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THE ART OF CROSS EXAMINATION

2013-06-16T18:39:00.004+05:30

Cross Examination-: Cross examination is a part of the trial process in which the witness called by the one’s opponent is examined.

AN INTRODUCTION TO CROSS-EXAMINATION

Purposes of Cross-Examination

The first decision to make is whether you should even cross-examine a witness.

In order to make that decision, you must know what you want to accomplish by cross examining a witness. Authorities on trial practice, following are the factors which are to be considered-:

1 . Did the witness hurt your case by the testimony given on direct Examination? If so, can you minimize or repair the damage on cross-examination?

2. Can you obtain testimony on cross-examination to help your case?

3 . Can you obtain testimony on cross-examination that will hurt your Adversary’s case?

4. Do you need the witness to establish an evidentiary foundation to admit a document or other exhibit in evidence?

5. Can you discredit the testimony given on direct examination? In other words, can you demonstrate inconsistencies in the testimony given on direct examination? Can you demonstrate that the testimony given on direct examination conflicts with the testimony of other witnesses?2

6. Can you discredit the witness? For example, can you show that the witness is biased? Prejudiced in favor of your adversary and/or against your client? Has a motive to lie? Is personally, financially, or otherwise interested in the outcome of the litigation? Was not in a position to see or hear the event that he/she testified about on direct examination?

7. Can the cross-examination be used to enhance or destroy the credibility of other witnesses?

8. Is the witness so important that you should undertake some sort of crossexamination to fulfill the expectations of the case?

Unless the answer to one or more of these questions is “yes,” you would be well advised not to cross-examine the witness.

you state “No questions.” The judge may even understand that you have no questions for the witness because the testimony given on direct examination was not important.

Guidelines for the Cross-Examination

Cross-examination almost always ventures into dangerous territory. The reason for this is that the witness is usually adverse or hostile to your client’s position.

Therefore, you must control the witness and, more particularly, the witness’ testimony. This can be accomplished by following certain guidelines during the cross-examination.

1. Do not ask a question unless you are reasonably certain that you already know the answer. (Some would say do not ask the question unless you are certain you know the answer). Cross-examination is not the time to discover new facts. It is not the time to be curious. Remember, curiosity killed the cat. It may likewise kill your case.

2. Treat the witness fairly. You should not be hostile, especially if you want to gain concessions from the witness, including that he/she may have been mistaken in his/her testimony on direct examination.

3. Use leading questions. A leading question suggests the answer, which is usually “yes” or “no.”

4. Never ask open-ended questions—questions that ask “how” or “why” or that require the witness to explain. These types of questions can lead to disaster. Never allow a witness to explain anything on cross-examination.

5. Listen to the answers. Do not mechanically ask one question after another without listening to the witness’ answers. The answers may contain the favorable testimony that you are seeking to obtain in the crossexamination. When this happens, you have accomplished your task and you should consider ending your cross-examination. On the other hand, if

you do not listen to the answers you may not hear damaging testimony

that should be addressed.

6. Do not allow the witness to repeat (and therefore reinforce in the mind of the judge) the testimony given on direct examination. There is no reason to

ask a question that allows the witness to repeat his testimony. The odds

are very small that the witness will testify differently on cross examination. You know the testimony given on direct examination, the

witness knows the testimony, the judge knows the testimony. So just dive

into your cross-examination.

7. Keep your questions “short and sweet” and in plain English. Your goal is to obtain one fact with each question. Ideally, each question should be posed as a declaratory statement of a single fact calling for affirmation by the witness. This will make the cross-examination much more manageable for you, prevent objections from your adversary (for example,that you are asking compound questions), and allow the judge to more easily follow and understand your cross-examination.

8. Ask the important questions at the beginning and end of your cross-examination. People, including jurors, remember best what they hear first and last. Conclude your cross-examination on a high note—your strongest point.

9. Your cross-examination should be brief. Remember, you are trying to

“score points” to be used in your closing argument. In a lengthy crossexamination, your strongest points will be lost and the less significant points will be forgotten by the judge.

10. Control the witness’ answers. The best way to control the witness’ answers is to ask simple and clear questions. By doing so, you will not give the witness an opportunity to provide harmful testimony. If your question calls for a “yes” or “no” answer and the witness provides additional testimony that is harmful to your case, you should ask the court to strike the testimony as being nonresponsive to your question. Although you cannot “unring a bell,” the judge eventually will understand that the5 witness’ conduct is improper. If the witness answers a question other than the one you asked, ask it again, and yet again if necessary.

11. Do not ask one question too many. Remember the purpose of crossexamination—you are trying to obtain favorable testimony so it can be used in your closing argument. You need not ask the ultimate question that will drive your point home to the judge. Instead, your cross-examination should only suggest the point to the judge. Your closing argument will Drive the point home. Remember Irving Younger’s line from his famous lecture on cross-examinations: “Sit down!”

The use of these guidelines will allow you to be in control of the crossexamination. By being in control, you will be in a better position to obtain the testimony to fulfill the purposes of your cross-examination.

Scope of Cross-Examination

The evidence rules provide that “[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.credibility need not be based on evidence adduced at trial. As a result, you will always be entitled to establish, for example, that the witness is biased or prejudiced, has a motive

to lie, is interested in the outcome of the case or has made a prior inconsistent statement. These areas of impeachment will be briefly examined shortly. In addition to the subject matter of the direct examination and matters affecting the credibility of the witness, the cross-examination may also delve into “additional matters”, subject to the court’s discretion. This means that a witness who “opens the door” to additional matters during the cross-examination may be questioned on the matters as if they were discussed during the direct examination. Moreover, as a practical matter, at the “end” of your cross-examination, you may ask the court for permission to examine the witness on matters not covered on direct examination rather than later calling the person back to the stand as your witness. Challenging the Reliability of the Testimony

At this point, you should have an understanding, or at least an appreciation, of the purposes, guidelines and scope of cross-examination. Now we will examine several specific areas of cross-examination, including challenging the reliability of the witness’ testimony and impeaching the credibility of the witness by demonstrating bias, interest, prejudice, motive, and prior inconsistent statements. Assuming that you proceed with cross-examination, you must, if at all possible, challenge the reliability of the witness’ testimony. This area of cross-examination involves examining the witness on what he/she saw, heard, remembers and is able to describe about an event. It seeks to discredit the witness’ testimony. For example, on direct examination a witness may testify about the cause of an accident (what he/she saw or heard). On cross-examination, you should seek to obtain testimony that the accident occurred quickly and unexpectantly, that the witness was not in a good position to see the accident, etc. The cross-examination should plant a seed in the minds of the judge that the accident may not have happened as described by the witness on direct examination. You should also establish that the witness has forgotten details of the event and/or is unable to accurately testify about an event. This will cause the judge to question the accuracy or reliability of the witness’ testimony on direct examination. For example, on direct examination the witness may have testified about the distances between vehicles before an accident. On cross-examination, you should seek to establish that the witness’ testimony about the distances is not accurate or reliable.

Impeachment

Impeachment means discrediting the witness. In other words, attacking the credibility of a witness. The goal is to demonstrate that the witness and/or the witness’ testimony on direct examination should not be believed. There are various methods of impeachment, including bias, interest, motive, prejudice and prior inconsistent

Law Relating to Cyber Squatting

2013-06-06T17:50:00.001+05:30

As the scope of Internet is expanding day by day and more and more businesses are moving on the internet. sites like www.ebay.com, www.facebook.com, www.gmail.com etc. Have earned lot of reputation and are identifiable by their domain name then by any other trademark. While trademark is for physical world, domain names are the trademarks in the virtual domain. However Indian trade mark law does not recognizes domain name as trademarks, But still domain name work as a trademark, they are equally vulnerable to get infringed, diluted by the use of any other similar domain name.

Cybersquatting-This is a practice done by those people who are intending to infringe the already used domain names specially those domain names which have a goodwill and reputation, they use the unused space in the domain name space and just register a domain name which is deceptively similar to the reputed domain name and then they resell the deceptively similar domain name to either those persons who want to en cash upon the goodwill and reputation of the well known domain names, or to the reputed sites themselves to protect their good will they buy those domain name at an inflated price.

The World Intellectual Property Organization (WIPO) Arbitration and Mediation Center deals with domain name disputes under the new Uniform Dispute Resolution Policy applicable to generic top-level domain names adopted by the Internet Corporation for Assigned Names and Numbers (ICANN) on August 26, 1999. The WIPO Center’s Domain Name Dispute Resolution service has been established specifically to administer domain name disputes with the availability of electronic case filing facilities and a well developed case administration system.

Uniform Domain Name Dispute Resolution Policy was formed by the recommendation of (WIPO) and it is thereby formed to facilitate the dispute resolution due to use of domain name in bad faith.

i. If the use of an Impugned Domain is infringing upon the reputation or the goodwill of any other domain name then the impugned domain can be blocked by the body.

ii. If the Impugned domain is made to make profit from reselling because of its infringing nature, the body keeps a check on these practices.

iii. The UDNDRP keeps a check on non bon fide use of trade name.

iv. It keeps a check on those domain names which causes confusion in the people.

The first case of cybersquatting was of WWF where the respondent had allegedly made a site www.worldwrestlingfederation.com and offered it to sell it to WWF at high dividend, WWF filed the suit against the respondent and found out that the alleged domain name is perhaps made in bad faith and hence was infringing upon the reputation and goodwill of the respondent. So the forum ordered to transfer the impugned domain name to WWF.

In India the first case of cyber squatting was of Yahoo Inc. V. Aakash Arora & Anr. Whereby the registered a deceptively similar domain name yahooindia.com, it was found banking upon the reputation and goodwill of yahoo.com

The Bombay High Court in Rediff Communication v. Cyberbooth & Anr AIR 2000 Bom. observed that the value and importance of a domain name is like a corporate asset of a company. In this case the defendant had registered a domain name radiff.com which was similar to rediff.com. The court gave a decision in favor of the plaintiff.

In another case the defendant registered a number of domain names bearing the name Tata. It was held by the court that domain names are not only addresses but trademarks of companies and that they are equally important. (Tata Sons Ltd v. Monu Kasuri & others 2001 PTC 432)

In Satyam Infoway Ltd. v Sifynet Solutions 2004 (6) SCC 145 domain names www.siffynet.com and www.siffynet.net was found to be deceptively similar and Infringing upon the reputation of satyam, In this case The Supreme Court held that “domain names are business identifiers, serving to identify and distinguish the business itself or its goods and services and to specify its corresponding online location.” The court also observed that domain name has all the characteristics of a trademark and an action of Passing off can be found where domain names are involved. The decision was in favor of the plaintiff.

Conclusion

With the initiative of the WIPO and Indian laws now with synchronization with the WIPO, it is now a clear law that cybersquatting is now being treated at par with the trademark infringement, because merits on which the cybersquatting cases are decided are at par with that of trademark infringement .However still as the arena of cyber space is increasing day by day and with innovative features like cloud computing and businesses largely operating online, Even various business transactions are being handled from domain addresses than from physical addresses. There is a need to setup a specialized forum in the country to handle domain name related disputes. There must also be a specialized mechanism to dispose off these domain related disputes in the lines of UDNDRP.

Supreme Court on Auctioning of Natural Resources

2013-06-02T20:29:00.001+05:30

“A Duly publicised auction conducted fairly and impartially is perhaps the best method for discharging this burden and the methods like first come first served when used for alienation of natural resources/public property are likely to be misused by unscruplous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values.”

G.S.Singhvi J, in Centre for Public Interest Litigation v. Union of India (2012) 3 SCC 1, para 96

The limits of territorial nexus requirement in light of Vodafone case and the Finance Act, 2012

2013-05-28T11:56:00.000+05:30

The limits of territorial nexus requirement in light of Vodafone case and the Finance Act, 2012

The dispute between the Vodafone International Holdings B.V and Indian tax authority raised the question of the territorial nexus of the Indian taxation authority on the foreign company’s transactions.

What is the dispute?

Brief facts of the case are: In December, 2006, Hutchison Essar Ltd. (HEL) is a company which is registered in India and having all the capital assets as well as providing services to 23 telecom circles in India along with subsidiary alliances. The share distribution of the HEL is 33% and was held by the Essar Group of Companies which is also an Indian Registered company. But the remaining 67% interest of Hutchison Essar Ltd. (HEL) was held by Hutchison Telecommunications International Ltd. (HTIL), which is a Hong Kong based company and through a maze of subsidiaries in British Virgin Islands, Cayman Islands and Mauritius (around 15 offshore companies) and through complicated ‘option’ agreements with a number of Indian companies.

Hutchison Telecommunications International Ltd. (HTIL), is a foreign company as far as tax liability on company is concerned.

Vodafone International Holdings B.V is also a Foreign company whose operations are based in Netherlands is said to have entered into an agreement with HTIL through HTIL subsidiary Cayman Island company of the Hutch Group [viz., CGP Investments (Holdings) Ltd. (CGP)] to acquire an Interest in 67% share of HEL, thereby overtaking the control and operations of HEL which is an Indian company.

In the context of aforementioned transaction between the two foreign companies the Vodafone company is liable to pay capital gain tax as it has acquired an Interest in an Indian company and Indian Tax authority have a jurisdiction over the Indian company HEL and Vodafone by acquiring the shares have a full control over the assets of the HEL and held to have gained a capital asset thereby. This is the subject matter of the dispute.

The Vodafone contended that the Indian Taxing authority have no territorial nexus over the subject matter as the transaction happened between the two foreign companies and on the foreign land .Also the transfer of shares is between CGP and Vodafone and there is no capital gains as alleged since the operation and management of both the companies are outside India, since there is no transfer of assets between HEL and Vodafone there is no question of capital gains.

There is a tax evasion of about 12000 crores as alleged by Income tax authority.

Key contentions by the parties on Dispute.

The Indian taxation authority issued a notice to Vodafone BV for the payment of Capital gain tax which was due on them as now after the aforementioned dealings the company has started operations in India under the flagship of Vodafone as it now holds majority shares in HEL, Aggrieved by the said notice the Vodafone BV approached the High court through a writ petition.

The main contentions of the taxation authority were that subject matter is not limited to transfer of share from CGP to Vodafone but also includes transfer of rights of HTIL vested in HEL thereby facilitating Vodafone operations in India which is proved by share agreement between HTIL and Vodafone and also by other purchase documents, Such transaction has a sufficient territorial nexus to India and is chargeable to tax under the Income-tax Act, 1961.

The Vodafone on the other hand contended that such transaction represents a transfer of a share (which is a capital asset) of a Cayman Island company, i.e., CGP. CGP through its downstream subsidiaries, directly or indirectly controlled equity interest in HEL. Any gain arising to the transferor or to any other person out of this transfer of a share of CGP is not taxable in India because the asset (i.e., share) is not situated in India.

The Bombay HC rejected the petition of Vodafone on the grounds, The HC first found that there is a nexus between the Indian fiscal jurisdiction and the said transaction in issue, The court held that the transfer of share between the Vodafone BV and CGP was for a motive of discontinuing the operations of HTIL through HEL in India and replacing with Vodafone BV, along with the transfer of shares there was also transfer of certain Interests of HTIL to Vodafone BV in order to complete the transaction and these Interests of HTIL is a capital assets which was held in India and was transferred to the Vodafone. Thus since the territorial nexus was established the provision of s195 IT Act was applicable on the transaction.

Again Aggrieved by the order of High court the Vodafone company approached the Supreme Court, The supreme court remanded the assessing officer (AO) over the jurisdiction issue whether the AO has a Jurisdiction to adjudicate the issue, to which AO affirms and passed an preliminary order u/s 201 of the IT Act.

The Vodafone company again approached the high court against the impugned order of the AO to which the Income Tax department contended on mainly two grounds, Firstly on the basis of sec 9 of the IT act, they contended that CGP is only a stock holding company and “underlying assets are

Situated i.e. in India .Further, HTIL had extinguished its right of control over HEL and extinguishment of „rights and entitlements‟ constituted as „Capital Assets‟.

Secondly, The term „any person‟ also includes „foreign company‟. Further, VIH has a presence in India on account of its shareholding and joint venture with another Indian telecom company. Based on the above two contentions the Indian taxation authority have a full territorial nexus over the Vodafone even if it is a foreign company. The high court Agreed with the contentions of Indian taxation authority and announced its judgement in favour of the Tax authorities.

So there are two law points which were primarily considered in this case which was to be decided by the Supreme Court, section 9 of the IT act and section 195 of the act.

Again an appeal was filed to the supreme court against the impugned order of the high court.

Supreme court observations

1. The SC adopted “look at” approach instead of “look through approach in order to interpret sec-9 of the I-T act, for fulfilling the requirements of sec 9 three things are mandatory „transfer‟, „existence of a capital asset‟ and „location of such assets in India‟ s, In this case, There is no existence of any existence of capital assets here in India or outside India, Further section 9 does not Include “underlying capital asset”

2. The SC observed that Vodafone had only acquired certain percentage of shares in HTIL which made them influence over HEL in terms of voting, nomination of directors and management rights. Hence, there was no extinguishment of rights. Moreover sale of shares of HEL was not made directly and it occurred indirectly by virtue of change of shareholding of HTIL.

3. Further Transfer of shares does not amount to separate entitlement of HEL shares and HEL capital asset should not be separated in order to satisfy conditions in sec-9.

4. The offshore transaction was between two foreign companies (non-residents in India) entered into on principal to principal basis. It is outside India’s territorial tax jurisdiction and hence not taxable in India so should not be subjected to withholding tax obligations in India.

Comments

The SC was right in its approach and since these type of transactions are commonly aimed in saving taxation in India and are practice, just because the amount of tax was 12000 crore, it does not change the law. The primary crux of these type of transaction are that since both the firms are foreign companies and also there was no involvement of any capital asset transfer, however since the company has “indirectly” acquired the capital assets in India that’s why the Sec9 is not applicable unless it is amended, Sec 195 does not have a wide scope as it applies on Resident companies and not on foreign companies .The Vodafone case was a precedent for tax saving tactics by the FII’s. However still the Indian government is in no loss position considering the jobs creation done by these FII’s, further the employees of these FII’s pay taxation in terms of crores. Which is enough to compensate the loss, but still the government is against this tax saving tactics and has announced a Finance Act-2012.

Finance Act-2012 and territorial nexus of Income tax Authorities

The Indian government after facing a defeat in Vodafone case have amended section 9 of the IT act which retrospectively amended the law and have inserted many provisions in including below mentioned clause-:

Explanation 5.—For the removal of doubts, it is hereby clarified that an asset or a capital

asset being any share or interest in a company or entity registered or incorporated outside

India shall be deemed to be and shall always be deemed to have been situated in India, if

the share or interest derives, directly or indirectly, its value substantially from the assets

located in India

Impact of the Amended clause on Vodafone judgement

Previously the scope of Section 9(i) was limited to “capital assets” and direct as well as indirect interest in it, by any Indian as well as foreign company, also the “capital asset” must be situated in India.

In the Vodafone case there was no involvement of capital assets. However the Interest on the capital assets were acquired through “shares” which were not earlier deemed to be as Capital Assets. That’s why the Vodafone was successful as Indian taxation authorities failed to prove transfer or entitlement of “capital Assets”. However the transaction of acquiring share does involve transfer of capital asset as Vodafone acquired full control over the management of HEL but it does not means that it has acquired the assets. The loopholes in the law help Vodafone to save the tax.

The territorial nexus of Indian Authorities were limited to involvement of “capital assets”, As far as “capital shares” are concerned they have no jurisdiction. In order to fill this void they have introduced the above mentioned explanation in a retrospective manner. The explanation will overrule the judgement of the Vodafone case in which the supreme court had clearly figured out that the transfer of share does not means separate entitlement of capital assets .The link between the capital shares and capital asset was clearly broken as both were separate entities in their respective spheres, but indirectly they both had a hidden link, the law was not clear to its point on this link as there was void.

Now with recent amendment, if the “capital shares” has a direct or indirect interest which is deriving in India on any “capital asset”, then the company acquiring that “capital shares” is deemed to be Indian.

Now Vodafone has acquired a capital share which is Indirectly linked to a capital asset which is in situated in India, However Vodafone did not acquired any direct or Indirect interest in capital asset but has acquired “capital share” which clearly are not “capital asset”, but the value of these “capital Share” is derived indirectly from the “capital assets” which are situated in India. Thus the liability on Vodafone arises as per the above mentioned amendment.

The Amendment of Section 9 overruled the SC judgement, since the company is now deemed to be a resident company; the provisions of Section 195 are now applicable, thereby increasing the nexus of the Indian taxation authority over the foreign company’s agreement.

The Amendment has clearly filled the void between the “capital Asset” and the “capital share”, if the value of “capital share” is proportional to the “capital asset” then the test has been established and the territorial nexus of the Indian taxing authorities will hold the neck of those who have purchased the share in capital assets, since the amendment is retrospective it will impact the Vodafone judgement.

Conclusion.

The amendment re-establishes the residential status of the foreign firms, even if they are directly not operating in the territorial limits of India, still they are liable. The amendment is aimed at discouraging the sentiments of foreign investors and is really a bad move by the government.

India is among the preferred place for investment and is looked forward by global investors and this type of step will taint the image of India as a preferred destination of investment, by increasing the territorial nexus of Indian taxation authority the step will further slowdown the economy of an already struggling economy.

Sec-9(i)- All income accruing or arising, whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through or from any asset or source of income in India, or through the transfer of a capital asset situate in India;

Sec 195 (1) Any person responsible for paying to a non-resident, not being a company, or to a foreign company, any interest (not being interest on securities) or any other sum chargeable under the provisions of this Act (not being income chargeable under the head "Salaries" shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, deduct income-tax thereon at the rates in force :

Sec 201 (1) If any such person and in the cases referred to in section 194, the principal officer and the company of which he is the principal officer does not deduct or after deducting fails to pay the tax as required by or under this Act, he or it shall, without prejudice to any other consequences which he or it may incur, be deemed to be an assessee in default in respect of the tax :Provided that no penalty shall be charged under section 221 from such person, principal officer or company unless the Assessing Officer is satisfied that such person or principal officer or company, as the case may be, has without good and sufficient reasons failed to deduct and pay the tax.

By-Nitish Banka

The 40th Year of Keshavnand Bharti Judgement

2013-04-26T12:40:00.002+05:30

Since the inception of our constitution there have been doubts, vagueness about various provisions which are embodied in our constitution and supreme court has played a very significant role in interpreting these vague provisions and filling the void. And one of the most controversial provision was amendment of the constitution. The Amendment of the constitution has been there in Article 368 and basic purpose of this provision is to infuse flexibility of our constitution but bounds of this provision was not marked, However parliament was entitled to amend the constitution and also the procedure was also there in Art 368 but how much power is conferred in the parliament to amend the constitution was still under the shadow.

One of the important features are the fundamental rights, But they are part of the constitution. In Art 13 it is clearly mentioned that any law which abridges the fundamental right is void, But what about the constitutional amendment, The biggest question before the court for a long time was Can the fundamental rights can be amended and can be attenuated as per the wish and whims of the parliament? There have been different case laws to interpret this dilemma but none was concrete and in no time the decision of the Supreme Court got overruled by another.

Starting from very first amendment which was challenged by “shankari Lal V UOI “ It was contended in this case that the “Law” defined in Art 13(2) is the same law which is to be amended by art 368 and if this “Law” abridges the fundamental rights it is void. The supreme court made it clear that the word “law” in art 13(2) is the ordinary law, But the “la w” which is to be amended by art 368 is constituent law and is outside the scope of Art 13(2), This meant if any provisions which may be inserted in the constitution is in violation of any of the fundamental rights is not void. This also meant that the parliament has an Inherent power to amend the fundamental rights and can even remove the fundamental rights.

But 20 years later the supreme court overruled the Shankari Prasad judgement in “Golak Nath V State of Punjab” The Parliament has no power to abridge or amend the fundamental rights as fundamental rights are transcendental position under our constitution, and clear it’s stance that an Amendment is a law within the meaning of Art 13(2), The supreme court took a u turn on it’s earlier path and thus made two stance extremely opposite to each other.

Due to which the parliament in it’s 24^th amendment parliament has inserted a provision in Art 368 “Nothing in Article 13 shall apply to any amendment made under this article” and hence overruled the Golak Nath judgement. Which was challenged by the Keshavnand Bharti case In this case the supreme court upheld the validity of 24^th Amendment which again raised the serious question again up to what extent the whole constitution can be Amended ?Can the parliament take away the fundamental rights by amending it? The court was in opinion of taking a middle path.

1. While affirming the Parliament can amend any of the provisions of the constitution as per the procedure in article 368.

2. However the power to amend is limited keeping in mind the Basic features of the constitution.

3. The basic feature includes secularism, socialism, equality, Federal character and separation of power.

4. The basic feature also includes fundamental rights and directive principles.

The court further held that the provision inserted in 24^th amendment is valid as it made what was implied in art 368 as express and does not abrogate any fundamental rights.

Making the decision more flexible the Supreme Court clearly mentioned that the fundamental rights can be abridged reasonably but cannot be abrogated. In order to preserve the basic features of the constitution the judgement was a Savior of our constitution. It preserved both rigidity and the flexibility, by inserting the bounds of “basic structure”. The “Basic Structure” hence forms a safety valve against the abrogation of the fundamental rights.

However some of the dissenting judges criticized the Doctrine of Basic Structure, They describe it vague as there was no subject matter that clearly specifies what “Basic structure” is and what is not?

However the landmark judgement of Keshavnand Bharti has kept the spirit of the constitution alive and prevented the misuse by the parliament against wipe off the constitution and thereby protecting the fundamental rights of the citizens.

By-: Nitish Banka

5 Things To Do Before You Even Think About Getting A Divorce

2013-04-24T20:27:00.001+05:30

There are many steps to take to protect yourself in a divorce. This article will get you started. Your best bet is to talk to a lawyer before you do anything.
1. Talk to a Marriage Counselor or other professional who may be able to help you save your marriage.
Even if you don't think there's hope for the marriage, "divorce counseling" can help you discover what went wrong, how to cope, and how to pick up the pieces and go on. Don't wait for your spouse to participate. If you don't know how to find a qualified counselor, our firm will be glad to recommend one or you can check out the directory of professionals at stayhappilymarried.com. Your employment, social or religious contacts might also provide leads.
2. Talk to an attorney before you do anything.
Even if you don't end up hiring an attorney to handle your separation or divorce, you would be well advised to get as much information as you can before you even discuss divorce with your spouse. There's a lot to know about divorce in North Carolina?our laws are complex and even the simplest situation can be very confusing to families already in distress. Actions you take now may very well affect the outcome of your divorce (see #3) and you need to understand your options ahead of time?not some time down the road when it may be too late to alter the outcome. Click here to find attorneys who are well versed in the intricacies of North Carolina divorce law.
3. Do not move out of the marital home without talking to an attorney first.
Leaving the house without a good reason may cause you to pay alimony or may result in your inability to collect alimony. If you leave the house, you may also be unable to return until after a court divides the property. This process might take more than a year. The best advice is to stay in the house until after you talk with an attorney unless your spouse is violent. If your spouse is violent, you must take all steps necessary to protect yourself and your children.
4. If you have been involved in any extramarital affairs, talk to a lawyer before you discuss this with your spouse or anyone else.
In this case, honesty may not be the best policy. In addition to the fact that adultery is illegal in some states, admission of an affair can have other dire consequences. If your spouse is a candidate for alimony, any illicit sexual behavior on your part (during the marriage?which includes the time you are separated) could end up costing you thousands in additional alimony payments.
5. Take concrete steps to safeguard your assets before you and your spouse begin discussing divorce.
One of these steps is to take possession of certain assets during separation, especially those assets you wish to be using, such as furniture and vehicles, and those assets that might be liquidated by your spouse, including precious gems and stones, other collectibles, cash, and bearer bonds.
Another self-protective step is to file what is known as a Lis Pendens in the Deeds Office of any county where you and/or your spouse own real property. The lis pendens puts third parties on notice of your claim to have an interest in the real estate against which the lis pendens is docketed. The lis pendens is basically a notice of pending litigation that may affect real property. A properly recorded and served lis pendens clouds the title to the property, preventing an effective sale of the property behind your back. The rules regarding a lis pendens contain very specific requirements, all of which are spelled out in section 1-116 and the following sections of the North Carolina General Statutes.
A third possible step to protect the assets of your marriage is to get an injunction restraining your spouse from transferring or otherwise disposing of any property covered by the restraining order. Your attorney can also use an injunction to get your separate property returned to you, where your separate property is in the possession of your spouse and the spouse refuses to give it to you. The equitable distribution statute also provides a means for you to obtain an interim distribution of marital property, pending a final resolution of the property matter. Such an interim allocation could, for instance, give you much needed funds on which to live.
Other protective measures you might consider in your divorce planning include: (1) protecting your own credit rating by freezing or closing joint cards and by blocking your spouse's access to other joint credit such as a home equity loan; (2) closing joint bank accounts and opening accounts in your own, individual name; (3) changing the name of the responsible party on utility and other bills; and (4) spending where possible your spouse's separate property first, marital property next, and your own separate property last.
While this list will help you get started on the right track, it is by no means a complete list of all the things you need to do and know if you are considering a divorce. For more information about the rights and duties of separating and divorcing husbands and wives visit http://www.rosen.com. You'll find a complete law library, downloadable divorce forms, a legal fee calculator, a child support calculator, lists of professionals who can help you and stories from people just like you who have survived divorce.

Misuse of Domestic Violence Act

2013-04-07T00:18:00.001+05:30

The domestic violence act hereinafter referred as dv act which was incorporated in the year 2005, The main purpose of this act is to prevent woman only woman from domestic violence, from the bare reading of the definition of the act we can see that the term “aggrieved person” includes only women, means only the men can be prosecuted not the woman, In the 21^st century we treat women at par with men and there have been many incidences where a women are involved in insult, humiliation, verbal and emotional abuse to men. It is not a rare possibility that women are indulging in domestic violence against men but this is a reality, our constitution guarantees equality, means men and women must be equally treated, then why in dv act there are provisions for women only and not for men, why women are protected and why there is presumption that men is the only gender which can do cruelty, domestic violence on women, why not vice-versa.

The dv act has given an undue advantage to the women and it is the most lethal weapon which women can use against men to extort, exploit, and threaten men community just like terrorism. The dv act has provisions like right to residence regardless of legal right on the property, maintenance. The provision in law makes the law easily vulnerable to misuse. which is a fact statistics have shown that only 2% of all the cases have resulted in conviction and 98% of the cases are deemed to be fake and there is no provision in dv act if a fake case is lodged then there is no provision for punishment for the women. For the name of protection of women the prosecution of innocent men is against the rule of law, A women can misuse the law very easily like for example A man can be booked under the DV act if she feels that she has been insulted. Insult is a relative term, which is totally left to her discretion. Interestingly, if she insults and abuses him verbally or even physically, he does not have any legal recourse in this law, even the minor differences in matrimonial ties could invoke the provisions of DV act, moreover the procedure of law is governed by CRPC that means a man even making a very light insult to a women is treated like a criminal. if the case is false the reputation of man and his family is tainted and there are no steps or legal protection available to men to protect his reputation . In other words this law treats men like sitting ducks.

For taking easy divorce and maintenance the DV act is the first weapon used by the women even if she is not subjected to any such type of domestic violence, even if the matter is sub-judice the men are obliged to pay maintenance to women, this means that punishment for men start as soon as false complaint is lodged, which is against the principles of natural justice where there is presumption of innocence.

The fact is DV act has failed to attend the problems faced by women and men on subject of domestic violence, the law is often misused then to be used. The need of the society is to make more gender neutral laws which treat men and women equally in the cases of domestic violence and not to induce fear in the minds of innocent people like most of the men and give an extortion tool to the other gender. The DV act is gender biased on the face of it, The DV act needs to be amended with more gender neutral provisions to prevent its misuse and to achieve gender equality and fair justice.

“An unjust law is itself a species of violence. Arrest for its breach is more so.”
Mahatma Gandhi

The Critical Analysis of Novartis V Cipla Case Verdict by Supreme Court.

2013-04-03T16:42:00.000+05:30

The Critical Analysis of Novartis V Cipla Case Verdict by Supreme Court.

In a landmark judgment that has the potential to change the direction of India's pharmaceutical business, The Supreme Court denied that the drug Glivec manufactured by the pharma giant Novartis is qualified for getting patent in India.

A Brief about the Facts in Issue

Novartis a Swiss based pharmaceutical company filed a patent application in the year 1997 to grant patent to its drug named Glivec which was a critical drug used for the treatment of leukaemia on the ground that it invented the beta crystalline salt form (imatinib mesylate) of the free base, imatinib.

However at that time India was not in a position to grant patent to pharmaceutical products and agrochemical products, In the year 2005 in compliance with the TRIPS agreement India thereon started to grant patents in pharmaceutical drugs. Parliament introduced a significant and important provision to prevent ever greening and granting of frivolous patents— section 3(d).

Subsequently the matter of Novartis was taken up by the patent controller, CPAA and other generic companies filed pre-grant oppositions against Novartis patent application for imatinib mesylate, claiming, among other things, that Novartis alleged “invention” lacked novelty, was obvious to a person skilled in the art, and that it was merely a “new form” of a “known substance” that did not enhance the substance’s efficacy, and was thus not patentable under section 3(d).

Novartis was already granted Patent for the salt imatinib in the year 1993 in United States itself and the present application was based on one of the specific compound of the already invented salt.

The Application was rejected by the patent controller as the invention failed to comply with condition laid down by section 3(d) of the patent act.

This meant that the generic manufacturers were now free to manufacture the generic version of the drug.

But Novartis challenged the decision of patent controller in Madras High court in the year 2006 by filing number of writ petitions. Challenging to the constitutional validity of section 3(d) was that the use of the term “efficacy” in section 3(d) is vague and ambiguous, and therefore violates the equality provision (Article 14) of the Indian Constitution.

While dismissing Novartis’ writ petitions, the Madras High Court held: “We have borne in mind the object which the Amending Act wanted to achieve namely, to prevent ever greening; to provide easy access to the citizens of this country to life saving drugs and to discharge their Constitutional obligation of providing good health care to it’s citizens”.

Also held that the term “efficacy” was known in the pharmaceutical field to mean “therapeutic efficacy”. Therefore rejected the contention that it was vague.

After this the next phase of Litigation started in IPAB an appellate body of patent controller.

However IPAB overturned the Patent Controller’s findings on novelty and inventive step and held that the beta-crystalline form of imatinib mesylate was new and involved an inventive step.

But refused to grant patent as the Novartis failed to establish beta-crystalline form of imatinib mesylate exhibited significantly enhanced therapeutic efficacy over imatinib mesylate, the known substance .In contravention to section 3(d) of the act.

Challenging the IPAB’s order, Novartis approached the Supreme Court directly by filing a special leave petition challenging the IPAB’s interpretation and application of section 3(d) to its patent application. Subsequently, CPAA and Natco filed cross-petitions challenging the IPAB’s findings on other issues including novelty and inventive step.

Supreme Court Observations

The main question before the Supreme Court was that

1. Whether the invention qualifies the section 3(d) of the patent act?

2. Interpretation of section 3(d) of patent act?

3. Whether the invention qualifies for the test of novelty and inventive for the alleged product?

The main contention of Novartis was that IPAB admitted that the substance is an invention in its impugned order and then applied section 3d of the act, It was contended that if it is admitted that the product is an invention then section 3d would not be applicable as section 3d is applicable to incremental inventions or discovery and not on new invention.

It was also contended that ‘efficacy‘ test is only applied on known substance but not in the case of beta-crystalline form of imatinib mesylate which is a new substance.

The approach of Supreme Court was simple in this case-:

1. Court observed that the product was a new form of substance not an entire new substance. It has always existed in the original amorphous form. The product thus qualifies for the test laid by section 3d of the patent act.

2. This section says that just discovering a new form of a substance is not enough to grant a patent, if it does not enhance its "known efficacy".

3. On interpretation of section 3d of the act, Novartis tried to argue that the physico-chemical properties of the polymorph form of the imatinib molecule, i.e. better flow properties, better thermodynamic stability and lower hygroscopicity, resulted in improved efficacy. The Supreme Court firmly rejected this contention holding that in the case of medicines, efficacy means "therapeutic efficacy" and these properties while they may be beneficial to some patients do not meet this standard. The Supreme Court also held that patent applicants must prove the increase in therapeutic efficacy based on research data in vivo in animals.

4. Simply if the invention does not qualify the test of Therapeutic efficacy the invention can’t be granted patent, Thereby the true intention of the section 3d of patent act is fulfilled by stopping the concept of ever greening in critical sectors, moreover the supreme court held the strict view that patent in the field of medicine specially in the cases of life saving drug must be granted with

full caution so that larger interest of the masses are not affected to an extent that they lose right to live.

Conclusion

The SC judgement is a big relief for those people who can’t afford the lifesaving drugs manufactured by profit guzzling big pharma giants, there is a simple sense of humanity which needs to be preserved by the human race only. I say what is the purpose of an invention when it is not affordable to the masses and cannot do good for mankind. Here we are talking about a drug which is a life saving drug priced way above the per capita income of the country. The Company in the name of patent prohibits those generic firms who are selling the generic version at an affordable rate, These Pharma big giants are corporates and claimed to have already made billion dollars and are becoming selfish thereby prohibiting people to buy the cheaper version and leaving only option to die because of the fact they are poor as if these Big pharma giants have a patent rights over their lives. I agree with the fact that patent is necessary to preserve one’s invention but that invention must be available to all at a rate reasonable to the masses then only the purpose of the invention would be fulfilled.

On the other hand the companies like Novartis, are doing just tweaking a single molecule call that whole thing as an invention and thus trying to obtain the monopoly over the lives of millions of masses.

The Supreme Court was clear that India is a developing country and cheap medicines are an essence for healthcare of 1 billion people. The Supreme Court has taken a right step and thereby prohibited the liberal approach in granting patents and thus filtering the genuine inventions with frivolous inventions. which allows these companies to make huge amount of inventions

Regarding the investment in innovation in India, This decision is a huge setback to the investors who are interested in investing in India for R&D, I say that they must be cautious that whatever they are inventing should be as per the Indian market conditions or else they will face great amount of dissatisfaction as in the cases of Novartis, Bayer etc. Indian patent environment is not like US and the EU, Rather it is more society dependent than inventor dependent which is exactly the way should be. Following the judgement Novartis had withdrew all its investments of research in India.

By-:

Nitish Banka

Questions firm usually ask in an Internship interviews?

2013-03-22T13:15:00.000+05:30

Some of the firms do conduct an Interview with the applicant here are the questions they generally put up---
5 questions to ace any Firm interview
Q1. tell me about yourself?
A. Here they check your confidence and to the point answer giving capability,here you have to brag about your law interest and how you have contributed in it.

Q2. which area of law you are interested in?
A.Here you have to express that you are interested in that area of law in which the firm practices, example if firm practices civil litigation then you have to mention that you have interest in civil litigation not corporate law:cool:

Q3. what are your hobbies?
A. Now you are entering a professional environment your hobbies must not be cricket football it must be like reading books,blogging,researching about legal developments,anything which sounds intellectual.

Q4. They sometimes ask you write an essay on any legal topic?
A. Brush up your legal knowledge read important sections and subjects specially those subjects where the firm has it's area of practice.

Q5. questions on any point you mentioned in your CV?
A. Always know what you write in your CV such that you can readily explain.

Internship Mail ID's

2013-03-22T12:53:00.001+05:30

NGOs, Research Organisations, Etc.

Alternative Law Forum, Bangalore- darshana@altlawforum.org (Form: http://bit.ly/Uzt9m8)
Software Freedom Law Center, New Delhi- mamta@softwarefreedom.in (Mamta Verma)
PUCL, New Delhi- puclnat@gmail.com (Mahi Pal Singh)
PUCL, Jaipur- kavisriv@gmail.com (Pappu Kumawat)
Transparency International India, New Delhi- tiindia.newdelhi@gmail.com
Consumer Unity Trust Society, Jaipur- hrd@cuts.org
Centre for Legislative Research and Advocacy, Delhi- info@clraindia.org (Vinod Bhanu)
India Vision Foundation, NGO, Delhi- kritya.pandey@yahoo.com
Action Aid India, Kolkata- Surajit.Neogi@actionaid.org
HRLN, Ranchi- ranchi@hrln.org (Ahmed Raza)
HRLN, Kolkata- kolkata@hrln.org
Yuva Unstoppable, Ahemedabad- rinkal@yuvaunstoppable.org
CARPED-Centre For Action Research and People’s Development, Hyderabad- idimam@gmail.com (M.Subash Chandra)
A38, (Online Law Journal)- kirthi@athirtyeight.com
Common Wealth Human Rights Initiative (CHRI), Delhi- amutha@humanrightsinitiative.org
CHRI, Kolkata: madhurima@humanrightsinitiative.org
Bar and Bench, Bangalore- careers@barandbench.com; raghul@barandbench.com; info@barandbench.com
Greenpeace, Bangalore: rachita.taneja@greenpeace.org
Centre for Disability Studies, NALSAR, Hyderabad: cdspadma@gmail.com
Navjyoti India Foundation, Gurgaon: admin@navjyoti.org.in

-

NGOs, Mumbai

Majlis, Mumbai: majlislaw@gmail.com, majlislegal@gmail.com
International Justice Mission, Mumbai- mmendonca@ijm.org (Michelle Mendonca)
CRY, Mumbai- rahat.hazrati@crymail.org (Rahat Hazrati)

Government Organisations

Delhi Legal Service Authority- shabnam.zabi07@gmail.com
National Commission for Protection of Child Rights, Delhi- ncpcr.india@gmail.com (VP Singh)
Legal Aid Services- West Bengal (NGO)- lasweb_wb@rediffmail.com ; satyadg085@gmail.com (Dr Satyajit Dasgupta)
Central Information Commission, Delhi- rtimonitoring@gmail.com (Ishani Nayyar)
NHRC, New Delhi- us_trg_nhrc@yahoo.in, Dalbir Rawat
Punjab State Human Rights Commission (PSHRC): pshrc.chd@gmail.com
Assam Human Rights Commission: secy_ahrc@nic.in

Lawyers

KK Venugopal: kkvenu@vsnl.com
Ms. Geeta Luthra, New Delhi- malik.harish01@gmail.com
Mr. V. Inbavijayan (Arbitrator), Chennai- inbavijayan@gmail.com
Jayant Bhushan- jayantbhushan@rediffmail.com
Amarjeet Singh Chandhiok- achandhiok@gmail.com (Radhakrishnan)
Vrinda Grover, Delhi- vrindagrover@gmail.com
K.T.S. Tulsi- ktstulsi@hotmail.com
Rajan Narain: rajannarain@gmail.com
Tamal Kanti Mukherjee, Kolkata (a renowned district court lawyer)- +91 – 9830042715
Protik Prokash Banerji- protik.1969@gmail.com
PP Rao: pprao@airtelmail.in
C.S. Vaidyanathan (Senior Advocate) , Supreme Court: csvaidyanathan@yahoo.com
Rajan Narain: rajan.internship@gmail.com

Companies

Legal League Consulting, New Delhi- bithika@legalleague.co.in (Bithika Anand)
Copyright Integrity International, Bangalore- roshan.gk@copyrightintegrityrity.com (Roshan Gopalakrishnan)
FICCI (IPR Division), Delhi- ficcihrd@ficci.com; sheetal.chopra@ficci.com
Lexis Nexis: tanvi.rastogi@lexisnexis.com
iPleaders, Mumbai: startup@ipleaders.in

LPOs

Pangea3- pangea3@indianinternships.com
SDD Global, Mysore- vidyad@sddglobal.com (Vidya Devaiah, Manager)

Law Firms (Delhi, Noida; NCR region)

AZB, Noida: hardeep.sachdeva@azbpartners.com; sudha.r@azbpartners.com
Enviro Legal Defence Firm (ELDF), Noida- admin@eldfindia.com; sonali@eldfindia.com
Luthra and Luthra, Delhi- CRodrigues@luthra.com (Candice Rodrigues)
JSA, Gurgaon- anjum@jsalaw.com
Anand & Anand, Noida- sangeeta@anandandanand.com (Sangeeta , HR)
FML, Noida- nivedita.dhar@foxmandallittile.com
Bhasin & Co, New Delhi- lbhasin@gmail.com
DH Law Associates- dhlaw@vsnl.com
M.N. Krishnamani, Delhi- s.saptharishi@yahoo.co.in, krishnamani.mn@gmail.com (S. Saptarishi)
Ranjan & Co., Delhi- ranjan_co76@rediffmail.com (Saud Khan)
Pinnacle Legal LLP, Chandigarh- prakriti@pinnaclelegal.in (Mrs.Prakriti Nanda)
Khaitan and Co., Delhi- hr.delhi@khaitanco.com (Mr. Vivek Tripathi)
Vaish Associates, New Delhi- vasudevan@vaishlaw.com (Vasudevan Nair)
Gopakumar Nair Associates- gopanair@gnaipr.net; gnaipr@vsnl.net
K & S Partners,Gurgaon- ghose@knspartners.com
Rajan Narain/Global Legal Associates- rajan.internship@gmail.com
Suri & Co., New Delhi- rohit.aggarwal@surico.in; info@surico.in
Singhania & Parnters, Noida- sandeep.peters@singhania.co.in
Intll Advocare, Delhi- ipcare@inttladvocare.com (Hemant Singh)
Dua Associates, Delhi- cardoza@duaassociates.com (Catherine Cardoza)
BSK Legal, Delhi- Sanjaykchadha@bsklegal.org
Majmudar & Partners- kjangalwala@majmudarindia.com
PXV Law Partners- shilpi.rajpal@pxvlaw.com
Kaden Boriss- ssk@kadenboriss.com
Tatva Legal- resume@tatvalegal.com
Knowledgentia Consultants, Delhi: info@knowledgentia.com
Malhotra & Malhotra, Chandigarh: anilmalhotra1960@gmail.com
Kasliwal Chambers, Rajasthan: kasliwalchambers@hotmail.com

Law Firms (Mumbai, Pune)

Luthra and Luthra Law Offices, Mumbai- fshaikh@luthra.com, skaicker@luthra.com (Firoz Shaikh, Sonal Kaicker)
AZB, Mumbai- ashni.roy@azbpartners.com; aditya.mehta@azbpartners.com; purnima.thacker@azbpartners.com
JSA, Bombay- bamra@jsalaw.com (Wg. Cmr. Bamra); z.shariff@jsalaw.com
DSK Legal, Mumbai- contactus@dsklegal.com
Kochhar and Co., Mumbai- malti@mumbai.kochhar.com;legal@mumbai.kochhar.com
Nishith Desai Associates, Mumbai- gowree@nishithdesai.com; nda@nishithdesai.com, internship@nishithdesai.com
Krishna and Saurastri, Mumbai- info@krishnaandsaurastri.com;krismark@vsnl.net
Bharucha & Partners, Mumbai- beena.tailor@bharucha.in (Beena Tailor)
Rajani Associates, Mumbai- prem@rajaniassociates.net ; contactus@rajaniassociates.net
Vaish Law Associates, Mumbai- bomi@vaishlaw.com; mumbai@vaishlaw.com
Little and Company,Mumbai- G.pal@littlecompany.com
Khaitan and Co., Mumbai- vinay@khaitanco.com; bejoy@khaitanco.com
Singhania & Partners, Mumbai- mum@singhania.in (Mr. Suneet Tyagi)
Gandhi and Associates, Mumbai- mitalee@gandhiassociates.com (Mr. Vishal Gandhi)
Krishan and Saurastri Associates, Mumbai- anshu@krishnaandsaurastri.com (Anshu Srivastava)
Crawford Bayley & Co, Mumbai- sanjay.asher@crawfordbayley.com (Sanjay Asher)
ARA Law, Mumbai- mumbai@aralaw.com
Advani and Co., Mumbai- hiroo.advani@advaniandco.com
Kale and Shinde Associates, Pune- info@kaleandshinde.com
Oasis Counsel and Advisory, Mumbai- hmj@oasisadvisory.com
EduLegal, Pune: mail@edulegal.in; ss@edupatners.in (Sourabh Sharma)
Solomon & Company Advocates and Solicitors, Mumbai: solomonco@slmnco.in (Blaise Cutinho)
Wadia Ghandy & Co. (Mumbai) – nikeeta.kaspale@wadiaghandy.com
S.P. Anand & Co., Pune- aiparya.adv@rediffmail.com (Mr. Indra Arya)

Law Firms (Kolkata)

Meharia & Company, Solicitors and Advocates, Kolkata- amit.m@meharia.in (Amit Meharia)
Udwadia Udeshi & Argus Partners, Kolkata: recruit@uuargus.com

Law Firms (South India)

Dua Associates, Chennai- jayaraman@duaassociates.com
K & S Partners, Bangalore- lingaraj@knspartners.com (Lingaraj Managuli, Manager,HR)
Just Law, Bangalore- sumana@justlaw.co.in; watchdog@justlaw.co.in (Sumana S. Naganand)
Indus Law, Bangalore- rama.r@induslaw.com
Singhania and Co. LLP, Bangalore- advsnigdha27@gmail.com (Snigdha Sharma)
Selvam and Selvam, Chennai- nroy@selvamandselvam.in (Mr.Navarre Roy)
Universal Legal, Chennai- kavitha.vijay@universal-legal.com (Kavita Vijay)
LegalExcel, Advocates and Solicitors, Bangalore: legalexcel@@gmail.com
Wadia Ghandy & Co. (Bangalore) – rohan.kumar@wadiaghandy.com
Jyoti Sagar Associates (Bangalore) – roselin@jsalaw.com
K Law, Bangalore- misha@klaw.in (Misha Gill)

—

* Always do a follow up after sending the Application

Law Zest-2

2013-03-17T13:06:00.000+05:30

When Police does not register a FIR?

Steps to be taken
1.Go to ACP/SP of the area and also write an E-mail first, If they don't respond then approach them, Email can be used as evidence later.

2.If step-1 fails go to district court of the area and file a criminal complaint u/s 156(3) CrPC,This section magistrate power which directs the police to lodge an FIR to initiate the investigation

Law Zest-1

2013-03-17T12:42:00.002+05:30

Bail not jail----

What will happen if a NBW is issued against the accused?
A non bailable warrant means that the accused may be arrested without any warrant and shall be produced in front of the court,the court shall not allow any kind of bail even if the offence is bailable.

steps to be followed to get out of NBW problem-:
1. Cancel the NBW by personal appearance of the accused by presenting an application for cancellation of NBW.
2. Bail application must be go along with it under sec 437 CrPC.
* However every thing depends on discretion of the court.

Do dead people have rights?Article 21 for Afzal Guru Dead Body??

2013-03-12T17:02:00.003+05:30

Do dead people have rights?

In a recently reported interesting decision the High Court of Allahabad has enunciated the legal rights of dead persons. In a writ petition filed before the High Court drawing its attention to the appaling condition in a State Government mortuary the High Court examined this jurisprudential perspective of the rights of dead persons. The backdrop for testing this intriguing question was noted by the High Court as under;

The Supreme Court has interpreted Art.21 of the Constitution of India, guarantying protection of life and personal liberty to include right to travel abroad; right to privacy; right against solitary confinement; right to legal aid; right to speedy trial; right against handcuffing; right against delayed execution; right against custodial violence; right against public handing; right to health; right for doctor's assistance; right to shelter; right to development; right of shelter; right to healthy environment; right to live with human dignity apart from other rights as fundamental right included in it to give full meaning of right to life. These rights are inherent in the persons guaranteed to by the Constitution of India included in the right to life and personal liberty of a person, which cannot be denied except in accordance with the procedure established by law. The definition clause in Art.366 of the Constitution of India does not define a person. Section 3 (42) of the General Clauses Act defines a person to include any company or association or body of individuals, whether incorporated or not. Such a person would be a legal entity that is recognised by law as subject of rights and duties. The Indian Penal Code defines a person in Section 11 to include any company or association or body of persons whether incorporated or not.A person defined in Tomlins' Law Dictionary as man or woman; also the state or condition, whereby one man differs from another. A person in law may be either natural or artificial. Natural person are such as the God of nature has formed us; an artificial are such as are created and divided by human laws for the purposes of society and government, which are called corporations or bodies politic. Natural person means and refers to living human being including a man, woman or child as individuals of human race. The reference to a statutory provisions of the word person speaking artificially excludes firm, company, partnership, society, joined stock company or association, with various manners to describe them and their rights and liabilities. The expression person, however, cannot be detached from its context. But does it include a person who has died leaving his body in the physical form to be protected by the kith or kin, friends, society or the State, if no one else can be found?.

On these observations, the High Court declared the law as under;

The law has not so far defined a person to include a dead person. It, however, has some rights, which cannot be detached from it, even if the body is denuded of the life, which together forms a human being. The Indian Succession Act, 1923 provides for execution of the will of a person, after he has died. A person also has a right to protection of his dead body, to be mutilated, wasted or its organs to be taken out, except by the consent of the person, when he was alive, or on the consent of his kith and kin or the State if body is unclaimed, under the Transplantation of Human Organs Act, 1994. The word person may not be construed narrowly so as to exclude the dead body of a human being, who was the person, when alive, which is not claimed and which is required to be cremated or buried with dignity in accordance with the religious beliefs of the person, if such beliefs can be found by establishing his identity. The State is obliged in law to maintain sanitation to remove the body, which becomes dangerous, for the safety of the other living being for its adequate disposal. An unclaimed dead body has to be claimed by the State both for the purposes of investigation of the crime, if it was committed on the human being, who did not die naturally for scientific investigation or for research and medical education. The State is obliged in law both under its powers as a welfare state, and to protect the rights of such person in its extended meaning under Art.21 of the Constitution of India for disposal of a dead body for a decent and dignified cremation/ burial in accordance with the religion beliefs the man kept or professed.

...

We thus find that the word and expression 'person' in Art.21, would include a dead person in a limited sense and that his rights to his life which includes his right to live with human dignity, to have an extended meaning to treat his dead body with respect, which he would have deserved, had he been alive subject to his tradition, culture and the religion, which he professed. The State must respect a dead person by allowing the body of person to be treated with dignity and unless it is required for the purposes of establishing a crime to ascertain the cause of death and be subjected to postmortem or for any scientific investigation, medical education or to save the life of another person in accordance with law, the preservation of the dead body and its disposal in accordance with human dignity.

The Importance of IPR in the Business World

2013-03-08T23:55:00.000+05:30

The Businesses in 21^st century is based on knowledge transfer, such that in order to survive in this competitive environment, The businesses must offer innovative ideas to their clients. So in order to pursue these ideas, the companies have to setup their own research and development centers in order to cater their business needs.

But without sharing those ideas the Industry will not progress, If the idea is confined to one particular firm in an industry, The industry as a whole would suffer. There arises a need for Knowledge transfer within the Industry. Now where there is a transfer there is an interest of the person who is transferring his knowledge, Now days knowledge is treated as an asset just like any other property, there are laws to protect the property like in India we have Transfer of property act, if we are treating knowledge as an asset then we need to insure that it is not infringed and so there comes the law for it i.e. IPR. Now there is a link which is formed between IPR and the business as the Ideas of the business and its conduct are also like assets they must be protected by the law Like Registration of property, there is provision of registration of knowledge named as patent.

If the businesses are transferring their ideas or innovation to other businesses then it should be like selling any other asset, the business must be compensated adequately, and in case of infringement the law must have teeth to penalize the inf-ringer But law must treat everyone equal and should be made for the benefit of the mankind, Now in order to remove any monopolistic tactics of an inventor there are provisions in this IPR law itself, which compulsorily make the inventor or innovator to transfer the knowledge of coarse with compensation for the benefit of the mankind, Like in the case of bayers v Natco pharma, where a compulsory license was given to the Natco pharma as the inventor was holding a life saving drug.

In short knowledge transfer in businesses can only happen if there is IPR and if IPR is not there then inventor will confine his invention to himself, Also to protect the interests of the inventors and for the progress of the society, industry IPR is an essential element.

Why Amend IT Act

2012-12-04T22:19:00.000+05:30

The IT act came into existence to protect the users from the crime related to electronic space, we know that India is a IT hub and a largest democratic country, That’s why we need IT laws .But Laws don’t keep pace with technology.

And at one point of time the technology surpasses and comes above the law, when this happens then the need to amend the law arises. This is what happened with the 66A IT act.

Let us first look at it what is 66A:

*[66A. Punishment for sending offensive messages through communication service, etc..-

Any person who sends, by means of a computer resource or a communication device,-

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation: For the purposes of this section, terms "Electronic mail" and "Electronic Mail Message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.

The analysis of the current IT act gives an Idea that the 66A IT act is vague it talks about the information but how it gets transmitted to other person this is not mentioned as in the year 2000 there was only one way to transmit information i.e. through E-mails or may through few websites but the concept of blogging or “free speech” was not there at that time. Because information through speech is different than other form of information. For example-: we have Article 14 for freedom of speech but for intimidating someone with information passed through messages does not come under freedom of speech.

The 66A IT act certainly needs to be amended as IT act was passed in year 2000 at that time there was no concept of social media, the 66A act was intended to cover only email messages ,the messages of email cannot be compared with that of post on social media. The email messages are personal in nature and is generally intended to single person, But in social media you have an audience and the case of posting on the wall certainly comes under freedom of speech, so the posting on the facebook wall must be equated with article 14, and same limitation must be applied to it rather than treating it as a message. So with current technological advancement there certainly need to amend the IT laws.

By: Nitish Banka

Dowry Death and Indian Families.

2012-11-13T16:51:00.001+05:30

Dowry Death and Indian Families.

In today Indian society dowry is like a norm, we see that people spend lavishly on marriages. The root cause of the problem starts from here, The parents of the bride fulfil all the wishes of groom’s family like spending lavishly on wedding, gifting cars etc. when the bride reaches her matrimonial home, The selfishness of groom’s family grows .Now they demand more things like household items, property etc. Not in the condition to fulfil the infinite demands of groom family, The Groom family starts to harass the newly wedded wife so much and so grave that she thinks it’s better to end the life than to live it. In the end the lavishly solemnized wedding ends into tragic death of the bride. The cause of death is not natural that is for sure, it may be due to poison, suicide, even hanging on the ceiling, burns.

This the most common story of all the dowry related deaths .For this common story there must be a common Law on different footing as that of murder and culpable homicide as the cases of murder and culpable homicide demands much greater evidence and are much complicated. The dowry death is covered in sec 304 B IPC which is -:

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called" dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.- For the purposes of this sub- section," dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961 ).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Basic Ingredients-:

1. There must be a death of the woman.

2. The death of the woman must be in un natural circumstances.

3. And there must be evidence that she was subjected to cruelty due to demand of dowry.

So there is a stark difference between section 299/300 and 304B as 299/300 has much wider scope and covers many motives, But sec 304B the main motive is Dowry due to which cruelty and harassment is performed on the bride and due to which she died.

Evidence in 304 B-:

For the protection of harassed party the evidence act comes to rescue for a crime to come under the 4 corners of evidence act, The material evidence is cruelty and harassment on the bride.

113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.

Now due to this section the burden of proof shifts to defendants, now they have to show that they have not done cruelty and harassment in order to evade this section.

Unlike in murder cases there is always presumption of innocence, The section of murder has to pass through quite stringent tests than that of dowry death. In dowry related death those people who are involved in cruelty(relatives) are held to be liable for the dowry death.

U.S. to Expand Its Definition of Rape in Statistics

2012-11-12T22:33:00.003+05:30

REPRINTS

WASHINGTON — The federal government is changing its longstanding definition of “forcible rape” in compiling national crime statistics — expanding both the definition of victims, to include males, and the types of sexual assault that will be counted in the Federal Bureau of Investigation’s Uniform Crime Report.

The new definition, which has been in the works for several months and was formally announced by the Obama administration on Friday, will replace a narrower definition of “forcible rape” with one that includes, among other things, forcible oral or anal penetration. The narrower definition, which is limited to vaginal penetration, has been used since the 1920s in tracking how often such crimes are reported around the country.

Victim advocacy groups have long criticized the old definition as outdated, saying it left out many crimes that were prosecuted as rape under state laws but that were not reflected in national statistics. Last year, an F.B.I. advisory committee of law enforcement agencies agreed to a Justice Department request to update the definition.

“It’s about more than a definition,” Lynn Rosenthal, the White House adviser on violence against women, said in a conference call with reporters to discuss the change. “It’s a change of our understanding of rape and how seriously we take it as a country.”

The old definition — “the carnal knowledge of a female, forcibly and against her will” — covered only forcible penetration of a woman’s vagina by a penis, and excluded many other kinds of sexual assaults that count as rape under more modern definitions.

For example, the outdated definition did not count forcible anal or oral penetration, the penetration of the vagina or anus with an object or other body part, the rape of a man, or the rape of a woman by another woman.

It also did not cover nonconsensual sex that does not involve physical force — like the rape of people who are unable to grant consent because they are drugged, very drunk or younger than the age of statutory consent in their state, a number that varies across the country.

The new definition, which was drafted with input from local and state law enforcement agencies based on more modernized rape laws, encompasses a broader range of such circumstances. Specifically, it covers the “penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

Many states have long since adopted a more expansive definition of rapes in their criminal laws, and officials said that local police departments had been breaking down their numbers and sending only a fraction of the reported rapes to the F.B.I. to comply with outdated federal standards.

For example, the New York Police Department reported 1,369 rapes in 2010, but only 1,036 were entered in the federal figures. However, the police department in Chicago, which had nearly 1,400 reported sexual assaults in 2010, refused to discard cases that did not fit the narrower federal definition when reporting its crime statistics; as a result, the F.B.I.’s uniform crime report — which reported 84,767 forcible rapes that year — did not include any rapes from that city.

The question of what kinds of sexual assault are properly categorized as “rape” recently received greater scrutiny after the high-profile arrest in November of Jerry Sandusky, a former assistant football coach at Pennsylvania State University who was charged with sexually abusing several boys across a 15-year period.

Reported acts like some that Mr. Sandusky has been accused of — including allegedlysubjecting a 10-year-old boy to anal penetration — would not be counted in national rape statistics under the old definition, but will be counted in them under the new one. The change to the “rape” definition was already in process before the Sandusky case came to light, however.

Victim advocacy groups have called for years for the old definition to be revised, and in more recent years several prominent leaders of law enforcement agencies had joined that chorus. The movement gained force last summer when elements of the Obama administration — including the office of Vice President Joseph R. Biden Jr., who as a senator had been a chief sponsor of the Violence Against Women Act — proposed making a formal request to broaden the definition. The change was approved by Robert S. Mueller III, the director of the Federal Bureau of Investigation, and announced by Attorney General Eric H. Holder Jr.

The revision to the definition of rape is only for the purposes of deciding what kinds of incidents will be included in the “rape” category of the F.B.I.’s compilation of national crime statistics. It does not change the underlying criminal codes governing the prosecution of sexual assaults.

The F.B.I. said it expected that it would take several years for all of the 18,000 state and local law enforcement agencies around the country that voluntarily contribute data to its Uniform Crime Report to adjust their reporting to include the wider definition of rape, and that as they do so, the number of reported rapes is likely to rise significantly for several years running.

In the meantime, the bureau said it would ask local police departments to continue to break out their statistics for the number of rapes under the old definition so that it can still make a meaningful comparison in the trend of such crime rates when compared with previous years.

A version of this article appeared in print

Condonation of Delay in case Appeals

2012-10-31T22:24:00.002+05:30

Condonation of Delay in case Appeals

Section 5 of the Limitation deals with condonation of delay in case of appeal. Since the limitation period for appeals is very short, this section is then introduced to meet the end of justice such that the purpose of justice is not defeated merely because there is “sufficient cause” is present due to which an appeal was not preferred. This section extends the limitation period.

The word “”sufficient cause” is an important phrase in this section. Since the section is not a matter of right for the party who pleads the condonation, but it depends on the discretion of the court.The court must be satisfied that the delay is caused due to a genuine reason. It is sufficiency of the cause which counts, and not length of delay - Expression "sufficient cause" should receive a liberal construction - As regards delay on the part of State, certain amount of latitude is not impermissible - Expression "sufficient cause" should be considered with pragmatism in justice oriented approach rather than technical detection of sufficient cause for explaining every day's delay - Matter remitted to High Court to decide the criminal revision on merits - Suggestions made to prevent delay in State litigation - Administration of justice – [

STATE (NCT OF DELHI) VS AHMED JAAN. AUGUST 12, 2008]

Now the question arises what can be the “sufficient cause” which the court accepts-:

1. Illness it is the sufficient cause when it is proved without the reasonable cause that the appellant was not able to file an appeal.

2. Imprisonment-The imprisonment of the appellant can be a sufficient cause.

3. Ignorance of law can also be a one of the reason but it should be bonafide.

4. Mistake of fact-It should be real and unintentional.

5. Delay in obtaining copies of judgement can be sufficient cause also this reason is also covered in section 12.

6. Poverty, Infancy, Pardah

7. Mistake of Counsel-mistake by counsel which is not negligence.

But to enjoy the benefit of section 5 There should be no negligence due to inaction of the party is a prerequisite, also length of delay is not a matter of concern but reasonable explanation why the delay has occurred is the subject matter of this section.

In the end the court prefer liberal approach in favour of justice and favour only reasonable excuses to condone any delay in filing an appeal .However the court must be convinced beyond reasonable doubt that the delay was genuine and it must be condoned in favour of justice. Also there should be absence of negligence in order to make the cause reasonable.

Abatement of case

2012-10-11T19:05:00.001+05:30

Abatement of case

Abatement-:Abatement means “to put an end”

Criminal Suits

Death of the accused Person

When the accused dies during the trial it automatically abets the suit However the police completes its investigation as per 173 CrPC and send their report to court.

Death of accused during trial - Proceedings will abate - Legal heirs cannot be prosecuted. (Sham LalVs Raj Kumar Aggarwal) 2002(2) CIVIL COURT CASES 370 (P&H) : 2002(2) CRIMINAL COURT CASES 505 (P&H) : 2002 (2) ISJ (BANKING) 0083

Death of Complainant

The Provisions of CRPC 256 shall apply if there is Death of the complainant which is -:

(1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.

In the cases of Appeal if accused dies but an appeal against his conviction is Pending

Section 394 Crpc

(1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused.

(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant:

Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any if his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.

Explanation. In this section, "near relative" means a parent, spouse, lineal descendant, brother or sister.

ABATEMENT IN CASE OF CIVIL SUITS

In civil suits the abetment rule is simple if any Right to Sue is there then there is no abatement then legal representative on application to the court is made(within limitation period) party to the suit. else the suit abates in favour of opposite deceased party.

ORDER XXII. DEATH, MARRIAGE AND INSOLVENCY OR PARTIES

1. No abatement by party's death if right to sue survives

The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.

2. Procedure where one of several plaintiffs or defendants dies and right to sue survives

Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to the effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.

Cases in which plaintiff dies but right to sue survives but whom to sue?

3. Procedure in case of death of one of several plaintiffs or of sole plaintiff

(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to the sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.

(2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

4. Procedure in case of death of one of several defendants or of sole defendant

(1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant.

¹[(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant not withstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.

(5) Where-

(a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963) and the suit has, in consequence, abated, and

(b) the plaintiff applies after the expiry of the period specified therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act,

the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved.]

1. Ins. by Act No. 104 of 1976, sec. 73 (w.e.f. 1-2-1977).

¹[4A. Procedure where there is no legal representative

(1) If, in any suit, it shall appear to the Court that any party who has died during the pendency of the suit has no legal representative, the Court may, on the application of any party to the suit, proceed in the absence of a person representing the estate of the deceased person, or may by order appoint the Administrator-General, or an officer of the Court or such other person as it thinks fit to represent the estate of the deceased person for the purpose of the suit; and any judgment or order subsequently given or made in the suit shall bind the estate of the deceased person to the same extent as he would have been bound if a personal representative of the deceased person had been a party to the suit.

(2) Before making an order under this rule, the Court-

(a) may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate of the deceased person as it thinks fit; and

(b) shall ascertain that the person proposed to be appointed to represent the estate of the deceased person is willing to be so appointed and has no interest adverse to that of the deceased person.]

1. Ins. by Act No. 104 of 1976, sec. 72 (w.e.f. 1-2-1977).

5. Determination of question as to legal representative.

Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court:

¹[Provided that where such question arises before an Appellate Court, that Court may, before determining the question, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question.]

1. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

6. No abatement by reason of death after hearing

Nothwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place.

7. Suit not abated by marriage of female party

(1) The marriage of a female plaintiff or defendant shall not cause the suit to abate, but the suit may notwithstanding be proceeded with to judgment, and, where the decree is against a female defendant, it may be executed against her alone.

(2) Where the husband is by law liable for the debts of his wife, the decree may, with the permission of the Court, be executed against the husband also; and in case of judgment for the wife, execution of the decree may, with such permission, be issued upon the application of the husband, where the husband is by law entitled to the subject matter of the decree.

8. When plaintiffs insolvency bars suit

(1) The insolvency of a plaintiff in any suit which the assignee or receiver might maintain for the benefit of his creditors, shall not cause the suit to abate, unless such assignee or receiver declines to continue the suit or (unless for any special reason the Court otherwise directs) to give security for the costs thereof within such time as the Court may direct.

(2) Procedure where assignee fails to continue suit, or give security-Where the assignee or receiver neglects or refuses to continue the suit and to give such security within the time so ordered, the defendant may apply for the dismissal of the suit on the ground of the plaintiff s insolvency, and the Court may make an order dismissing the suit and awarding to the defendant the costs which he has insured in defending the same to be proved as a debt against the plaintiffs estate.

9. Effect of abatement or dismissal

(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

(3) The provisions of section 5 of the ¹[Indian Limitation Act, 1877 (15 of 1877)] shall apply to applications under sub-rule (2).

²[Explanation-Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order]

1. See now the Limitation Act, 1963 (36 of 1963), Ss. 4 and 5.

2. Ins. by Act No. 104 of 1976 (w.e.f. 1-2-1977).

10. Procedure in case of assignment before final order in suit

(1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.

(2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).

¹[10A. Duty of pleader to communicate to Court death of a party.

Wherever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall there upon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist.]

1. Ins. by Act No. 104 of 1976, sec. 73 (w.e.f. 1-2-1977).

11. Application of Order to appeals.

In the application of this Order to appeals, so far as may be, the word "plaintiff shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal.

12. Application of Order to proceedings.

Nothing in rules 3, 4 and 8 shall apply to proceedings in executive of a decree or order.

No offence u/s 138 of N.I. Act is committed for dishonour of cheque given as security deposit

2012-10-09T16:47:00.002+05:30

Judgment IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Joseph Vilangadan. v. Phenomenal Health Care Services Ltd. & Anr. CRIMINAL WRIT PETITION NO.2243 OF 2009 CORAM : J.H.Bhatia, J. DATE : 20th July, 2010 1 Rule. Rule made returnable forthwith. Heard the learned counsel for the parties. 2 There is no dispute that the respondent no.1/complainant and M/s. Encon Engineering and Contractors (Hereinafter referred to as ‘Contractors’) had entered into an agreement on 28th January, 2005 whereby Contractors had undertaken to carry out certain works for the respondent. As per the said contract, Contractors deposited the sum of Rs. 10 lacs by undated cheque no.027840 drawn against South Indian Bank Ltd., Palarivattom Branch, Cochin branch with the respondent no.1 as refundable security deposit for the due performance of the agreement. The said undated cheque was in custody of the respondent no.1 and it appears that the respondent no.1 filled in the date on undated cheque as “4.6.2008″. The cheque was presented to the drawee bank through the banker of the respondent no.1. Cheque was returned unpaid on the ground that the drawer had stopped the payment. Therefore, notice was issued by the respondent to the contractor as well as it’s managing partner for the payment of the cheque amount . In spite of notice, payment was not made. Therefore, the respondent no.1 filed complaint under Section 138 of the Negotiable Instruments Act, in the Court of Metropolitan Magistrate 44th Court, Andheri. Process was issued against the accused, who is the petitioner before this Court. Petitioner/accused challenged the issuance of process by filing revision application no.789/2009 before the Sessions Court, Gr. Bombay. By the impugned order dated 8th June, 2009, the learned Additional Sessions Judge rejected the revision application. Hence this petition. 3. At the outset it may be stated that before the revisional Court, petitioner had taken several grounds challenging the issuance of process. However, during the arguments before this Court, the learned counsel for the petitioner restricted the challenge only to one point. According to him, cheque was not issued in discharge of any debt or liability and as the cheque was issued as security deposit, provisions of Section 138 are not applicable. The learned counsel placed reliance upon several authorities in support of his contention. The learned counsel for the respondent/complainant contended that the said cheque was deposited in lieu of the amount of Rs. 10 lacs which would be otherwise required to be deposited as security by the contractor with the respondent for due performance of the contact and, therefore, it must be held that the cheque was issued in discharge of “other liability.” 4. Section 138 of the Negotiable Instruments Act provides that where any cheque was drawn by a person on account maintained by him with the banker for the payment of any amount of money to another person for discharge in whole or in part of any debt or other liability and it was returned by the drawee bank unpaid either because the amount of money in the account is insufficient or it exceeds the amount arranged to be paid, such person shall be deemed to have been committed offence and shall be liable to punishment with imprisonment or with fine or with both. Of course, before the offence is committed, several other conditions are required to be fulfilled. We are not concerned with the same for the decision of the present matter. mportant ingredient for the offence punishable under Section 138 is that cheque must have been issued for the discharge in whole or in part of any debt or other liability. If the cheque is not issued for the discharge of any debt or other liability, Section 138 can not be invoked. It is now well settled legal position that if the cheque is issued only as security for performance of certain contract or an agreement and not towards the discharge of any debt or other liability, offence punishable under section 138 is not made out. In Travel Force v. Mohan N. Bhave and Another 2007 Mh.L.J.3339 , the cheque in question was issued by the accused for investment in fixed deposit and it was accepted by the complainant as fixed deposit in the scheme. As the cheque was dishonoured, the complaint under Section 138 of the Negotiable Instruments Act was filed. Process was issued by the Magistrate. However, the Sessions Court set aside the order issuing the process holding that the cheque was not issued for discharge in whole or in part of any debt or other liability and, therefore, presumption under Section 139 could not arise in favour of the complainant. Revision application filed by the complainant was rejected by this High Court holding that when the cheque was issued only as a deposit and not in discharge of any debt or liability, offence under Section 138 is not made out. 5. In M.S.Narayana Menon @ Mani v. State of Kerala and Another (2006) 6 SCC 39, accused and the complainant were brokers working in the stock exchange and the complainant was to enter into certain transactions on behalf of the accused. The cheque was issued for an amount of Rs. 2,95,033/by the accused in favour of the complainant. On presentation, the cheque was dishonoured. After notice also the payment was not made. In the case under Section 138 plea of the accused was that the complainant was in dire need of financial assistance and the said cheque was issued so as to enable him to tide over his financial difficulties and not in discharge of any debt or liability payable to the complainant. During the trial, it was revealed that there was discrepancy of more than Rs. 14 lacs in the account maintained by the complainant. Accused was convicted by the trial Court but was acquitted by the appellate Court . High Court set aside the acquittal and convicted the accused. Accused went to the Supreme Court. After going to the facts and circumstances, the Supreme Court observed thus in paragraph 52: “52. We, in the facts and circumstances of this case, need not go into the question as to whether even if the prosecution fails to prove that a large portion of the amount claimed to be a part of the debt was not owing and due to the complainant by the accused and only because he has issued a cheque for a higher amount, he would be convicted if it is held that existence of debt in respect of large part of the said amount has not been proved. The appellants clearly said that nothing is due and the cheque was issued by way of security. The said defence has been accepted as probable. If the defence is acceptable as probable the cheque therefore cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of the Act.” From these observations, it appears that if the cheque was not issued for discharge of any debt or liability but as a security only, offence is not made out under Section 138. 6. Coming to the facts of the present case from the complaint as well as particulars of the agreement executed on 28.1.2005, it is clear that cheque was issued as a security deposit at the time of entering into contract for due performance of the terms of the contract. Agreement shows that the contractor had deposited the undated cheque no.027840 with the respondent as refundable security deposit for due performance of the agreement. Even the allegations in the complaint are not different. Admittedly, when this agreement was entered into, no debt or liability was in existence and under that agreement, parties had entered into a contract whereby contractor was to perform certain works for the respondent. Naturally, as per the terms of the contract and the allegations made in the complaint if the contractor would fail to perform the agreement, respondent could encash the cheque and recover an amount of security deposit. 7. The learned counsel for the respondents vehemently contended that the contractor was to perform so many works and in respect of some works, his rates were higher and in respect of some other, rates were lower than the other bidders. He was also advanced certain amount for carrying out certain works from time to time. Contractor had completed works in which higher rates were given to him but he ignored to carry out those works where the rates were less and thereafter he ignored to complete those particular works resulting into the disputes between the parties. Admittedly, the disputes had occurred in the year 2006 and the contractor filed a suit against the respondent in the year 2006. Not only was this, admittedly, matter also referred to arbitrator in respect of said disputes. The learned counsel for the respondents pointed out that undated cheque was lying with the respondent since 28.1.2005. However, for the first time a date “4.6.2008” was put on him and then cheque was presented for encashment, which was returned unpaid with endorsement “payment was stopped”. It shows that date was put on the cheque by the respondents long after disputes had arisen between the parties. Proviso (a) to Section 138 requires that the cheque should be presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. In the present case though the cheque was drawn and handed over on 28.1.2005, date was not put on it. If the date would have been put, cheque would have been valid for six months from 28.1.2005. However, the respondent put the date 4.6.2008, i.e., almost three years after the period of cheque was over. Thus, the cheque was not presented to the drawee bank within six months from the date when it was actually drawn. Anyhow, it is not necessary to enter into that controversy for the purpose of deciding the present petition. Fact remains that the cheque was issued towards the security deposit and not towards the discharge of any debt or liability. 8 . The learned counsel for the respondent contends that it is not necessary that the cheque should be issued for discharge of a debt.According to him, it may be issued towards the discharge of other liability also and in support of this, he placed reliance on ICDS Limited v. Beena Shabeer and Another (2002) 6 SCC 426. In that case, husband of the accused/respondent no.1 had obtained a car under hire purchase agreement from the complainant. The accused was a guarantor for payment of the amount by her husband and towards the part payment of the said transaction, she had issued a cheque in favour of the complainant. Cheque was dishonoured and the payment was not made in spite of the notice. High Court quashed the complaint on the ground that cheque from the guarantor could not be said to have been issued for the purpose of discharge of any debt or liability. However, the Supreme Court set aside the order of the High Court. The Supreme Court observed thus in paragraphs 10 and 11. “10. The language, however, has been rather specific as regards the intent of the legislature. The commencement of the section stands with the words “Where any cheque”. The above noted three words are of extreme significance, in particular, by reason of the user of the word “any”the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment. 11. The issue as regards the coextensive liability of the guarantor and the principal debtor, in our view, is totally out of the purview of Section 138 of the Act, neither the same calls for any discussion therein. The language of the statute depicts the intent of the lawmakers to the effect that wherever there is a default on the part of one in favour of another and in the event a cheque is issued in discharge of any debt or other liability there cannot be any restriction or embargo in the matter of application of the provisions of Section 138 of the Act. “Any cheque” and “other liability” are the two key expressions which stand as clarifying the legislative intent so as to bring the factual context within the ambit of the provisions of the statute. Any contra interpretation would defeat the intent of the legislature. The High Court, it seems, got carried away by the issue of guarantee and guarantor’s liability and thus has overlooked the true intent and purport of Section 138 of the Act. The judgments recorded in the order of the High Court do not have any relevance in the contextual facts and the same thus do not lend any assistance to the contentions raised by the respondents.” Supreme Court in ICDS Ltd. v. Beena Shabeer and Another (2002) Supreme Court Cases 426 considered provisions of the law and held that when the cheque is issued by the guarantor in discharge of such other liability, provisions of section 138 are applicable. Infact, section 138 itself specifically provides that the cheque should have been issued by a person for the discharge of any debt or other liability. The guarantor may not be himself a debtor but he guarantees the repayment of the loan taken by the principal debtor. By giving such a guarantee, the guarantor incurs a liability towards the creditor and for the discharge of that liability, if he issues cheque, he will be covered by the provisions of Section 138. As the cheque was issued for the discharge of “other liability” case would be covered by Section 138. 9 In the present case, there was no liability or debt towards the complainant/respondent when the cheque was issued by the contractor. From the language of the agreement as well as allegations made in the complaint, it is clear that said cheque was issued as security deposit and not towards the discharge of any debt or lone. The learned counsel for the respondent contended that in M.S.Narayana Menon @ Mani (Supra), evidence was led by the parties and on the basis of evidence, the Supreme Court came to conclusion that the cheque was issued as a security and, therefore, Section 138 would not be applicable. According to the learned counsel, in this case only process has been issued and the parties are yet to go to the trial and, therefore, said authority in M.S. Narayana Menon @ Mani (Supra) would not be applicable. It would be difficult to accept this contention. Ratio in M.S.Narayana Menon @ Mani (Supra), is applicable to the facts of the present case. When on the face of the complaint itself, it is clear that the cheque was issued as a security deposit and not towards the discharge of any debt or other liability, case under Section 138 is not made out. When the complaint itself does not make out criminal case to issue the process, to force the accused to undergo trial would be clear misuse of the process of the Court and this should not be allowed. The Additional Sessions Judge while rejecting the revision application dealt with the liability of the contractor on the basis of terms of the contract and the cheque. The learned counsel for the respondent also contended that the matter was referred to arbitrator and arbitrator also held that the contractor is liable to pay on the basis of that cheque. As far as civil liability of the contractor/petitioner is concerned, it is not necessary to look into the same in present matter. Suit was filed in the year 2006 and the arbitrator was also appointed in 2008, therefore, civil liability of the parties against each other can be looked into the said litigation or arbitration proceedings. In the present matter, we have only to see whether the offence under Section 138 of the Negotiable Instruments Act is made out or not. The learned Revisional Court did not address to this question properly before rejecting revision application. 10 In view of the facts and circumstances, I find that no case to issue process under Section 138 was made out and, therefore, process issued by the trial Court is liable to be quashed. 11 For the aforesaid reasons, petition is allowed. The order passed by the learned Metropolitan Magistrate to issue process under Section 138 is hereby quashed. Rule made absolute accordingly.

Whether 2nd FIR maintainable

2012-09-26T21:33:00.002+05:30

While on one hand the manner of recording of First Information Report (FIR) and the commission of offences revealing from FIR are take with caution and circumspection, the Supreme Court in a recent decision (Babubhai v. State of Gujarat) has approved the recording of more than one FIR in respect of same acts committed on the ground that the police is required to register the FIR on the basis of the information provided and that "where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible".

Making a reference to the earlier decisions of the Court on the issue, the Bench declared the position of law in the following terms;

12. In Ram Lal Narang Vs. Om Prakash Narang & Anr. AIR 1979 SC 1791, this Court considered a case wherein two FIRs had been lodged. The first one formed part of a subsequent larger conspiracy which came to the light on receipt of fresh information. Some of the conspirators were common in both the FIRs and the object of conspiracy in both the cases was not the same. This Court while considering the question as to whether investigation and further proceedings on the basis of both the FIRs was permissible held that no straitjacket formula can be laid down in this regard. The only test whether two FIRs can be permitted to exist was whether the two conspiracies were identical or not. After considering the facts of the said case, the Court came to the conclusion that both conspiracies were not identical. Therefore, lodging of two FIRs was held to be permissible.

13. In T.T. Antony Vs. State of Kerala & Ors. (2001) 6 SCC 181, this Court dealt with a case wherein in respect of the same cognizable offence and same occurrence two FIRs had been lodged and the Court held that there can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences. The investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the Police Station diary by the Officer In-charge under Section 158 of the Code of Criminal Procedure, 1973 (hereinafter called the Cr.P.C.) and all other subsequent information would be covered by Section 162 Cr.P.C. for the reason that it is the duty of the Investigating Officer not merely to investigate the cognizable offence report in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and the Investigating Officer has to file one or more reports under Section 173 Cr.P.C. Even after submission of the report under Section 173(2) Cr.P.C., if the Investigating Officer comes across any further information pertaining to the same incident, he can make further investigation, but it is desirable that he must take the leave of the court and forward the further evidence, if any, with further report or reports under Section 173(8) Cr.P.C. In case the officer receives more than one piece of information in respect of the same incident involving one or more than one cognizable offences such information cannot properly be treated as an FIR as it would, in effect, be a second FIR and the same is not in conformity with the scheme of the Cr.P.C. The Court further observed as under:

“A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate……. However, the sweeping power of investigation does not warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution.”

14. In Upkar Singh Vs. Ved Prakash & Ors. (2004) 13 SCC 292, this Court considered the judgment in T.T. Antony (supra) and explained that the judgment in the said case does not exclude the registration of a complaint in the nature of counter claim from the purview of the court. What had been laid down by this Court in the aforesaid case is that any further complaint by the same complainant against the same accused, subsequent to the registration of a case, is prohibited under the Cr.P.C. because an investigation in this regard would have already started and further the complaint against the same accused will amount to an improvement on the facts mentioned in the original complaint, hence, will be prohibited under section 162 Cr.P.C. However, this rule will not apply to a counter claim by the accused in the first complaint or on his behalf alleging a different version of the said incident. Thus, in case, there are rival versions in respect of the same episode, the Investigating Agency would take the same on two different FIRs and investigation can be carried under both of them by the same investigating agency and thus, filing an FIR pertaining to a counter claim in respect of the same incident having a different version of events, is permissible.

15. In Rameshchandra Nandlal Parikh Vs. State of Gujarat & Anr. (2006) 1 SCC 732, this Court reconsidered the earlier judgment including T.T. Antony (supra) and held that in case the FIRs are not in respect of the same cognizable offence or the same occurrence giving rise to one or more cognizable offences nor are they alleged to have been committed in the course of the same transaction or the same occurrence as the one alleged in the First FIR, there is no prohibition in accepting the second FIR.

16. In Nirmal Singh Kahlon Vs. State of Punjab & Ors. (2009) 1 SCC 441, this Court considered a case where an FIR had already been lodged on 14.6.2002 in respect of the offences committed by individuals. Subsequently, the matter was handed over to the Central Bureau of Investigation (CBI), which during investigation collected huge amount of material and also recorded statements of large number of persons and the CBI came to the conclusion that a scam was involved in the selection process of Panchayat Secretaries. The second FIR was lodged by the CBI. This Court after appreciating the evidence, came to the conclusion that matter investigated by the CBI dealt with a larger conspiracy. Therefore, this investigation has been on a much wider canvass and held that second FIR was permissible and required to be investigated. The Court held as under:

“The second FIR, in our opinion, would be maintainable not only because there were different versions but when new discovery is made on factual foundations. Discoveries may be made by the police authorities at a subsequent stage. Discovery about a larger conspiracy can also surface in another proceeding, as for example, in a case of this nature. If the police authorities did not make a fair investigation and left out conspiracy aspect of the matter from the purview of its investigation, in our opinion, as and when the same surfaced, it was open to the State and/or the High Court to direct investigation in respect of an offence which is distinct and separate from the one for which the FIR had already been lodged.”

17. Thus, in view of the above, the law on the subject emerges to the effect that an FIR under Section 154 Cr.P.C. is a very important document. It is the first information of a cognizable offence recorded by the Officer In-Charge of the Police Station. It sets the machinery of criminal law in motion and marks the commencement of the investigation which ends with the formation of an opinion under Section 169 or 170 Cr.P.C., as the case may be, and forwarding of a police report under Section 173 Cr.P.C. Thus, it is quite possible that more than one piece of information be given to the Police Officer Incharge of the Police Station in respect of the same incident involving one or more than one cognizable offences. In such a case, he need not enter each piece of information in the Diary. All other information given orally or in writing after the commencement of the investigation into the facts mentioned in the First Information Report will be statements falling under Section 162 Cr.P.C. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is affirmative, the second FIR is liable to be quashed. However, in case, the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counter claim, investigation on both the FIRs has to be conducted.

Order 9 rule 8,9 CPC

2012-09-26T20:34:00.001+05:30

8. Procedure where defendant only appears

Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

9. Decree against plaintiff by default bars fresh suit

(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall appoint a day for proceeding with suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

Supreme Court: Can't sue lawyers for wrong advice

2012-09-22T22:22:00.001+05:30

NEW DELHI: At a time when it is the norm to seek legal opinion prior to taking a decision, theSupreme Court has come to the rescue oflawyers by ruling that they cannot be prosecuted for rendering wrong advice if there is no link between them and perpetrators of a fraud or offence.

But the court said the advocate's opinion must be bona fide as all legal practitioners owe "an unremitting loyalty to the interests of a client and it is the lawyer's responsibility to act in a manner that would best advance the interest of the client".

A bench of Justices P Sathasivam and Ranjan Gogoi gave this judgment while dismissing the CBI's appeal against an Andhra Pradesh High Court order quashing criminal proceedings against an advocate for rendering legal opinion on genuineness of title deeds for sanction of loans, which resulted in a multi-crore loan fraud involving a nationalized bank.

Writing the judgment for the bench, Justice Sathasivam said, "Merely because his opinion may not be acceptable, he cannot be mulcted (punished) with criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence but cannot be charged for the offence under Section 420 (cheating) and 109 (abetment) along with other conspirators without proper and acceptable link between them."

The court drew a parallel between lawyers and other professionals like doctors and said none of them could guarantee success - either in litigation or in treatment.

"A lawyer does not tell his client that he shall win the case in all circumstances. Likewise, a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on," the bench said.

"The only assurance which such a professional can give or can be given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is what the person approaching the professional can expect," the court said.

"Judged by this standard, a professional may be held liable for negligence on one of the two things - either he did not possess the requisite skill which he professed to have possessed or he did not exercise, with reasonable competence in the given case, the skill which he possessed," it added.

Quoting an earlier judgment, the court said it was not necessary for every professional to possess the highest level of expertise in that branch which he practiced. It quoted another judgment of the SC, in which it had ruled that "mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct".

A Brief about Summons

2012-09-08T21:35:00.002+05:30

A Brief about Summons
A Summon is a legal document/notice issued by the court which notifies the party in dispute to appear before the court on a date mentioned in the summon itself.
Section 62 CRPC shows hoe these summons can be served.
(1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in this behalf, by an officer of the court issuing it or other public servant.

(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.

(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.

CRPC Ammendment on 498a

2012-09-03T21:21:00.001+05:30

The CrPC amendments are the codification of the Indian Supreme Court’s orders on arrest and the procedures to follow upon arrests. I see the end of the 498A extortion industry.

Impact of Amendments:

(a) This amendment stops the police from making arbitrary arrests. The very fact that reasons shall have to be recorded in writing fixes responsibility and makes the Police Officer accountable for justifying the arrest. Recording an arbitrary reason would be difficult, since it would need to be substantiated and will also be open to judicial scrutiny. As a matter of fact, to have power to make an arrest is one thing, but to justify that arrest is something completely different. And it is precisely this gap which the amendment seeks to bridge.

(b) The amendment lays considerable stress on the importance of investigation before an arrest is made or not made. Which further means that the officer must be convinced about the bonafides of the case. A mere complaint would not be enough to exercise the power of arrest.

(c) Insertion of Section 41A, pertaining to issue of Notice of Appearance, is in line with the Right to Life and Liberty of Indian citizens. It would also help bring down the number of arrests, which in turn would decongest the crowded Indian jails. Simultaneously, the innocents too can feel secure in case they stand a chance of exposure to implication in false cases.

(d) System of Administration of Law and Justice would become more transparent. The amended CrPC Act together with the Right to Information Act (RTI) would be able to inject necessary checks and balances in the Process of Administration of Law in India. But then, a lot depends on how awakened the citizens are to their Right to Information.