him the Vakalatnama, along with a letter addressed to the Deputy Superintendent, Tihar Jail about the details of the inmate I had business with along with my Bar Council ID and barely had time to mumble "Vakalatnama attest karwana hai" before he shut the gate back on my face.

Now the wait started. I was standing there in sweltering heat wearing black coat and black trousers without a place to even sit. I shuffled my feet and wiped the sweat off my brow. Within 5 minutes, a couple of other lawyers joined me as they too had come for attestation of vakalatnamas on behalf of their clients. We made small talk after they handed over the documents and joined me to wait for their turn.

Soon, we heard a police van approaching the gate. It came close to the entrance of the jail and then the driver, through a series of deft manoeuvres made the rear of the van face the jail entrance.

Watching us advocates from inside the van were prison inmates. Maybe they were undertrials. Maybe they were convicted. Maybe they had a court date. Maybe. But their gaze had a sort of longing for the freedom that they saw us enjoying. What was this freedom? It was the freedom to choose to be at Tihar Jail rather than to be sent to it forcibly. It was the freedom of choice.

The iron clad gates opened, and not just through the small passage through which I saw the policeman, but they opened wide. Inside, I saw, was a sort of a high ceilinged hall for the prisoners to be inspected, counted and then dispatched to their holding cells. A number of policemen sat in this hall, watching every move of every inmate, making sure nothing funny happened. I soaked in the visual details.

Once all the inmates were offloaded and counted and accounted for, the gates shut back again and the van made its way away from us. We went back to waiting for our names to be called out. Some 10 minutes later, my name was called out and I was handed back my documents. The Vakalatnama had the thumbprint of my client and the signature and seal of the Deputy Superintendent, Tihar Jail.

To be frank, I was hoping to meet my client. My senior hadn't told me that getting the Vakalatnama attested wouldn't involve me meeting the client and so I was under the impression that once my name would be called out, I would be allowed to enter the prison and meet my client. These turned out to be wishful fantasies of a young and inexperienced lawyer.

I understood that once you are inside that prison, the routine act of meeting face to face also becomes a luxury allowed within the confines of constitutionally regulated framework. Maybe, the freedom that ordinary citizens take for granted, is the freedom lawyers fight for. Maybe, that freedom was much more than mere freedom of choice - it was the freedom to be. Maybe, I had my first lesson in the impact of advocacy in the real world.

I had plenty to think about on my walk back to the exit.

A Meeting with Madam PM, Australia – October 17,2012

noreply@blogger.com (Anshul Kumar Pandey) — Mon, 12 Aug 2019 17:49:00 +0000

[Text of the Report previously available on Youth Ki Awaaz, and now being put here for records purposes]

On Tuesday, the 9th of October, Australia’s Prime Minister Ms. Julia Gillard, the first female Prime Minister and the first Female Leader of Australia’s ruling Labour Party, stood up in the house of representatives and blasted the Leader of Opposition into pieces by delivering an epic speech on Sexism and Misogyny in Australia and the Leader of Opposition’s double standards on the issue. The speech went viral on the social networking sites and Ms. Gillard was hailed as the first head of state anywhere in the world to have put the issue of gender sensitivity in a very clear perspective. Back here in India, I sat back and saw the way in which she launched the attack, awed by the content of her words and even more by her composure while delivering the speech.

It was in this context that I was overjoyed to receive an invitation from Youth Forum on Foreign Policy in my capacity at Youth Ki Awaaz to be a part of one of the very few people who would have a chance to interact with Ms. Gillard, when she visited India a week later. On 16th, I walked in the Australian High Commission in New Delhi to meet the woman who had overnight become an inspirational figure for countless women across the globe.

Here is the report on the interaction between the Australian Prime Minister and a group of young people representing various organizations and forums.

The Australian High Commission in New Delhi organized an interaction with the Australian Prime Minister Ms. Julia Gillard on Tuesday, October 16th, 2012. The interaction was attended by various people representing a wide spectrum of youth leadership in the country. The interaction was moderated by well known Television Personality and the anchor of popular chat show ‘The Devil’s Advocate’, Mr. Karan Thapar.

Beginning the interaction, Ms. Gillard said that she was visiting India to inaugurate the Oz Festival, the biggest Australian Cultural Festival in India which will span for four months and would tour 18 cities. She said that the message of the festival was to show that face of contemporary Australia to the Indians and showcase her country’s diversity. She said that she was extremely proud of being the premier of a multicultural nation and that the immigrants from various parts of the world added to the “tapestry of modern Australia“. She also touched upon the issue of Racism in Australia, which had hogged headlines in the past two years due to the selected attacks on Indians in her country. She said that both Australia and India had a large population of the youth and that the future of engagement between these two countries was going to be defined by the young people of both the nations. She also said that youth in both the countries can contribute to the emerging world order as the economic interests of India and Australia will continue to converge in the future. She added that the ideas and opinions of the youth did make a difference to the leaders across the world. It was therefore necessary that groups of young people, apart from being organized and being visible, should also come up with practical suggestions that the leaders could implement.

On being asked about the strategic challenges facing the region, the Australian Prime Minister replied that both the country’s region was one with the most middle class consumers. She said that the leaders across the globe have begun realizing this fact as the global economic weight has been gradually shifting to Asia and Asia Pacific. She said that ultimately, all the countries in this region would be responsible for shaping the strategic reality of the region.

On the issue of the sale of Uranium to India, Ms. Gillard said that it would take time for both the countries to negotiate a civil nuclear cooperation agreement. She also added that her party’s decision to sell Uranium to India, reversing a 40 year old policy, was not based on any strategic calculations.

Replying to a query on how women in both the countries can be a part of mainstream political dialogue, Ms, Gillard replied that both the countries were at the midpoint of change in politics for women. She said that she was optimistic about this change and that she was sure that soon it would be routine for the people in both the countries to see half the parliament occupied by women members, the election of a female Prime Minister and the increased induction of women ministers in the cabinet. She expressed hope that soon both the countries would get to a stage where their political dialogues were gender blind.

Upon being asked about the United State’s increasing role in the region and the advantages and risks associated with it, the visiting Prime Minister replied Australia had a long term alliance with the United States. She said that the United States has been engaged in the region and that it was a “force of stability“. She added that her government was of the view that it was important for countries in the region to develop and nurture a relationship of peace and accumulate habits of cooperation.

Ms. Gillard was also asked about Australia’s relationship with China and how was her government looking forward to balance that relationship in the context of its relations with India, to which she replied that Australia had a strong and deep engagement with China. She said that her country wanted to see the rise of China optimistically and that relationship between different countries was not a blind sum game. She opined that China’s growth did not translate into the contraction of India’s market and that the region was emerging into the age where there will exist a dominance of multiple nations. She added that it was important for both India and China to build a mutually beneficial relationship for peaceful co-existence in the region.

On the issue of maritime security, Ms. Gillard repeated that it was important for countries across the region to foster a habit of cooperation and that issue regarding maritime security and conduct needed to be governed by the rule of the international law.

Answering a query on the Millennium Development Goals and their effectiveness and impact, Ms. Gillard said that the MDGs have been remarkable catalysers to world’s efforts in eradicating global poverty, lowering maternal mortality etc. She said that it was important for the nations to not lose hope after 2015 and push for achieving these goals even after their time frame has ended.

Concluding the session by elaborating on her relationship with Dr. Manmohan Singh and the Government of India, she said that it was not her mandate to lecture other countries on their domestic politics. She said that it was important that in order to maintain economic growth, a country also ushers in economic reforms. She added that it was a difficult task for politicians around the world to implement economic reforms and change the status quo.

Post Script: After the formal interaction, I had a chance to interact one on one with the premier where I briefed her about the work of Youth Ki Awaaz. She congratulated the entire team on their efforts saying that Youth Organizations like ours were needed in order to spread awareness and increase advocacy of critical issues. I also asked her about the efficacy of mechanisms which reserve a given number of seats for women in the country’s Parliament by referring to the practice in her own country, where, instead of bringing about a law to this effect, her party has been internally reserving 35% of “winnable seats” for the women candidates. She answered by saying that different countries had their own different way of functioning. Drawing my attention to Papua New Guinea where a vote to this effect had recently failed, she said that it was for the countries themselves to find out which way would work the best in increasing female participation in mainstream political discourse of their respective countries.