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The article is written by Pramit Bhattacharya, Sujitha S, and updated by Danish Ur Rahman. In this article the authors talk about the role and position of a Promoter of a company. The blog post delves into the duties and liabilities of a promoter and also looks into the position of the promoter before the incorporation of the company and after the process of incorporation is complete, with reference to relevant case laws and legal provisions.

It has been published by Rachit Garg.

Table of Contents

Introduction

Establishing a company is not a one-day task. Before a firm may take its ultimate form, it must complete many processes. Promoters play an important role right from the start of the process. The process of forming a corporation is extensive and involves several steps. The ‘promotion’ stage of the formation process is the first step. An individual or a group of people known as promoters comes up with the concept of starting a business at this stage. Various processes must be completed to incorporate a firm. The promoters carry out these functions and establish the firm. The term has been used frequently in Indian company matters. The Indian Companies Act, 1956 used it to fix liability on promoters, but did not define it and accepted their established position under the common law principle. Subsequently, the Indian Companies Act, 2013 defined the term for the first time. It is a common misconception that the promoters’ job continues until the business has purchased the property, raised initial money, and the board of directors has taken over control of the company’s activities. However, a review of the different provisions of the Companies Act of 2013 demonstrates that the promoters’ role cannot be overlooked even when the board of directors assumes control of the company’s business. This can be carried over to the period when the firm is operating as a going concern and even to the time when the company’s affairs are being wound up.

Definition of promoter

The definition of the phrase “promoter” has been defined in Section 2 (69)[1] of Companies Act, 2013. The term has been used specifically in Sections 35, 39, 40, 300 and 317 of the Act. Section 2 (69) of the Act states that promoter is a person whose name has been mentioned in the prospectus of the company or is identified in the annual returns of the company, or any person who has direct or indirect control over the affairs of the company, whether as a stakeholder or as a director, or on whose direction the Board of Directors act. In simple words, a promoter is a person who performs the various preliminary steps like making the prospectus of the company, floating the securities in the market, etc. but if a person is doing this in a professional capacity, he wouldn’t be considered a promoter. In Bosher v. Richmond Land Co. (1892), the term Promoter has been defined as a person who brings about the incorporation and organization of a corporation. He brings together the persons who become interested in the enterprise, aids in procuring subscriptions, and sets in motion the machinery which leads to the formation itself.

Statutory definition – Section 2(69) of the Companies Act, 2013

The Companies Act, 2013 contains a statutory definition of the promoter which is also more or less in terms of functional categories: Promoter means a person

who has been named as such in a prospectus or is identified by the company in the annual return referred to in Section 92;
who has control over the affairs of the company, directly or indirectly, whether as a shareholder, director or otherwise;
in accordance with whose advice, directions or instructions the Board of directors of the company is accustomed to act. The proviso excludes persons acting in a professional capacity

Types of promoters

As stated above, a promoter is the one who conceives the idea of formation of a company. An individual, an association of a person, a firm or a company, can act as a promoter. A promoter may be an occasional, professional, managing or financial promoter. A professional promoter is the one who hands over the reign of the company to the stakeholders when the company is up and running. Financial promoters are those promoters, who promote financial institutions or banks. Their main aim is to assess the financial situation of the market and form a company at the opportune moment. In the case of managing promoters, they not only help in the formation of the company but when the company is formed, they get managing agency rights in the company. Occasional promoters are those whose main work is to float the company and do all the preliminary work. Although they do not do the promotion work routinely, they may float a company and then go back to their original profession.

Professional promoter

Professional promoters are people who are specialists in promoting new business ventures
Professional promoters initiate all the steps in establishing a new company; they have years of experience in promoting various businesses, and with that experience, they promote a company professionally.
Professional promoters have the promotion of companies as their occupation. Professional promoters are mostly not directly connected with any specific company because they have an occupation as promoters for various other companies. They are connected to a specific company only at the time of promotion.
Once the professional promoters are done with the promotion of the company, they pass on the management of the company to their owners or shareholders, and then they move to another new business venture or another company to promote it.

Occasional promoter

Occasional promoters are not involved in the promotion work of a company on a regular basis, and they do not have promotion as their occupation.
Unlike professional promoters, occasional promoters do not promote a series of companies from time to time; they promote only a limited number of companies that they wish to promote.
Since occasional promoters have their own occupation or profession apart from promoting a company and once the promotion work is done they hand over the management of the company to their owners or shareholders, they move back to their profession.
Normally, the occasional promoter has an interest in promoting a company or helping the company get into a floating stage. They like to bring a company into existence with their ideas. The occasional promoters can be lawyers, accountants, doctors or any other professionals; if they have an interest in promoting a company, they become occasional promoters.

Financial promoter

Certain financial institutions sometimes aid new business ventures by bringing them into existence, and they become their promoters and do the promotion of the company as a normal promoter would.
Most financial institutions provide financial assistance and financial guidance to upcoming businesses and help them launch their business ventures in the business world.
A company needs capital for its existence, and the promoter works in order to bring the company to existence. The financial promoter helps the company by funding its capital.
Financial promoters most often collaborate with new entrepreneurs who are willing to invest and persuade them to invest in new businesses, thus promoting new businesses by acquiring financial aid.
Financial promoters provide the management and technical expertise needed for a company to come into existence.

Entrepreneurial promoter

The role of an entrepreneur is that of an initiator and a promoter. The entrepreneur is also a promoter, as he does all the initial work just like the promoter, like finding the correct members for the business, entering into contract in his name for the sake of the company, and bringing the business or the company into existence.
Individuals who conceive ideas for business and take all the necessary steps required for the promotion of the company are called entrepreneurial promoters.
These types of promoters take necessary steps to set up a business unit to give it shape and they take ultimate control and manage the company. Mostly, the founder who does the promotion is the entrepreneurial promoter.
These types of promoters are those who work on the ground level for the promotion of the company. As they are mostly founders, they are liable for all the risks that occur during the promotion of the company.
The best examples of entrepreneurial promoters in India are the Tata, Birla and Reliance groups, where the founders did all the promotion of the company.

Functions of a promoter

A promoter plays various functions in the formation of a company, from conceiving the idea to taking all the necessary steps to convert the idea into reality. Some of the functions of a promoter are-

One of the main functions of a promoter is to comprehend the idea of formation of the company
The promoter looks into the viability and feasibility of the idea that whether the formation of the company will be profitable and practicable or not.
After the idea has been conceived, the promoter collects and organizes the resources available to convert the idea into a reality.
The promoter decides the name of the Company and also settles the content regarding the Articles of Association and the Memorandum of Association of the Company.
The promoter is the one who decides where the head office of the company will be situated. The promoter also nominates people or associations for vital posts. For instance, the promoter may appoint the bankers, auditors and Directors of the company for the first time.
The promoter also prepares all the other necessary documents which are required to incorporate a company.
The promoter must undergo a detailed investigation, and after analyzing all the concepts related to the idea discovered, the promoter must think about the cost, profitability, production, demand of the product, supply of such product in the market, etc.
The promoter has to enter into a preliminary contract with the third parties on behalf of the company to collect all the resources necessary to form a company. The promoter makes contracts for the purchase of material, land, and machinery, and he also recruits staff for the initial functioning of the company.
The promoter decides who can be the signatories to both the MoA and AoA of the company. The signatories are those who become the directors of the company, and the promoter gets written consent from such signatories that they will act as the directors.
The promoter makes all the publicity for the company by way of advertisement and marketing strategies during the period of promotion of the company

Defining the legal status of a promoter can be a very tough job. He cannot be considered an employee, trustee or an agent of the company. The role of the promoter ceases to exist when the company is on the track and is handled by the Board and the Management.

Legal position of a promoter

The legal position of the promoter of a company is very complicated to understand. The legal position of the promoter is hard to fix, even though he does all the work to bring the company into existence. The legal position of the promoter is explained in detail below:

Promoter is not an agent

The company should be in existence in order to make the promoter an agent of the company, and since the company is not registered during the promotion of the company, the promoter is not an agent, and he is not liable for the contracts entered personally by him on behalf of the company.

As the contract is held on behalf of the company, the company has to ratify it; if it does not have the power to ratify and the promoter still enters into a contract with third parties, then the promoter would be liable. Hence, the promoter would be individually liable and would not be liable as an agent of the company.

Promoter is not entitled to expenses incurred

The promoter works in his own capacity for the existence of the company, and he is not entitled to the expenses incurred from the promotion.

If the promoter has incurred expenses during the promotion of the company, the company has to reimburse the promoter for such expenses. Hence, the promoter is legally not entitled to any expenses incurred on behalf of the company during the promotion.

Promoter and his remuneration

The company may remunerate the promoter, but it is not mandatory for the company to remunerate the promoter for the work he has done. The remuneration can be paid by paying the promoter a lump sum payment or commission for the work done by him during the promotion of the company.

Normally, if the promotion of the company is held by the owners or shareholders of the company, then the concept of remuneration is immaterial, but in terms of professional promoters, as discussed above, their remuneration is mandatory. Since the sole occupation of the professional promoters is to promote a company, they ought to be paid. The professional promoters get remuneration from various companies that they have promoted.

Allotment of shares or debentures to the promoters

The company may allow and allot shares or debentures to the promoters, or they can also give the option to purchase their security at a future date. If the shares are allotted to the promoters, then they become shareholders of the company, thus enjoying ownership of the company to some extent.

The Indian law prohibits companies from granting Employee Stock Option Plans (ESOPs) to promoters. This prohibition to grant ESOPs is provided in Regulation 2(1)(i) of the Securities and Exchange Board of India (Share Based Employee Benefit and Sweat Equity) Regulations, 2021 and in Rule 12 of the Companies (Issue of Share Capital and Debenture) Rules, 2014.

These rules and regulations are applicable to listed companies. The promoters are excluded from the definition of employees, and thus the granting of Employee Stock Options (ESOPs) is prohibited to them.

This restriction does not apply to the promoters of the startups registered with the Department of Promotion of Industry and Internal Trade. The Company Law Committee (CLC), through its 2016 Report, provided this exemption. The CLC recommended that startups be given permission to grant Employee Stock Options (ESOPs) to the promoters, as they might be working as employees or whole-time directors. The grant of ESOPs to the promoters would allow startups to compensate them adequately without the cash flows being impacted.

Duties of a promoter

The promoters who form the company have certain basic duties towards the company. A promoter has a relationship of confidence and trust with the company, i.e., a fiduciary relationship. Keeping this fiduciary relationship in mind, the promoter is under the obligation to disclose all the material facts which relate to the formation of the company. The promoter is also under the obligation to not take any secret profit while carrying out the promoting activities like buying a property and then selling it to the company for profit, without making any disclosure. The promoter is not barred from making profits while dealing with various parties. The only condition is that he is under the duty to disclose such profits and not make any secret profits.

Fiduciary position of the promoter

The fiduciary position of the promoter with regards to a company was first explained in the case of Erlanger v. New Sombrero Phosphate Co. (1878). Lord Cairns, in this case, stated that the promoters undoubtedly stand in a fiduciary position. The creation and molding of the company is in their hands. They have the power of defining when and how, in what shape and under whose supervision the company shall come into existence and begin to act as a business corporation.

Since the concept of promotion of a company gives a very advantageous position to the promoter in relation to the company proposed, the responsibility of a fiduciary position is fixed upon the promoter by the courts. The first and foremost duty of a promoter is that if he attains any form of profit through transactions with the company and obtains money from the shareholders, he must disclose all facts faithfully relating to such transactions.

The fiduciary position of the promoter is explained in the below case of Erlanger v. New Sombrero Phosphate Co. (1878).

Facts of the case

A group of people headed by Erlanger bought an island that had phosphate mines for 55,000 euros. A company by the name of Phosphate Co. was then incorporated on the same island, and Erlanger was the promoter of the company. Erlanger named five persons as directors of the company, out of which two were abroad, and of the three others, two of them were entirely under Erlanger’s control. The three directors purchased the island from Erlanger for 1,10,000 euros, a prospectus was issued, and shares of the company were distributed. The shareholders adopted the purchase of the land at their first meeting, but the facts were not disclosed to them. The company failed, and the promoter was sued by the liquidator for a refund of the profit and disclosure of a conflict of interest.

Issue of the case

Whether the promoter will be sued for not disclosing the conflicting interest despite having a fiduciary relationship with the company?

Judgment of the case

The only contention on behalf of the promoter was that the company’s board of directors had knowledge of the facts of such a purchase of the island from Erlanger. The Court rejected this argument and held that if the promoter proposed to sell the island to the company, it is incumbent upon him to take care of and provide the company with a group of persons (directors) who have the information that the property that they are going to purchase is the promoter’s property. The group of persons must be competent and impartial as to whether the purchase had to be made or not. The Board of directors must be independent and impartial in such purchases. In this case, the island was bought by just three directors of the Board and out of whom two were entirely under Erlanger’s control. Hence, the promoter had control over the Board, and the disclosure of facts to the specific directors of the Board cannot be considered a disclosure of facts to the company. The promoter was held liable and was entitled to refund the profit.

Promoter must work with utmost care and due diligence

The promoter has the duty that he must work with utmost care and due diligence while performing the work of the company during its promotion. Since the promoter is empowered with so many powers and rights during the stage of the promotion of the company, he is expected to work with the utmost care and due diligence.

Liabilities of a promoter

Liability regarding irregularities in the prospectus

Section 26 describes what should be stated in the prospectus and what reports should be included. The promoter may be held accountable by the shareholders if this provision is not followed.

Civil liability

Section 35 outlines the civil liabilities for any prospectus misstatements. Under this Section, a person who has subscribed for the company’s shares and debentures on the basis of the prospectus can hold the promoter accountable for any false statements in the prospectus. The promoter may be held liable for any loss or damage suffered by any person who subscribes for shares or debentures as a result of the false statements made in the prospectus. Specific provisions have also been provided under Section 62 regarding the reasons on which the promoter can avoid his liability. These remedies are available to anyone who can be held accountable for a prospectus misstatement.

Criminal liability

Section 34 deals with the criminal liabilities of drafting a prospectus that contains false claims. The promoters can be held criminally accountable, in addition to the civil liabilities described in the previous two examples, if the prospectus they released contains misstatements. The penalty is either a two-year prison sentence or a fine of up to 5000 rupees, or both. Unless he can show that the inaccurate statement was inconsequential or that he was justified in believing, on reasonable grounds, that the statement was truthful at the time of prospectus issuing, the promoter may be held criminally liable for misstatements.

Public examination of promoters

Section 300 gives the court the authority to order a public investigation of all promoters found guilty of fraud in the promotion or establishment of a corporation. If the liquidator’s report indicates fraud in the promotion or establishment of the company during its winding up, the promoter, like every other director or officer of the company, can be held liable for public examination by the court.

Personal liability

Promoters can be held personally liable for pre-incorporation contracts.

A promoter has to mention the true facts in the prospectus of the company. If he does not do so, he may be held liable for it. The promoter will be liable for any untrue statement which has been made in the prospectus, and on the basis of that untrue statement any person has subscribed to the securities of the company. The person may sue the promoter if he has suffered any damage.
Apart from civil liability, the promoter may be held criminally liable also for mentioning any untrue statements in the prospectus. A severe penalty will also be imposed on him if he provides any untrue statement with the view of obtaining capital.
A promoter can be made liable to a public examination if there are any reports which allege fraud in the formation of the company or the promotion activities.
The company can also proceed against the promoter in case there is a breach of duty on the promoter’s part or he has misappropriated any property of the company or is guilty of breach of trust.

Position of a promoter in relation to the company before and after its incorporation

Prior to incorporation of the company

Promoters found it extremely difficult to carry out promotion activities before the Specific Relief Act was introduced in 1963. Before this Act was passed, pre-incorporation contracts of the company were held to be void. Such contracts also couldn’t be ratified. Therefore, people were very hesitant to supply resources for incorporation of the company without any definite contract. Promoters were also very apprehensive about taking personal liability. The introduction of the Specific Relief Act, 1963[4] made it easier for the promoters to carry out incorporation activities, as the promoters could now enter into pre-incorporation contracts with third-parties.

Section 15 (h) and 19 (e) states that;

The promoter should have entered into the contract for the purpose and benefit of the company
The terms provided in the incorporation agreement should warrant such contracts.
The contract should be ratified after the company, and it should be informed to the opposite party.

A contract made between the promoter on the behalf of the company and the third parties will still be considered as a contract between two individuals. The right to ratify a contract does not lie with the company inherently. The authority of ratifying a contract should be given to the company through its memorandum. So a company cannot be sued by the third party if the company does not ratify the contract, even if the contract was beneficial for the company.

In case the company does not have the authority to ratify the contract (because such authority has not been provided in the Articles), or the company does not ratify the contract, then the promoter will be personally liable.

After Incorporation of the company

After the company comes into existence, and in case it ratifies the contract entered into by the promoter, in such a case the contract will become binding on the company and not the promoter. Section 15(h)[5] and 19 (e)[6] also state that the promoter can transfer his rights and liabilities to the company, provided that such provision is present in the incorporation agreement. Although the promoter is not entitled to any kind of salary and remuneration. But the general trend is to compensate the promoter in lump-sum after the company has been set up. A promoter cannot be asked to be compensated as a legal right. If the promoter is compensated at all, the compensation given to him is on the basis of equity ad fairness. If any shares are being allotted to the promoter of the company, the promoter also becomes a member of the company automatically.

Privileges of a promoter

Right to indemnity

When more than one member acts as the company’s promoter, one promoter can sue the other for the compensation and damages he paid. Promoters are jointly and severally accountable for any false statements made in the prospectus, as well as for any hidden profits.

Right to recover genuine preliminary expenditures

A promoter is entitled to reimbursement for valid preliminary expenditures incurred in the establishment of the firm, such as advertising costs, solicitors’ fees, and surveyors’ fees. It is not a contractual entitlement to receive the preliminary expenses. It is up to the company’s board of directors to decide. Vouchers should be attached to the cost claim.

Right to remuneration

Unless there is a contract to the contrary, a promoter has no right to remuneration from the company. Although the company’s articles may provide for the directors to pay promoters a certain sum for their services, this does not provide the promoters with any contractual right to sue the company. This is just a power granted to the company’s directors. However, because the promoters are usually the directors, the promoters will earn their remuneration in practice.

Case laws

Weaver Mills v. Balkies Ammal(1969)

The Madras High Court’s ruling in Weavers Mills Ltd. v. Balkies Ammal [1969] broadened the applicability of Pre-incorporation contracts. In this instance, the promoters agreed to buy several properties for and on behalf of the firm that was being pushed. When the firm was formed, it took possession of the land and began to build facilities on it. It was held that the company’s title to the property could not be set aside even if the promoter had not conveyed the land to the firm after its incorporation.

Kelner v. Baxter (1866)

In Kelner v. Baxter (1866), the promoter accepted Mr. Kelner’s promise to sell wine on behalf of an unformed company; however, the corporation neglected to pay Mr. Kelner, and he sued the promoters. The principal-agent relationship cannot exist prior to incorporation, according to Erle CJ, and the principal of an agent cannot exist if the firm does not exist. He goes on to say that the company cannot assume obligation for a pre-incorporation contract by adoption or ratification because a stranger cannot ratify or accept a contract, and the company was a stranger because it did not exist at the time the contract was formed. As a result, he concluded that the promoters are personally accountable for the pre-incorporation contract because they consented to it.

Probir Kumar Misra v. Ramani Ramaswami (2009)

The question of whether the signatures of the promoters in the Memorandum and Articles of Association were required in order to make them liable arose. The Madras High Court held that, before the incorporation of the company, there is no need for the promoter to be either a signatory of the Memorandum or Articles of Association, or shareholder or the Director of the Company. The High Court of Madras further stated that the promoters are called “midwives” of the business, as coined by Henry in the Law of Corporations. It is the promoter who does all the major roles for the purpose of bringing the corporate person into existence, like proposing the objectives of the company, forming the original scheme, making arrangements to get the company registered, preparing a prospectus, Memorandum and Articles of Association, etc., which are crucial for the company to come into existence. Thus, the promoters can be held liable even though they may not be either signatories to the Memorandum or Articles of Association or a shareholder or the Director of the company, as they are so connected to the company and its incorporation.

Conclusion

It can be said that a promoter can be an individual, a company, or an association of person which conceives the idea of formation of a company, undertake all the activities which are necessary for the company’s incorporation and brings about the actual existence of the company as a separate legal entity. The promoter nominates the directors, bankers and auditors of the company and also decide the contents of the Articles of the company. The promoter can be called as a molding block who gives basic shape to the company, and his role is of utmost important. The most important part while incorporating a company is the promotion of the company. It is in the time of promotion that all the vital steps to incorporate a company take place, and the promoters are the persons who do the promotion of a company. The promoter undoubtedly has a great influence on the promotion and incorporation of a company.

Frequently Asked Questions (FAQs)

1. Are Individuals alone eligible to become the promoters of a company?

It is not necessary that the individuals alone have to be the promoters of the company. An individual, an association of persons, a firm or a company—anyone can be a promoter of a company. Whoever helps the company in the early stages of incorporation and aids in bringing the company into existence can become its promoter.

2. What is the difference between the founder and promoter of the company?

There is a very thin-line difference between the founder of the company and the promoter of the company. The founder and the promoter both have the idea on which the company is to be started. Sometimes the founder may just have the idea, but he won’t do any required work for the promotion of the company. At that time, the founder may get help from the promoter to promote the company. The founder is responsible for the company’s success or failure throughout its lifetime, whereas the promoter is responsible for the company only during the process of promotion. A founder can also be a promoter.

3. What is promoter holding?

The promoter holding is the percentage of shares of the company that is held by the promoter of such a company. Companies with high promoter holding stocks are often considered safer for investors to invest in. Since the promoter has knowledge of the company’s actual performance and its capabilities, if the promoter thinks that it is worth buying the shares, then there is a possibility that the company will perform well in the future.

References

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Age of Consent Act, 1891

By

Vanshika Kapoor

-

December 13, 2023

This article is written by Diksha Paliwal. It talks about the Act of 1891 brought in India during the colonial period relating to the age of consent in marriage and a reasonable age limit below which a girl is incapable of giving consent, especially for cohabitation. It starts by giving an introduction to the Act, followed by a brief history behind the enactment of the Age of Consent Act, 1891. It further talks about the impact of this enactment.

It has been published by Rachit Garg.

Introduction

The offences of sexual abuse, marital rape, or forcing underage girls into sexual intercourse are not just crimes against the victim; these offences are crimes against the entire society as well as against humanity. They do not just impact the victim physically but shatter her mentally as well. It is the most heinous of offences and has been condemned since ancient times.

The Manu strongly castigates the abuse, harassment, and outrage of women’s modesty. According to Manusmriti shloka 8.352, persons accused of rape, molesting of a woman, adultery, or inciting a woman to adultery must be given the harshest punishment. According to Katyayana Smriti, shloka 69.2, 830, the punishment for forceful sexual activities includes a sentence of death along with a fine. The Adi Parva in the Mahabharata in its Shloka 1.74.50 – 51 states that no man has the authority or power to do anything that is against the will of his wife.

Apart from this, the extracts of various Muslim religious books and their laws also condemn the offence of rape and other forced sexual activities and consist of punishment ranging from the death of the accused by stoning to the infliction of other harsh methods of beating on the accused. Extract 17:32 of the Quran mentions forceful sexual activities like unlawful sexual intercourse as shameful and are said to be opening the roads to many other evils.

During the British Raj, generally, the prevalent personal laws applied to the people, and the Courts adjudicated the cases and punished the convicts based on their laws. However, the Crown felt a need for a better criminal justice system, owing to which a few facts and codes like the Code of Criminal Procedure, 1882, the Indian Penal Code, 1860, and many other Acts and ordinances were brought into force by the British.

The subject matter of this article is, however, restricted to the Age of Consent Act, 1891 (Act X of 1891), which was implemented to change the then-existing age of consent. Before the enactment of the Act of 1891, the consent age was 10 years, beyond which the consent given by the girl was valid in the eyes of the law. The Act brought a great revolution to the emancipation of women in the 19th century. In an Indian patriarchal and male-dominated society, the concept of consent and a woman’s choice was irrelevant. This Act emphasised the concept of consent by a woman in marriage and cohabitation, thereby bringing a ray of hope and giving women a voice in their own lives.

Meaning of consent

The term ‘age of consent’ connotes the age at which a person is considered legally competent to give consent to marriage or sexual intercourse. In India, the age of consent for marriage or sexual intercourse before the enactment of the Act of 1891, as discussed, was 10 years. The Act amended the then-existing age of consent and raised it to 12 years. This means that a girl under the age of 12 years was considered to be incapable of giving consent to marriage or sexual intercourse.

Introduction of the Age of Consent Act, 1891

The Age of Consent Bill, 1891 was introduced in the legislature on 9th January 1891, by Sir Andre Scoble and received the signature of the Crown on 19th March 1891 under the regime of Lord Lansdowne. The Act raised the age of consent from 10 years to 12 years for consummation or sexual intercourse in marriage or otherwise. The Act did not talk about the legal age of marriage, it merely stated the statutory age for giving consent, which was 10 years, before which a girl was considered incapable of marriage. This Bill of 1891, later on, took the form of the Criminal Amendment Act, 1891, whereby the Indian Penal Code, 1860, and the Code of Criminal Procedure, 1882 were amended.

Section 375, IPC

The Act of 1891 amended Section 375 (old) of the Indian Penal Code (Act XLV, 1860) where the word ‘ten’ was substituted by ‘twelve’ years in clause Five and in the ‘Exception’ provided under Section. The Act was introduced to protect girls from premature cohabitation and immature prostitution, which often resulted in the death of the girl child.

Entry in Schedule II, IPC

The Act also added a new entry with reference to Section 376 of the IPC in Schedule II, which categorised the offence of rape by a husband as a bailable offence and in any other case as a non-bailable offence. It also stated that summon is to be issued in cases of marital rape in the absence of consent and in any other cases warrants were to be issued.

Section 561, CrPC

The Act further added Section 561 in the Code of Criminal Procedure, 1882, after Section 560, which included special provisions regarding offences relating to rape by a husband, was inserted. By virtue of this amendment, it was laid down that only the Chief Presidency Magistrate or the District Magistrate is empowered to take cognizance of the offence of rape committed by a husband. It also added that no police officer below the rank of a police Inspector shall take part in or conduct the investigation concerning this matter.

Origin of the Act of 1891

The Act X of 1891 was mainly the result of the widespread and widely discussed horrifying incident of the death of a minor child aged about 11 years due to forceful sexual intercourse by her husband, who was 35 years of age. An article titled “Status of Women in India: In British Period” talks about the sorry state of women in the country during the British period. In the 19th century, the concept that women had any inalienable human rights, i.e., rights that could not be taken away and to which a person was entitled irrespective of the circumstances, was not in the picture. They were rather a part of her family, having no individual identity before her marriage, and after her marriage, she was considered to be under the possession of her husband, having complete rights over the girl. Irrespective of the age of the girl, if married, she was considered to be under the full control of her husband. People at that time were blinded by superstitions, customs, and traditions. Child marriage was an inseparable part of the traditional customs prevalent in Indian society at that time. All these situations were worsening the conditions of the female children and it became of paramount importance that a law that addressed these issues be brought before the legislators.

Generally, the British preferred not to interfere with matters of customs and traditions, as they restricted themselves and focused their approach on expanding their reign over trade and commerce. Up until 1813 AD, the British followed the policy of non-interference. However, there arose certain instances which led to the enactment of various laws and Acts relating to criminal jurisprudence. The Act of 1891 is one of those Acts which was enacted after the shocking death of a minor girl. Although this was not the only reason behind the enactment of the Act, it acted as a catalyst for the same.

Another important event that played a pivotal role in the enactment of this Act was the case of Rukmabai who was married at a very young age, i.e., at the age of 11 years. Rukmabai, a 22-year-old girl, was married to a man named Dadaji Bhikaji Raut, who was 8 years older than her. The marriage was solemnised on the terms that Dadaji would stay with Rukmabai’s family and pursue her further education. However, after she attained the majority and continued with her education, she refused to accept her marriage to her husband. When Dadaji insisted Rukmabai start living with her and accept her marriage, she denied it, and so he moved before the Bombay High Court by applying for restitution of conjugal rights. The court ordered that since Rukmabai is an adult and she does not wish to live with her husband, she cannot be forced to do so. Her marriage was performed at a very young age and was not in a capacity to give consent for the same, and thus, it cannot be binding on her. This case also orchestrated the enactment of the Age of Consent Act, 1891.

The aforementioned Rukmabai case and the Phulmoni rape case have been discussed in detail in the later part of the article.

Present applicability

The Amendment Act was repealed later on, and the existing criminal laws set the age of consent at 18 years. Eventually, with the passage of time and the passing of various amendment laws, the age of consent kept increasing. The Child Marriage Restraint Act, 1929, also known as the Sarda Act, changed the age of consent from 12 to 14 years for marriage, which was later amended to 16 years in the year 1940 (amendment in the Child Marriage Restraint Act, 1929 and IPC, 1860).

Presently, the legal or statutory age of consent is 18 years as per the Indian Penal Code, 1860, the CrPC, 1973, and the POCSO Act, 2012. This implies that before the age of 18 years, a person is not competent to give consent for sexual activity. In the eyes of the law, even if a person below the age of 18 years has given his or her consent, it is not valid.

Impact of the Act

The enactment of the Act of 1891 was among the most emotionally charged conflicts that arose between the people of India and the British. The Indians thought that this enactment was an attack on their customs and traditions. The Act regarded sexual intercourse by a man with a woman under the age of 12 as an offence of rape. This was made applicable even to the husband who entered into sexual activity with a girl who was below the age of 12 years. This step by the British hurt the sentiments of the Indians, as they thought it was interference with Indian social customs. This Act resulted in widespread protest, especially in Bengal. It was felt that for the Indians, this Act challenged the control of males over female sexuality.

Put simply, people felt that it was a challenge to the patriarchal system prevalent in society. The Act received strong opposition from the orthodox sections of society. It was also quoted by these people that the consent of a woman, her judgements, and her self-control over her thoughts are questionable and, thus, are of no importance and need. The dependence of woman in several aspects of life was equated to her complete subservience to a man and so her consent was immaterial according to the orthodox people.

Important events that led to the enactment of the Act of 1891

Rukmabai’s case

Brief facts of the case

The case of Dadaji Bhikaji v. Rukmabai (1885) was filed by the husband, Dadaji Bhikaji Raut, against his wife for the restitution of conjugal rights. Rukmabai was born in the year 1864. Two years later after she was born her father died after which her mother remarried Dr. Shakharam Arjun. When Rukmabai was 11 years old, she was married to Dadaji Bhikaji who was 9 years younger than her. Rukmabai’s stepfather insisted that she must continue her studies and till her studies are complete, she will live in her natal home. When Rukmabai completed 20 years, her husband demanded that she start living with him; however, she denied that as she wanted to continue with her studies and did not want to live with him. Due to Rukmabai’s denial, Dadaji Bhikaji filed a petition in the Bombay High Court for the restitution of his conjugal rights. Rukmabai contended that since the marriage took place without her consent, she could not be forced to honour that marriage.

Issue before the court

The question before the Bombay High Court was to decide whether under such a child marriage, where the girl after attaining majority has refused to live with her husband can be asked forcibly to live with him against her will.

Judgment

The court dismissed the application filed by the husband for the restitution of conjugal rights and stated that no law states that an adult young lady whose marriage took place without her consent can be forced to live with her husband and consummate the marriage against her will. Later on, Rukmabai also appealed to Queen Victoria to dissolve her marriage. Eventually, her marriage was dissolved, and in return, she paid Dadaji monetary compensation.

Phulmoni rape case

Brief facts of the case

In the case of Queen-Empress v. Hurree Mohun Mythee (1890) (also known as the Phulmoni rape case), the victim Phulmoni, who was a girl aged about 11 years, was married to a man named Huree Mohan Mythee. He was about 35 years old when his marriage was solemnised with the victim. On the same day on which their marriage was solemnised, the husband forced himself on his wife who was an 11-year-old girl at that time. The forceful sexual intercourse led to the death of the girl, as she suffered various injuries and her vagina was also ruptured. The charges made against the accused were; culpable homicide not amounting to murder, voluntarily causing grievous hurt, causing the death of the girl by rash and negligent behaviour, and causing grievous hurt by an act so rashly or negligently done as to endanger the life of the girl.

Issue before the court

The court was to decide under what offences the accused would be held liable if found guilty.

Judgement and observation

The Calcutta High Court observed that since the law of rape does not apply to the relations of husband and wife, the accused cannot be convicted of rape. However, due to the negligent and rash behaviour of the accused, which led to the death of the girl, he was convicted of culpable homicide. It was also addressed by the Court that under no law, there exists any provision that provides the husband with an absolute right over his wife and that under no law the husband is immune from the criminal law. He was punished with rigorous imprisonment for a period of one year for committing an offence under Section 338 of the Indian Penal Code, 1860.

Current laws for the age of consent

The age of consent was 16 years from 1940 until the enactment of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The aforesaid Act has fixed the age of consent as 18 years, below which the consent given by the child is invalid in the eyes of the law. Sexual intercourse with a girl below the age of 18 years amounts to rape as per Section 375 of the Indian Penal Code. The amendment pertaining to the age of consent in the CrPC, 1973 was done by the Criminal Law (Amendment Act) of 2013, wherein the age of consent as mentioned in Section 375 was changed to 18 years from 16.

However, the recent rise in false cases of the POCSO Act and the conviction in even those cases in which the girl consented to sexual intercourse out of love, has left many in doubt regarding whether the age of consent should be lowered to prevent such misuse.

Conclusion

The Age of Consent Act, 1891, was a landmark legislation in history pertaining to the rights of women. Child marriages in India were very common at that time, and with such marriages came the horrifying consequences of the death of women at a very tender age due to forceful cohabitation and pregnancy at a very young age. Various events acted as a catalyst in the enactment of these acts including Phulmoni’s rape case, Rukmabai’s case, etc. The law aimed to prohibit sexual intercourse with a girl who had not completed the age of 12 years, and was applicable to both married and unmarried girls. The orthodox Hindus and Muslims contended that the Britishers had no authority to adjudicate and make laws on this matter and stated that these were purely matters of their traditions. This consent Act received severe opposition from the Indians and raised many controversies across the country. Many people believe that the Act was one of the main reasons that radicalised the national movement against the British.

References

Anagol-McGinn, P. (1992). The Age of Consent Act (1891) Reconsidered: Women’s Perspectives and Participation in the Child-Marriage Controversy in India. South Asia Research, 12(2), 100–118.
Engels, D. (1983). The Age of Consent Act of 1891: Colonial Ideology in Bengal. South Asia Research, 3(2), 107–131.
https://www.thedailystar.net/opinion/news/rape-child-bride-laws-locked-time-warp-1996057
https://devikamalik.medium.com/a-10-year-old-was-raped-to-death-on-her-wedding-night-by-her-30-years-old-husband-cc7c190a80de
https://wrap.warwick.ac.uk/156812/1/WRAP-Dadaji-Bhikaji-Rukhmabai-%281886%29-ILR-10-Bom-301-Lammasniemi-2021.pdf
https://vivifychangecatalyst.wordpress.com/2017/11/25/lokmanya-tilak-age-of-consent-and-dr-rukhma-raut/

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An insight on implied warranties

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December 12, 2023

This article has been written by Sana Virani pursuing Diploma in International Contract Negotiation, Drafting and Enforcement and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

A warranty, loosely known as a written promise, serves as a formal commitment to the repair or replacement of the item in case it is not up to the quality standard and fails to function as intended. It is often provided upon the purchase of a product or before the initiation of a transaction to assure the buyer’s credibility for the long term. A warranty, as an undertaking, assures the buyer that the transaction will meet the specific requirements in terms of quality. A warranty is a contractual provision related to the quality, durability, state, performance, and attributes of a specific product. It is provided and becomes effective following a sales transaction. A warranty serves as additional information concerning the intended product or its state.

Role of warranties under contract

A warranty under a contract is on the same lines, which serves as a promise to indemnify the inflicted party if the assertion is false. Representations and warranties are situated together in a contract, wherein representations are a set of statements that are deemed to be true and create a foundation between both parties. Now this foundation is protected by a warranty, which guarantees that the inflicted party will be paid damages if anything goes wrong with that very set of promises. The major reason why warranties are a big deal in a contract is because they bind both parties with the legal commitment of representing correct facts.

In Bekkevold v. Potts (1927), it was observed by the Supreme Court of Minnesota that “an implied warranty is not one of the contractual elements of an agreement. It is not one of the essential elements to be stated in the contract, nor does its application or effective existence rest or depend upon the affirmative intention of the parties. It is a child of the law. Because of the acts of the parties, it is imposed by the law. It arises independently and outside of the contract.”

However, a warranty under contract holds secondary importance for its fulfilment, and non-compliance by the seller only gives the right to claim damages from the buyer and not renounce the whole contract. It is a requisite collateral to the main purpose of the contract, the breach of which gives rise to a claim for damages but not a right for the buyer to reject the goods and treat the contract as terminated. Warranties of various kinds are recognised under the law.

Types of warranty

Warranties are broadly categorised into two types:

Express warranty

As the name suggests, this type of warranty is the one that’s explicitly mentioned and written about. Express warranty is mainstream, and people misunderstand this as the only type of warranty.

Implied warranty

A warranty, which doesn’t need to be expressly mentioned, arises automatically from a sale or its circumstances. Under the provisions of the law, implied conditions are automatically applied because they exist without needing to be written or mentioned. This type of warranty is best suitable in conditions where the buyer observes a fault in the goods and claims his rights to damage. An implied warranty, instead of being a part of the contract to which it attaches itself, is the law’s contribution to the welfare of the parties beyond the terms of the contract itself, as per Hoe vs. Sanbron (1860).

In the event of settling a contract of sale between the buyer and seller, express as well as implied warranties play a crucial role.

Implied warranties under the Sales of Goods Act

Sections 14 and 16 of the Sale of Goods Act of 1930 explain implied warranties, which give them a crucial edge in a transaction. If the parties mutually agree to not impose implied warranties, they should expressly mention their removal.

Let’s discuss both sections briefly and understand the implied warranty’s status under the Sales of Goods Act.

Section 14 (a)

Section 14(a) discusses the implied condition on the seller to have the right to sell a good only if he is the true owner and holds the title of the goods or is the authorised agent of the title holder. It emphasises the ownership aspect, which is a crucial condition because if the seller does own the good himself, selling it to someone will be a breach of the whole transaction, even if it is not mentioned explicitly. In such a situation, the buyer should return the goods and claim his money back as soon as he learns about them. This warranty signifies that the seller possesses the legal authority to sell the goods, and the buyer will obtain clear ownership rights.

Section 14(b)

Section 14(b) of the Act mentions “an implied warranty that the buyer shall have and enjoy quiet possession of the goods,” which means a buyer is entitled to quiet possession of the goods purchased as an implied warranty, which means the buyer, after receiving the title of ownership from the true owner, should not be disturbed either by the seller or any other person claiming superior title to the goods. In such a case, the buyer is entitled to claim compensation and damages from the seller as a breach of implied warranty.

Difference between implied condition and implied warranty

Section 14(a) talks about implied conditions, whereas Section 14 (b) describes implied warranties. A condition is of primary importance and leads to termination when breached, whereas an implied warranty is of secondary importance and entitles the buyer to claim damages when breached. However, implied condition and implied warranty are two sides of the same coin, and understanding both together is a necessity. It is safe to state that “a condition can be treated as a warranty on the wish of the buyer but a warranty cannot be treated as a condition.”

Types of implied warranties

Section 16 of the Sale of Goods Act of 1930 sheds light on the types of implied warranties. In sale transactions, implied warranties can be of various kinds. The following are some common examples of implied warranties:

Implied warranty of fitness

The fitness warranty ensures that a product is specifically guaranteed to serve a particular purpose, and it falls below the merchantability warranty in terms of significance. To illustrate, if you inform a salesperson that you require a saw for cutting metal and it ultimately fails to cut through metal, you have the option to return the item under the fitness warranty. Under this warranty, the product functions properly but does not align with the intended use as communicated by the buyer. The fitness warranty is inferred through a salesperson’s endorsement or assurance of a product’s suitability for a specific purpose. This warranty implies that the products being sold are appropriate for a particular purpose, provided the buyer communicates the intended use to the seller.

Implied warranty of merchantability

The implied warranty of merchantability ensures that products are fit for their intended purpose and meet the reasonable expectations of a typical buyer. This warranty applies to a wide range of consumer products, encompassing both new and used items. It presumes that a product functions as expected for its designated use. This warranty suggests that the products being sold are suitable for their typical use and adhere to a fundamental standard of quality.

Section 14 of the Sale of Goods Act provides certain rights to the merchant for the sale of goods. These are as follows:

The merchant has the right to sell the goods in a contract of sale and in case of an agreement to sell, he has the right to sell the goods when they are ready to be passed on to the market.
The goods processed have an implied warranty assuring the buyer to enjoy them while in possession of that particular product.
It is the duty of the seller to free the goods from any kind of hindrance, mortgage, etc. that is in the third party’s favour and is not known to the buyer.

Warranty against hidden defects

This warranty implies that the products sold are devoid of concealed flaws that would render them unsuitable for their intended function. The doctrine of implied warranty should be extended rather than restricted, as stated in Bekkevold vs. Potts (1927).

Disputes regarding breach of Implied warranties

The following disputes are among the most common resulting from a breach of warranty or implied warranty:

Interpretation of the warranty: Disagreements often occur regarding the warranty’s interpretation, including its extent, the circumstances of its applicability, and the available solutions in the event of a violation.
Proof of damages/breach: The buyer must prove that the seller breached the warranty and suffered actual damages due to the breach of warranty, which can be challenging to quantify in some cases.
Limitation of damages: In certain instances, the sales contract might restrict the damages recoverable by the buyer in the event of a warranty breach, creating a potentially intricate matter.

Ways of repaying damages for breach of implied warranties

Repair or replacement: In the case where the quality of goods is not appropriate, the seller is under an obligation to either fix or replace the goods because of the implied warranty.
Refund: If the goods cannot be repaired or replaced, the buyer may have the right to receive a refund of the purchase price.
Damages: The buyer can claim damages due to the breach of implied warranty, which may encompass compensatory damages (e.g., expenses for repairing or replacing the goods) and consequential damages (e.g., lost profits or other indirect losses).

In Sha Thilokchand Poosaji vs. Crystal And Co., By Its Authorised …(1954), the CJI held that the right of a buyer to damages for breach of warranty proceeds upon the basis of acceptance of the goods delivered and not a rejection thereof. In other words, the right to reject goods and the right to sue for damages for breach of warranty are alternative remedies. They are not cumulative. A buyer can (where goods not answering the description contracted for are delivered) waive the condition, accept the goods, and sue for damages for breach of warranty, and this is the effect of Section 13(1) of the Sale of Goods Act.

In the case of Jacob and Youngs, Inc. vs. Kent (1921), the plantiff (Jacob and Youngs) was the builder who built the defendant’s (Kent’s) house. The plaintiff made the house’s piping system using Cohoes Rolling Mill Company’s pipes in place of Reading Iron Company’s pipes, which were agreed upon during the contract. This led to a breach of contract. The plaintiff was asked by the defendant to build the piping system again as per the contract but the plaintiff did not agree and filed a complaint against him for the compensation of the remaining payment that was to be given by the defendant on the completion of the contract. The Court first made its decision in favour of the defendant but later on, on an appeal, the judgement was overruled and the Court made the statement that the plaintiff need not replace the pipes and asked the defendant to pay the remaining amount to the plaintiff.

Other common types of warranties

Some common types of warranties are:

Implied warranties,
Express warranties,
Extended warranties, and
Special warranty deeds.

Each type of warranty provides a different level of security to the buyer. Customers mostly purchase warranties and extended warranties based on the product. Special warranty deeds are mostly used in the real estate business.

Conclusion

Implied warranties play a crucial role in contracts as well as in daily commercial transactions relating to the sale of goods. The main aim is to ensure the quality, reliability, and performance of goods. It assures the buyer a sense of security with a legally binding commitment to repair/ replace or refund in case the product is not up to par. However, the buyer and seller need to be aware of their rights and obligations regarding implied warranties. Consumers should understand how implied warranties protect their interests, while businesses must be diligent in meeting these standards and, if necessary, disclaim them explicitly in their contracts.

References

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An overview of Protection of Women from Domestic Violence Act, 2005

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December 12, 2023

This article has been written by Muskan Anand pursuing Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Women in the 21^st century might be seen confidently walking out of their homes, competing with their male counterparts and holding high-profile positions. Seeing this image, should we consider that the long standing violence against women in domestic spaces no longer exists? The answer is a big no. Despite various efforts to reduce offences related to women, violence against them in society still continues. This article is an effort to learn about the condition of women and the laws that emerged to protect them from domestic violence.

Condition of women

Throughout history, women across the world have faced violence at the hands of men, and the situation in India is no different. Forced widowhood, the practise of Sati, female genital mutilation, child marriages, rape and forced abortion are some forms of violence that were practised against women. Such treatment of women is because of her status in society, which she has acquired due to societal, cultural, and political factors. Women were not seen as intellectuals; therefore, they were not welcomed in spaces that involved discussions and decision making; they were confined to the four walls of the house and to household chores. A mere attempt by a woman to participate in discussions or words of protest by her against wrongs meted out to her brought her the tags “lunatic” and “insolent”. Girls were not given proper education and they were married at an early age, sometimes with a man who would be much older than them. In marital homes, women were tortured and, in some cases, even killed for dowry. In the nineties, cases related to dowry deaths were on the rise; these cases were being called “bride burning”. The cases related to domestic violence against women were under-reported. In the past, women were not allowed to take-up jobs, they were not given property rights and, as discussed before, they were not given proper education, which, if given, would have helped them to understand the level of discrimination they were facing and would have armed them with the knowledge to tackle such discrimination.

Legislations that protect women

The Child Marriage Restraint Act of 1929, which was enacted to curb the social evil of child marriage, doesn’t even invalidate child marriage; it only has penal provisions where the maximum punishment is 3 months. The injunction orders cannot be issued unless the court has previously given notice to the person committing the evil of child marriage and has afforded him an opportunity to show cause against the issue of the injunction. This provision is redundant in the event that the court is informed of the child marriage at the time of the solemnization of marriage. Further, there is no provision for a child marriage prohibition officer, like in the latest legislation on the same issue. It was impossible to bury the social evil of child marriage with such legislation where there is not even a single provision to assist the child to approach the court for annulment of her marriage, and upon all of it added Section 9, which prohibits the court from taking cognizance of the offence after the expiry of one year from the date on which the offence is alleged to have been committed. It is to be noted that, in India, the maximum number of child brides is found. With such legislation and the poor status of girl’s education, it is impossible to change this status of having the maximum number of child brides.

Dowry is another social evil that is practised in India and is the cause of many crimes. To curb this social evil, the government enacted the Dowry Prohibition Act of 1961, but the enactment failed to curtail the ever growing demands of the bridegroom’s family. Under Section 2, the word dowry is defined very narrowly; it covers property or valuable security only, whereas in Indian marriages, jewellery, cash and clothes for the entire family are also given in marriage and after marriage, on many occasions and festivals. Since the justice delivery system is so overburdened, the cases filed take a good amount of time to get resolved; therefore, in such a situation, parents or relatives of the bride do not file petitions so as to protect the marital life of their daughters; rather, they choose to quench the greed of the girl’s in-laws.

Sections 304B and 498A of the Indian Penal Code of 1860 were the only two provisions that protected women from domestic violence before the Domestic Violence Act of 2005 came. These sections were introduced to reduce the dowry menace that was prevalent at that time. The critique of these provisions is that they only protect women in a marital relationship and not other female members of the household who are also subjected to domestic violence. The word “cruelty” under Section 498A is vaguely defined and does not consider other forms of violence that have been recognised under the Domestic Violence Act. The same section is also subject to the principle of proof beyond reasonable doubt, which makes it difficult for prosecution lawyers to prove the case as violence takes place within the confines of home.

Why was there a need to include specific laws related to domestic violence

One can ask why there is a need to introduce specific laws for domestic violence when its victims can avail relief under the laws mentioned above and the gaps that exist can be amended. As beautifully captured by Indira Jaisingh in her article titled “Bringing Rights Home: Review of the Campaign for a Law on Domestic Violence,” the need for such laws arose because of the difficulties that were faced by women in invoking the law, the reluctance of police in interfering in private matters of the family, and the lack of evidence for convicting the accused. Further, the provisions in criminal law dealing with domestic violence, being penal in nature, were not enough to protect women since they only punished the perpetrators but did not protect the victim. Women, on top of being the sufferers of domestic violence, will be harassed even more if her family members face the wrath of the law as a result of her complaint. She would be dispossessed of her marital home, not supported financially, and emotionally tortured by having her children taken away. None of the remedies provided by criminal law can protect women from these evils; therefore, there was a need for civil law to be in place that could provide relief to women. There were some civil provisions, such as injunctions, but they were not easily available and were not backed by punitive action in case they were violated; therefore, there was a need for specific laws to deal with cases of domestic violence wherein the victim of domestic violence could be protected and provided with holistic support.

Protection of Women from Domestic Violence Act, 2005

The Protection of Women from Domestic Violence Act of 2005 came after a lot of struggle by the women’s organisation and multiple rounds of discussion. The benefit of it was that all the gaps that created hindrances to delivering justice to women were removed.

The key issues resolved

As we discussed above, it wasn’t easy for the aggrieved women to take legal recourse because of the difficulties involved in it. To make it easier for the victims to invoke the law, the new legislation introduced protection officers, who were responsible for assisting women throughout the legal framework.

Another feature of this legislation is that the definition of “aggrieved person” includes unmarried women as well as women in relationships resembling marriage. The definition of domestic violence under this Act recognises physical, sexual, verbal, emotional and economic abuse. The definition of domestic violence has been made very broad, which would help courts convict the respondent before the aggrieved woman reaches the position where she would want to self-harm due to the violence that was being committed against her.

This Act provides holistic protection to women subjected to domestic violence. It is more about providing civil remedy to the victim. The remedies include orders and monetary relief by the magistrate.

Remedies and rights under Protection of Women from Domestic Violence Act, 2005

Protection order

The protection order is issued under Section 18 of the Act to protect the women from any further incidents of violence by prohibiting the respondent from contacting, meeting, committing violence directly or indirectly to the victim, alienating assets, bank lockers and bank accounts owned jointly or separately by the respondent and any other act that is prohibited by the protection order.

Breaching a protection order is a cognizable and non-bailable offence under Section 31, where the respondent may be punished with imprisonment of either description for a term of up to one year, with a fine that may extend to twenty thousand rupees, or with both.

Residence order

The magistrate may pass a residence order under Section 19 of the Act if he is satisfied that domestic violence has taken place. The order can include restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, entering into the portion occupied by the aggrieved person, alienating or disposing of the shared household or encumbering the same, renouncing his rights in the shared household, and directing the respondent to remove himself from the shared household or arrange alternative accommodation for the aggrieved person.

Apart from the instructions mentioned above, the magistrate, under the same section, can also pass other orders and directions to the police officers and respondent to ensure the safety of the aggrieved women.

Custody order

The magistrate can grant temporary custody of children under Section 21 of the Act to the aggrieved during the hearing of the application and can specify, if necessary, the arrangements for the visit of such children by the respondent. Provided that if the magistrate is of the opinion that any visit of the respondent may be harmful to the interests of the child or children, the magistrate shall refuse to allow such a visit.

Compensation order

The magistrate can order the respondent under Section 22 of the Act, on an application made by the aggrieved person, to pay compensation and damages for the injuries, including mental torment and emotional distress, caused by the act of domestic violence committed by that respondent.

Section 20 of the Act provides for the provision of monetary relief under which the magistrate can direct the respondent, while disposing of the application under Section 12 subsection (1), to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may also include other expenses. This provision is also backed by a remedy wherein if the respondent fails to provide the monetary relief, then the magistrate may direct the employer or a debtor of the respondent to directly pay to the aggrieved person or to deposit with the court a portion of the wages, salaries or debt due to or accrued to the credit of the respondent.

Section 17 of the Act protects women from being dispossessed of the house by giving them the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

Gaps in the legislation

Although the legislation on domestic violence was comprehensive enough to cover all aspects of domestic violence, cases of domestic violence have continued. The gaps in the legislation and lack of enforcement by the authorities are partly responsible for the continuation of such cases. Women’s groups criticised the inclusion of counselling for both aggrieved persons and the respondent; according to Indira Jaisingh, it could be more dangerous for a woman if conciliation is prioritised. In India, due to the existing socio-cultural milieu, women are already forced to live in their homes and are made to bear the violence at the hands of their own people. If in such a situation conciliation is prioritised, then these women will be again pushed back to that toxic relationship, against which she would have taken action after finally finding the courage to leave the toxic relationship. The absence of a dedicated budget for the implementation of the provisions of this Act from the Central Government and the inadequacy of funds from the state government result in the incomplete employment of machinery required under the Act, which in turn undermines the objectives of this Act.

Conclusion

To achieve the goal of protecting women from any kind of violence, all the gaps in the legislation should be filled and adequate funding should be made for proper implementation of the machinery required by the Act, but that would not be enough, as accurately pointed out by Jaisingh in the conclusion section of her article, that the thinking of men needs to be changed. As discussed above in the history section of this article, women are facing violence because of their status in society. To uplift women from this position, along with empowering women by providing their education, adequate representation, and protecting their rights from being violated, it is essential to hold gender sensitization sessions from the very beginning of a child’s education so that the child grows up practising things that would lead to the creation of an equitable and inclusive world. In the meantime, it is also essential to educate women about their rights and to continue raising voices for the proper implementation of existing laws. A continual struggle needs to be made to achieve these goals.

References

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All about a plea of alibi

By

Vanshika Kapoor

-

December 12, 2023

This article is written by Danish Ur Rahman. This article gives an exhaustive overview of the plea of alibi under the Indian Evidence Act of 1872. This article deals with the essentials of the plea of alibi, who can avail it before the Court, the consequences of not proving the plea of alibi before the Court, and its other scopes with relevant case laws.

It has been published by Rachit Garg.

Introduction

Let us start this article with a hypothesis. Let’s say that Donald Trump was having a coffee with me in Chennai on the day of Ganesh Chaturthi, but Mr.Trump has proof that he was in the United States with his wife on the day of Ganesh Chaturthi. Here, Mr.Trump has an alibi, saying that he was elsewhere away from Chennai. The Indian Criminal Law System, though it penalises the person who has committed a crime, also provides certain defences to an innocent person to prove his innocence before the Court. One of such defences given to an innocent person who has been alleged to have committed a crime is the plea of alibi. The concept of alibi is an essential part of the study of the law of evidence.

What is an alibi

Alibi is a Latin word that means “elsewhere” or “somewhere else”, The word ‘alibi’ is relevant in the studies of criminal and evidence law. In evidence law, an alibi is a defence or an excuse used usually to avert the blame or punishment given to the accused.

In a crime, the most essential part of proving the guilt of the accused is to prove that the accused was the person who committed the crime, and the prosecution shall have to prove that the accused was present at the place where the crime took place and has thus committed the crime. If the accused could defend that he was ‘elsewhere’ from the place where the crime took place, he is said to have the defence of a plea of alibi.

An alibi is a claim or a piece of evidence that proves that the accused was not in the place where the crime took place. More precisely, it may be improbable, if not impossible, for the accused to be in the place where the crime has taken place.

Provisions of the law that deal with plea of alibi

It is a rule of evidence recognized by Section 11 of the Indian Evidence Act. The Section describes that facts that are otherwise not relevant become relevant under the following conditions:

If such facts are inconsistent with any of the facts in the issue or relevant facts of the case.
If such facts by themselves or in connection with any other facts could make the existence or nonexistence of any other facts in issue or relevant facts highly probable or highly improbable.

Section 11(1) and plea of alibi

Section 11(1) defines that any facts that would otherwise be irrelevant would become relevant if they were inconsistent with any facts in issue or relevant facts. In a case where a crime has taken place, the plea of alibi would cause inconsistency with the facts in the issue of the accused committing the crime.

Illustration:

The question is whether the crime in Chennai was committed by A on a certain day. Here, generally on that day, the fact of A being in Bombay is relevant. It becomes relevant because the place where A was when the crime took place is inconsistent with the place where the crime took place. The impossibility of A to commit the crime that took place in Chennai as he was in Bombay when the crime took place is the inconsistency defined in Section 11(1).

Hence, the presence of the accused elsewhere is essentially inconsistent with the alleged presence of the accused at the place of the crime. From the above illustration, it is clear that the presence of A in Bombay is inconsistent with the allegation that he has committed the crime because for the completion of the crime, the presence of A is required at the time of the commission of the crime

Section 103 and Plea of alibi

Section 103 of the Indian Evidence Act states that whoever wishes the Court to believe the existence of any fact has the burden to prove such fact.

In the plea of alibi, the accused wishes the court to believe in the fact that he was elsewhere from the crime scene. Hence, under Section 103, it is the burden of the accused to prove the existence of the fact that he was elsewhere from the crime spot.

Who can take the plea of alibi

The accused is the only person who can take the plea of alibi. If the accused takes the plea of alibi at the earlier stage of the prosecution, that would favour him as its credibility increases by doing so.

Though not setting up the plea of alibi at the earliest may be unconvincing to the Court in most cases, but in the case of Sahdeo v. State of Uttar Pradesh (2010), it was held that the Court shall have no power to not give due weight to the public document filed before it for the proof of alibi at any part of time during the prosecution.

Burden of proof to prove the plea of alibi

The burden of proof is dealt with in Section 101 of the Indian Evidence Act. The Section defines that whoever pleads with the Court to give judgement in his favour based upon the given facts has the burden to prove the existence of those facts.

Section 101 also defines that if a person is bound to give evidence of the existence of any fact, the burden of proof lies with that person. Since the accused, in the Indian Criminal Law System, is innocent until proven guilty, he is bound to prove the existence of any fact that would acquit him.

The burden to prove the plea of alibi lies with the accused. It is his burden to prove that he was elsewhere when the crime took place. The accused has to prove that he was far from the place of commission of the crime, and hence he cannot be there at the crime scene at that particular time.

The entire burden is solely with the accused to prove that the accused was somewhere else by using any circumstantial facts and gathering witnesses that would ensure that the accused was really somewhere else and that it would be impossible for the accused to commit such a crime due to impossibility.

When does the plea of alibi fail

It is implied through some cases that if the plea of alibi fails on the course of the court rejecting it, then in all probability the accused was where the crime took place. In the case where the plea of alibi cannot be proved by the accused, it should be considered that the accused was really in the place of the commission of the crime. But such judgments were not always similar.

In the case of Anna & Ors v. Hyderabad State (1955), the Court held that it must be understood that mere failure on the part of the accused to establish the plea of alibi will not and cannot give rise to the conclusion that the accused was at the place where the crime is said to have been committed.

Essential criteria to be met for making a plea of alibi

The following list of essential conditions have to take place for making the plea of alibi before the Court.

There should be a crime.
The person taking the plea of alibi should be accused of the said crime.
The accused must not be present at the crime scene.
The accused has to prove the plea with no reasonable doubt.

There should be a crime

To make the plea of alibi, there should be a crime that is punishable under the provisions of the law. Without the presence of a crime, there can be no plea of alibi. The plea of alibi is not applicable for civil cases; the existence of a crime is the most essential ingredient for the application of a plea of alibi.

The person taking the plea of alibi should be accused of the said crime

As we have mentioned above on who can make the plea of alibi, the accused is the only person who can make the plea of alibi as a defence. Hence, the person who has been accused of committing a certain crime alone can take the plea of alibi. Since crime always requires the act of a human being due to mens rea, a person is required, and he has to be accused of the crime, to put forth a plea of alibi.

The accused must not be present at the crime spot

The main object of the plea of alibi is to prove that the accused was somewhere else than the place where the crime actually happened. The person who has been accused and who uses a plea of alibi as his defence must not be present at the crime scene at the time when the crime took place. He must be far away from the place where the crime really took place, or it should be impossible for him to go to the crime spot and commit the said crime.

The accused has to prove the plea with no reasonable doubt

If there are any inconsistencies in the statements of the accused regarding the plea of alibi and if the Court thinks that those statements are unreasonable and doubtful, the Court has the power to reject such a plea.

There should be solid proof from the accused to prove the plea of alibi, without which the court would presume that the accused had been in the place where the crime took place. In the case of Dhananjoy Chaterjee v. State of West Bengal (1994), the Court asked for satisfactory evidence to prove the plea of alibi.

A watchman of an apartment was accused of the rape and murder of an 18 year old schoolgirl. After committing the act, he was nowhere to be found. When he was questioned about the circumstances of his absconding, instead of giving a satisfactory explanation, he came forward with a plea of alibi. Since there was no proof provided by the accused to support the plea of alibi, there was no ground evidence that he was somewhere else when the commission of the crime took place.

The Court held that:

“It is well settled that a plea of alibi, if raised by an accused, is required to be proved by him by cogent and satisfactory evidence so as to completely exclude the possibility of the presence of the accused at the place of occurrence at the relevant time…”

Consequences of a false plea of alibi

A false plea of alibi by an accused as a defence before the Court could be a link in the chain of circumstances that would be relevant to his conduct, but the plea could not be the sole link on which a conviction could be made. Even if the accused has come up with a false alibi plea, it would not lead him directly to conviction; the burden of convicting the accused is still with the prosecution.

The Supreme Court, in the case of Gayadin v. State of MP (2005), held that, although the accused resorted to a false plea of alibi, no court is empowered to point to such a false plea of alibi as positive evidence that he was liable for the crime.

Limits and challenges to the plea of alibi

It is not easy for the accused to use the plea of alibi before the Court to prove his innocence by pleading that he was elsewhere from the place where the crime took place. There are a few challenges to the plea, and they are listed below:

The burden is completely on the accused to prove that he is innocent and that he was somewhere else from the place where the crime has actually taken place.
The court will presume that the accused was on the crime scene and that he is the one who committed the crime. The accused has to prove that the presumption is wrong.
The plea of alibi must be proved beyond reasonable doubt; even a slight doubt about the presence of the accused at the crime scene can reject the plea.

Failure of plea of alibi

If the accused fails to prove the plea of alibi before the court, then the court will presume that he was indeed at the place where the crime took place. Since it is the burden of the accused to prove his plea of alibi, if he fails to prove his plea that he was elsewhere, the prosecution need not further prove his presence at the crime spot.

Case laws

Munshi Prasad v. State of Bihar (2001)

Facts of the case

The accused, along with a group of people, surrounded the deceased and his brother (the person who informed the incident of the accused group of people killing his brother with dangerous weapons) who were coming from the market after finishing their business in the market in the town. The deceased and his brother were followed by two of the accused group when they were on their way home, and suddenly four more people from the group, who were hiding in the bushes, surrounded them along with the accused group. The informant ran away from there, leaving his brother alone, but he saw that the accused group was attacking his brother with their serious weapons. The brother informed the police about the incident and lodged an FIR. The accused took the defence of his alibi before the Court, contending that they had a witness who saw them 400-500 yards away from the crime spot.

Issues of the case

Is the defence of alibi by the accused applicable before the court?
Does 400-500 yards away from the crime spot, could cause impossibility to do the crime by the accused?

Judgement of the case

The Court held that the distance of 400-500 yards from the place where the crime had taken place would not amount to the impossibility of the accused committing the crime. The plea of alibi requires the impossibility of the accused committing the crime because of his absence. The accused could not prove their defence of the plea of alibi, and hence they were prosecuted and convicted for the crime and sentenced to rigorous imprisonment for 10 years.

Gurpreet Singh v. State of Haryana (2002)

Facts of the case

The appellant was accused and convicted of the murder of his deceased wife. The deceased was burned alive by her husband the appellant, because they had bad terms in their marriage. At the time of the examination of the crime scene, the police found that the deceased was lying in a burnt condition in one room, and the appellant was sitting in another room. The appellant was arrested by the police and charged with murdering his wife. The appellant made a plea of alibi before the court that he was in the Gymkhana club, and he further contended that it was only at the club that he came to know about the fire in his house.

Issue of the case

Whether the plea of alibi of the accused and his brother can be accepted?

Judgement of the case

The Court held that the facts and evidence produced before it by the prosecution prove that the appellant has committed the crime of murdering his wife, and he was present at the same place where the crime took place. The Court further held that the burn marks present in the appellant’s body were caused by his wife’s burning body, and this proves that he was present at the crime scene. Thus, the Court rejected the plea of alibi of the appellant.

Lakhan Singh @ Pappu v. The State of NCT of Delhi (2011)

Facts of the case

The appellant was accused and convicted of murdering the deceased. The deceased came to his mother-in-law’s house, where his wife had gone to see her family. The deceased had come to take her back to his place. The wife, after serving dinner to her husband at their aunt’s house, went to meet her other aunt. The appellant was a neighbour to the aunt of the wife of the deceased. The appellant, after the wife of the deceased left for her other aunt’s house, asked the deceased to come over for tea. The deceased left the house but did not return. The relatives of the deceased searched for him and asked the appellant about the whereabouts of the deceased since he was the person with whom the deceased was last found. The answers given by thed appellant were not clear and were doubtful. Another neighbour found out that there was a dead body lying in the shrubs. The relatives were asked to identify the body, and it was the dead body of the deceased. The mother-in-law of the deceased filed an FIR against the appellant, doubting his conduct previously and also absconding from the place when he knew that the dead body had been found. The police arrested him, and the trial started. The appellant, though he did not take the plea of alibi in his statement under Section 313 of the Criminal Procedure Code, relied upon the plea of alibi during the trial.

Issues of the Case

Can the plea of alibi be regarded as a plea of self-defence as contended in this case?
Is Section 313 of the Criminal Procedure Code restrictive to the plea of alibi?

Judgement of the case

Section 313 of the Criminal Procedure Code vests power in the trial court to examine the accused, and in no way does it restrict the plea of alibi of the accused. Despite the credibility of the plea, it could be taken at any time by the accused during the trial. Though the plea of alibi is not a plea of self defence, it has its own defence given to the accused to prove his innocence. In this case, since the accused could not prove the alibi and other solid witnesses were against him, he was convicted of the murder.

Shahabuddin & Anr v. State of Assam (2012)

Facts of the case

The deceased was a married woman who had gotten married to the accused four months prior to her death. The deceased had been subjected to domestic abuse by her husband and his family members, who demanded dowry from her family. She was subjected to so much hurt from the accused and his family. She went to her father’s home and refused to go back to her husband’s house, as she felt that they would kill her. Despite her request, she was sent back to her husband’s house by her mother. One day, the mother and relatives of the deceased were called and informed that the deceased had been feeling dizzy, and she fell down in the kitchen, as a result of which she died. When the mother of the deceased saw her daughter, she could find several bruises in her body, and froth was coming out of her mouth. The post-mortem report also suggested that she was subject to a physical attack, as several bruises were found in her body. The mother of the deceased filed an FIR against the husband and his brother. Both accused pleaded that they were not in the house that day where the deceased died.

Issues of the case

Whether the plea of alibi of the accused and his brother can be accepted?

Judgement of the case

The two accused contended that the death of the deceased was because of her illness and that she was feeling dizzy that day. They also contended that they were not even at the house the whole day when the death of the deceased happened. The prosecution questioned the accused about why, if the deceased was not feeling well, she was not given any medical treatment by them. The accused contended that the deceased was alone at the house and that they were not at the house. The prosecution questioned that if they were not in the house that whole day, how would they have come in contact with the deceased and how would they know that she is suffering from an illness? The accused could not prove their plea of being somewhere else from the place where the crime happened. Also, the circumstantial evidence of the bruise marks and the previous physical attacks on the deceased by the accused persuaded the Court that they were the persons who caused the death of the accused. Hence, they were convicted by the court because they could not prove their plea of alibi.

Mukesh v. State of N.C.T. of Delhi (2017)

Facts of the case

This is the Delhi Gang Rape Case of 2012, wherein six people, along with a minor, committed the crime in a moving bus in Delhi. A 23 year old psychotherapy intern and her male friend were waiting for a bus after watching a movie in a theatre. As they were waiting for the bus, they arrived at the bus, where they boarded and got their tickets for the journey. Then suddenly, two accused persons came near them and started to assault the deceased, to which the male friend revolted. He was attacked by the accused, and the deceased was raped by each of the accused present on the bus, one after the other. The accused incurred severe injuries to her body, which led to her death after a few days. They were then thrown out of the bus. The relatives of the deceased filed a police complaint, and the accused were nabbed by the police. One of the accused put a defence of alibi before the Court during the prosecution.

Issues of the case

Whether the plea of alibi is applicable in this case?

Judgement of the case

One of the accused pleaded for the alibi before the Court, saying that he was not with the other accused in the bus that evening, thus making him impossible for committing such a heinous crime to which he has been alleged. He contended that he was drunk that evening and went to a music show, of which he could not provide any solid proof. He also stated that he went to the music show with another accused involved in this case and with the family of the accused. The Court rejected the plea of alibi on the grounds that it was inconsistent with the statements given by the accused earlier in the case. Earlier, he stated that he did not meet that other accused till a particular time on that day, but in the plea, he stated that he was with that other accused and his family. The Court held that there should be no reasonable doubt while proving the plea of alibi; the entire burden is with the accused, who is using it as a defence to prove that he was somewhere else from the place where the crime actually took place.

Conclusion

The scope of the plea of alibi is in the hands of the accused, who has to prove his innocence by proving to the court that he was somewhere else when the crime was committed, which he has been accused of. If the plea of alibi is accepted and proved, the Court shall acquit the accused according to Section 11(1) of the Indian Evidence Act, as his presence in one place is inconsistent with the place where the crime has taken place. The plea gives the defence (though it is not included in the general exceptions of the Indian Penal Code, 1860) to the accused by implying his impossibility to commit the crime because of his absence at the crime spot.

Frequently Asked Questions

Is there any scope for Section 11(1) of Indian Evidence Act other than the plea of alibi?

Section 11(1) of the Indian Evidence Act, 1872, has other scopes as well, other than the plea of alibi. The other scopes of Section 11(1) are listed below.

Non access of husband to show illegitimacy of issue: If a husband has no access to the wife for more than the gestation period, the fact that the child born after the gestation period is an illegitimate child is a relevant fact under Section 11(1). The fact that the husband has no access is inconsistent with the fact that a child has been born without begetting.
Survival of the alleged death: If there is an allegation that A killed B on 01-01-2023. The fact that B was alive till 01-02-2023 is relevant under Section 11(1), as the date till which B was alive is inconsistent with the alleged date of B’s murder by A.
Commission of a crime by third person: A is charged with the murder of B, if A could prove that it was C who actually killed B. The fact that C actually killed B is a relevant fact under Section 11(1), as it is inconsistent with the fact that A killed B.

Is the distance relevant to the plea of alibi?

The distance between the place where the accused was really there and where the crime really took place is immaterial to the court. The main criteria for the plea of alibi is to prove the impossibility of the accused committing the crime. If the accused could prove that he was far away from the crime scene at the time when the crime was committed, and hence convince the court how it would be impossible for him to commit the crime then that alone is enough to prove the plea of alibi. Hence, distance is irrelevant in the plea of alibi.

Does failure to prove the plea of alibi lessen the burden on the prosecution?

Even in cases where the accused could not prove the plea of alibi, the accused won’t be convicted for the crime. Even if the accused was at the place where the crime took place, he might not have committed it. It is the prosecution’s duty to prove to the court that the accused was the person who committed the crime. The duty of the prosecution is not limited to just proving the place where the accused was when the crime took place, but to actually proving the guilt of the accused.

References

https://lawcorner.in/plea-of-alibi-under-the-indian-evidence-act/
https://www.legalserviceindia.com/legal/article-533-alibi-a-plea-of-an-accused-under-the-indian-evidence-act.html
https://lawbhoomi.com/plea-of-alibi-in-evidence-act/#:~:text=The%20plea%20of%20alibi%20is%20a%20crucial%20defence%20in%20criminal,earliest%20stage%20of%20the%20case
Avtar Singh, The Principles of Law of Evidence, Eastern Book Company, 23rd Edition.
Ratanlal Dhirajlal, Law of Evidence, LexisNexis, 20th Edition.

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Section 319 CrPC

By

Shoronya Banerjee

-

December 12, 2023

This article is authored by Anusha Kothari, a law student from the Maharaja Sayajirao University of Baroda; and updated by Ziya ur Rahman Karimi. It discusses in detail the provision of additional prosecution contained in Section 319 CrPC.

This article has been published by Rachit Garg.

Table of Contents

Introduction

There are cases where after the production of evidence, the court thinks that a person other than the accused has committed the offence. In such cases, the court has the power under Section 319 of the Code of Criminal Procedure to summon, detain or arrest such a person after service of notice. Section 319 deals with the power of the court to proceed against other persons appearing to be guilty of such an offence for which the accused is prosecuted. This section talks about additional prosecution, when during the trial it appears to the court that a person who has not been joined as accused in the case has committed the offence, then in such a case, the person can be tried together with the accused. This section ensures justice and takes into account the convenience of both the parties by taking cognizance of the newly added accused in the same case. The code also takes into consideration the interests of the person who has been joined as accused via Section 319(4).

The bench of Justices KM Joseph and PS Narasimha reiterated the findings of Babu Bhai Bhimabhai Bokhiria & Anr v. State of Gujarat & Ors (2014). The power under Section 319 CrPC cannot be exercised in a casual and cavalier manner. It should be exercised only when strong and cogent evidence occurs against a person.

The Section emphasizes the principle of double jeopardy which has been enshrined in Article 20(3) of the Indian Constitution. The Supreme Court reiterated in Manjeet Singh v. State of Haryana, 2021 that once the accused has been acquitted, he cannot be summoned as an additional accused. It is based on the principle that the culprit must not be acquitted and the accused must not be punished.

Brief summary of Section 319

The Section deals with additional prosecution. It mandates the court to add any such person to the trial with the accused against whom strong evidence has been presented. Such a person against whom sufficient evidence has been produced and the court is satisfied as to his involvement in the case becomes an accused on the date when the order has been passed by the court. The magistrate has ample powers at any stage of inquiry or trial to take cognizance and add any such person against whom prima facie evidence has been given. Even if the complaint has been dismissed under Section 203 CrPC after the inquiry is completed, it does not bar the court from initiating the proceedings under section 319.

Objective of Section 319 CrPC

Section 319 CrPC finds its roots in this powerful doctrine “Judex damnatur cum nocens absolvitor”, which means the judge is condemned when the guilty is acquitted. This doctrine is the guiding principle behind the underlying philosophy of Section 319 CrPC. The monumental importance of this doctrine was highlighted in the important case of Hardeep Singh v. State of Punjab (2014). In this case, the court held that while a prima facie case against the new accused needs to be established from the evidence presented before the court, it requires evidence that is much stronger than just a mere probability of the person’s involvement. The standard of proof that should be applied should be more than a prima facie case as exercised at the time of framing of charges. But less than the satisfaction that the evidence, if unchallenged, would lead to a conviction. If such a level of satisfaction is not met, the court should refrain from exercising power under Section 319 of CrPC. The court also highlighted the importance of the doctrine of “Judex damnatur cum nocens absolvitur” in Para 12 of the judgement. The court noted that Section 319 springs out of this doctrine. The court also pointed out that this doctrine must be used as a beacon light while explaining the scope and the spirit of Section 319 of CrPC.

Section 319 CrPC is concerned with the principle that the innocent should not be wrongfully punished. At the same time, it also conveys a significant principle that a wrongdoer must not be spared from the hands of justice. This dual commitment to justice forms the foundation on which Section 319 was added, ensuring a balance protecting the rights of the accused and ensuring that the guilty is punished for all his wrong-doings. This doctrine serves as a reminder that the scales of justice must remain finely tuned. It reinforces that in the pursuit of justice that the court must be cautious and careful, making sure that the guilty is not spared from the punishment while safeguarding the rights of the innocent. Section 319 CrPC incorporates this dual responsibility, giving the court’s discretionary power to include individuals as accused during the trial if compelling evidence is found against them, all while respecting the principle of double jeopardy.

In essence, the doctrine of “Judex damnatur cum nocens absolvitor” serves as a guiding light to Section 319 CrPC, which in turn stands as a symbol of justice, illuminating the path that the legal system must follow and look upon. It highlights the commitment of the Indian Judicial system that justice is not only impartial but equitable at the same time. It firmly establishes that judges are indeed criticised harshly when the guilty manages to escape conviction.

Nature of power vested with Courts under Section 319 CrPC

The power under Section 319 of CrPC is an extraordinary power that is conferred on the court, and it is exercised at the discretion of the judge. It should be used carefully and cautiously, and should be exercised only if the compelling reasons exist against the individual against whom the action has not been taken. Section 319 CrPC is a special provision. It seeks to meet an extraordinary situation.

The Supreme Court in Para 98 of Hardeep Singh vs State of Punjab & Ors described the nature of power vested with courts under as section 319 CrPC as-“Section 319 of the Criminal Procedure Code gives a special and arbitrary power. It should only be employed sparingly and when the situation clearly calls for it. It cannot be utilized because the Magistrate or Sessions Judge thinks another individual may also be responsible for committing that crime. Only when there is clear and convincing evidence against a person in the evidence provided to the court should this power be used, and not arbitrarily or carelessly.”

Essentials of Section 319 CrPC

S.319 (1) lays down essentials that need to be satisfied to attract this section –

There must be a trial or inquiry of an offence. Section 319(1) makes it mandatory for the courts to exercise their power only during the trial or inquiry of an offence. Section 319(1) gives the court the power to proceed against such a person not being the accused, whom it thinks, from the evidence gathered during the course of inquiry or trial, to have committed the offence. Further, sub clause (2) of the Section also gives additional power to the court to arrest or summon that person if he is not present during the proceedings. In case the person is attending the proceedings, then the court may detain him for the purpose of inquiry under Section 319(3).
Court must be satisfied by the evidence presented that any other person other than the accused has committed such an offence. In a recent 2019 Supreme Court case of Sugreev Kumar v. State of Punjab & Ors (2019), a judgment authored by Justice Dinesh Maheshwari for himself and Justice Abhay Manohar Sapre, unequivocally reiterated that to add a person as additional accused under Section 319 of the Code of Criminal Procedure, stronger evidence is required than mere probability of complicity of that person. This is the test that has to be applied while considering an application under section 319. It is settled law that the evidence implicating the person must be cogent evidence and such power must be used by the courts sparingly.

A similar view has been observed by J. K.M Joseph & J. Narasimha in the case of Ramesh Chandra Srivastava v. State of UP, 2019. The Division Bench said that the test laid down by the bench in this case for invoking power under Section 319 CrPC includes the principle that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319 CrPC should be exercised. In the present case, the wife of the deceased alleged that Srivastava was accessed and he was not summoned, so the court summoned him. He filed an appeal against this order of the lower court which was rejected by the High Court. Later the Supreme Court allowed the appeal by setting aside the High Court’s judgment and directed it to follow the guidelines laid down in Hardeep Singh v. State of Punjab 2014. The test which was laid down by the Court was one which is more than a prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if it goes unrebutted, would lead to a conviction. The Court further clarified that the power under this Section is an extraordinary and discretionary power and has to be used sparingly by the courts. Unless the court is satisfied with the involvement of the person, it should not issue a summons or detain him.

Such a person has to be tried together with the accused. He must be tried with the accused simultaneously but according to Section 319 (4)(a), the proceedings against him have to be started de novo and the witnesses have to be examined again.

Only after satisfying the above three conditions, a new accused can be added to the trial.

By whom can the power under Section 319 CrPC be exercised

This power conferred by Section 319 CrPC can be exercised by the courts. It can be exercised either suo moto or upon application by any person including the accused. This power is discretionary and must be exercised judicially by the courts. The court enjoys extraordinary powers under this section and it must be used sparingly only if evidence compels the court to initiate the proceedings against that person. The trial court can take suo moto cognizance only when there is evidence recorded during the trial which involves the persons to be added as accused and the evidence recorded during the investigation should not be relied upon. The power of the court of taking suo moto cognizance cannot be interfered with by the revisional court only if the court gave cogent reasons while giving such an order. Such order must be given only when the first informant or one of the witnesses seeks to implicate a person other than the accused.

When the court rejects the application more than once on the ground that no prima facie case has been made out, then the revisional court must hear the applicant under Section 401(2) CrPC, and if satisfied the High Court can exercise its powers under Section 397 CrPC by invoking inherent powers under Section 482 CrPC.

This power ordinarily cannot be exercised by the court of sessions according to Section 193 CrPC but with the aid of Section 209 CrPC such a bar is lifted and the court of sessions has complete and unfitted original jurisdiction to take cognizance of the offence which includes the power to summon a person.

Against whom can the power under Section 319 CrPC be exercised

The court can exercise this power against any person who has not been accused in a case before it. This does not include a person against whom such court has issued summons but includes persons against whom the police investigation was dropped but evidence shows prima facie involvement. However, if a person has been discharged, no proceedings can be initiated against him unless under Section 300(5) CrPC or any higher court decides to try him.

The question of whether a person who has not been named in the charge sheet can be prosecuted under this section has been answered by the courts in the affirmative. Even if such a person was accused in the FIR but the police couldn’t collect cogent evidence against him, still he can be added as an accused. Moreover, the accused against whom proceedings have been quashed can also be prosecuted under this section.

At what all stages throughout the trial can this power be exercised

It must be exercised at the trial or inquiry stage. The trial, in any case, begins once the charges have been framed (in the case where the charge sheet is filed), whereas when the police file a final report, an inquiry by the court takes place. Trial means a determination of innocence or guilt of the accused by examining witnesses and documents. Whereas an inquiry commences after the police files a final report dropping all the charges against the accused person. In such cases, the court may initiate a further inquiry into the matter if it thinks it fit or if the other party files a protest petition. The Court in Hardeep Singh v. State of Punjab, 2014 has put a restriction on the power of the magistrate provided under Section 319. It clarified that the magistrate is forbidden to exercise its powers when the case is at the stage mentioned in Section 207 CrPC to Section 209 CrPC. The magistrate cannot take cognizance at this stage of the proceedings.

The question as to whether the court of the session has the power under Section 319 to summon the additional accused before the stage of recording evidence has been considered by the Supreme Court in Ranjit Singh v. State of Punjab (1998), in which it observed that once the sessions court has taken cognizance, the power to add any person as an accused can be exercised only after reaching the stage of evidence collection and not before that.

The powers under Section 319 cease to exist with the end of trial i.e. pronouncement of judgment. Although a witness must be cross-examined before implicating him, under Section 319 prima facie evidence is sufficient to implicate a person and initiate proceedings against him. Cross-examination is not a prerequisite to summoning an accused under Section 319. These powers could be exercised by the court upon completion of an examination in chief. The Court in Saraba Reddy v. Puthur Rani Reddy (2007) has held that a plea of alibi does not discharge the person and he can still be summoned under this section.

The precedent set by the Court in Rajindra Singh v. the State of UP (1959) clarified the documents which could be relied upon for summoning a person under Section 319. It held that the material evidence which has been laid before the court has to be taken into consideration and not the case diary or charge sheet or affidavits or statement recorded under Section 161 CrPC. Moreover, it was held that adding an accused merely on the suspicion of a witness would be a travesty of justice because hearsay evidence cannot be made admissible in the court of law.

Prior notice to accused is necessary or not-

As a general rule, criminal courts are bound to issue a notice of summons for the appearance of a person in the court. The court must issue such notice for adding the person as an accused only when it is satisfied that the evidence implicates the accused. He must be given the opportunity of being heard, only after which the order under section 319 can be passed by the court.

The courts have also clarified their position in cases where the trial court has already taken cognizance within the limitation period but the application under Section 319 has not been passed for 3 years, even then the limitation provisions won’t apply to the procedure laid under Section 319. The Court’s powers under Section 319 are not bound by the limitation period.

Case laws surrounding Section 319 CrPC

The most important case which laid down the object of Section 319 was the case of Hardeep Singh v. the State of Punjab (1947) wherein the Supreme Court held that the cases under this section must not only be disposed of expeditiously but also simultaneously.

The Court clarified in the case of R.C Kumar v. the State of A.P (1990) what will be considered as evidence under Section 319. Evidence will include only the statement of witnesses as recorded by the court and not those which are recorded by police under Section 164 CrPC or by a magistrate under Section 202 CrPC. Evidence must be of such nature that it must fulfill all the essentials of the offence for which the accused is presented and enough to make out a prima facie case against the accused person. It is not necessary for such evidence to result in the conviction of the accused but must be sufficient to initiate proceedings against him. The courts have also held that a statement expressing mere apprehension or suspicion about a person that too, is not related to cause of death or transaction leading to death is not sufficient to arraign the appellant as accused in the case.

In Suman v. State of Rajasthan (2009), the Supreme Court held that Section 319 permits adding a new person as accused who was named in the FIR but was not included in the charge-sheet. If the court is satisfied by the evidence produced, that such person has committed an offence and must be tried for it then he can proceed under this section. Whereas if the person has been tried before and has been discharged, then cognizance against him cannot be taken under Section 319 even if evidence points towards his involvement in the offence as it would result in double jeopardy.

Case laws surrounding Section 319 CrPC

Jitendra Nath Mishra v. State of UP (2023)

Facts of the case

In the case of Jitendra Nath Mishra v. State of UP (2023), an FIR was registered under Sections 419, 420, 323, 406, and 506 of the IPC and Section 3(1)(r) & (s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against Dharmendra Nath Mishra, Dharmendra’s brother, and an ‘unknown individual’ based on the complaint by victim and his wife. The accused allegedly assaulted and abused the complainant and his wife, which amounted to the commission of offence of cheating by personation, cheating and dishonestly inducing delivery of property, voluntarily causing hurt, criminal breach of trust, and criminal intimidation, along-with insulting/intimidating/abusing any SC/ST person punishable under the above-mentioned Sections respectively.

After investigation, a chargesheet was submitted under Section 173 (2) of the CrPC, with Dharmendra listed as the sole accused. The Special Court established by the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 took cognizance of the offence and filed charges against Dharmendra. The trial followed. The Court took notice of the fact that the FIR revealed that Dharmendra, his brother, and an unknown individual had committed the offence. Both the complainant and his wife testified before the court. They gave detailed account of the assault on complainant by the accused Dharmendra, his brother (appellant) and the ‘unknown individual’. They also recounted the statements made by Dharmendra and the appellant during the assault, which included derogatory comments about the caste of the complainant and his wife.

Issue raised

Whether the court u/s 319 of CrPC is empowered to add an additional prosecution solely relying on the evidence furnished by the complainant?

Judgment of the Court

The court held that it is within the discretion of the judge to exercise this power in relation to a person who is not named in the FIR or who is named in the FIR but is not listed as an accused in the chargesheet. Therefore, to exercise the power under Section 319 of the Criminal Procedure Code, there must be evidence on record proving a person’s involvement in crime, and that person, who has not yet been charged as an accused, must stand trial alongside those who have already been charged.

Guidelines laid down in Sukhpal Singh Khaira v. State of Punjab, 2022

In the recent case of Sukhpal Singh Khaira v. State of Punjab (2022), a five judge constitution bench comprising Justice S Abdul Nazeer, Justice BR Gavai, Justice AS Bopanna, Justice V Ramasubramanian, and Justice BV Nagarathna of the hon’ble Supreme Court issued elaborate guidelines regarding the exercise of powers under Section 319 of CrPC for summoning additional accused during trial. The guidelines are:

If the competent court discovers evidence or receives a request under Section 319 CrPC regarding the involvement of any other person in committing the crime based on the evidence presented at any stage of the trial, the trial must be stopped before a decision on acquittal or sentence is made.
The Court will then examine whether it is essential to summon the additional accused and issue directions accordingly.
The summoning order must be issued before the main case trial can be carried forward, if the court decides to exercise its power under Section 319 of the CrPC and summon the accused.
The Court shall also consider whether the new accused to be summoned is to be tried together with the other accused or separately, depending on the stage at which the summoning order is granted.
If the decision is for a joint trial, the new trial will not commence until securing attendance of the summoned defendant.
If it is decided in order that the accused who was summoned can be tried separately from other accused, the court will not encounter any problem in concluding the trial against the accused who were being pursued.
If the trial is paused as in (i) is in a case where the accused who were tried are to be acquitted, and the decision is that the summoned accused can be tried separately in a new trial. There shall be no impediment in passing the judgement of acquittal in the main case.
If the power under Section 319 of the CrPC is not invoked or exercised during the main trial until its conclusion, and if there is a split-up (bifurcated) case. Then, the power under Section 319 of the CrPC can only be invoked or exercised in the split-up (bifurcated) trial if there is evidence pointing to the involvement of the additional accused to be summoned.
The right course of action, if the circumstances call for the court to invoke and exercise the authority under Section 319 of the CrPC after arguments have been heard, and the case has been reserved for judgment, is to put the case aside for re-hearing.
On setting down the case for re-hearing, the above-described method to decide whether to summon; hold a joint trial; or continue in another manner shall be decided and proceeded with, accordingly.
Even in such a scenario, at that stage, if the decision is to summon additional accused and hold a joint trial, the trial shall be conducted and de novo proceedings will be held.
If, under those circumstances, it is decided to have a separate trial for the accused who was summoned, as previously indicated:

Before a new trial against the accused who was called is started, the verdict and sentence in the primary case may be revealed.
If there is an acquittal, it will be ordered in the main case, and the summoned accused will then go through a new trial.

Frequently Asked Questions (FAQs)

What is the scope of Section 319 CrPC?

Section 319 of the Code of Criminal Procedure (CrPC) plays a vital role in enabling the court to ensure the upholding of justice throughout criminal proceedings. The objective of this Section is to handle the situations in which at first, the person who was not accused of the crime might be the one doing it or involved in doing any activities involved in the crime. This Section makes sure that the guilty does not escape the punishment and if evidence come along the investigation, then the court can accuse the person guilty.

How Section 319 CrPC relates to the principle of double jeopardy?

Section 319 CrPC is closely tied to the concept of double jeopardy, which forbids an accused person from being prosecuted more than once for the same offence. This view is in line with Article 20(2) of the Indian Constitution which prohibits the prosecution of a person for the same offence more than once. Section 319 of CrPC only allows prosecution of persons not being an accused, essentially safeguarding the principle of double jeopardy. It involves a compromise between both parties while protecting the rights of the innocent and making sure that the actual accused is spared or punished accordingly.

Can the court add a person as an accused based on mere suspicion?

No, Section 319 CrPC clearly requires more than a mere suspicion. This rule clearly states that in order to accuse someone of a crime, one must present some strong and persuasive evidence during trials and inquiry. Mere suspicion is insufficient. Strong evidence must support and show the possibility of the involvement of the person in the crime.

Who has the authority to invoke or exercise power under Section 319 CrPC?

The judge presiding over the trial may apply Section 319 CrPC. The judge may exercise this power at the request of any party to the dispute, including the defendant, or it may choose to do so on its own (Suo moto). The judge holds the key responsibility in determining whether to invoke Section 319 of CrPC.

During a trial, at what stage Section 319 CrPC can be invoked or exercised?

Section 319 of CrPC may be invoked at any point throughout the trial or inquiry. Whenever any new evidence is presented which shows the involvement of a person who was not initially accused, it becomes more relevant to use. This allows the court to adapt to the evolving circumstances as the case unfolds.

What happens if the accused has been acquitted before the application of Section 319 CrPC?

A person who has been acquitted cannot be summoned as a new accused under Section 319 of CrPC. The double jeopardy rule under Article 20(2) of the Constitution of India, which forbids the prosecution of the person for the same crime more than once, is consistent with this limitation.

What safeguards are there in place to protect the rights of the accused in Section of 319 CrPC proceedings?

The requirements of Section 319 safeguard the accused’s rights. According to Section 319(4)(a), the proceedings in respect of the new accused shall be commenced afresh and witnesses will be re-heard. The accused must have adequate notice and a chance to be heard before being added as an accused under Section 319 of CrPC. This formal requirement ensures that the accused may present their defence and deny the new allegations.

What is the underlying philosophy behind Section 319 CrPC?

The doctrine “Judex damnatur cum nocens absolvitor” (Judge is condemned when guilty is acquitted) is the guiding principle behind the underlying philosophy of Section 319 of CrPC. The doctrine serves as a guiding light to Section 319, which in turn stands as a symbol of justice, illuminating the path that the legal system has to follow.

Are there any guidelines for courts to follow while exercising or using their discretion under Section 319 CrPC?

Yes, a five judge constitutional bench of the Supreme Court issued elaborated guidelines in the case of Sukhpal Singh Khaira v. State of Punjab (2022), regarding the exercise of powers under Section 319 CrPC for summoning additional accused during trial. The power under Section 319 of CrPC is to be used situationally, only when there are strong evidence against a person’s likely involvement in the crime. While the provision grants discretion to the court, it is to be exercised in a manner that it upholds the principles of fairness and justice.

Conclusion

Although almost all aspects of Section 319 CrPC are well settled, there remains a lacuna in some aspects of it. In a recent case of Sukhpal Singh Kharia v. State of Punjab (2019) Criminal appeal 866 of 2019, the Supreme Court pointed out a few points for which no precedents exist-

The court emphasized that no guidelines have been laid down for the courts to follow while exercising its power under Section 319 CrPC. Although the power under this Section is discretionary, it must be used sparingly and in the absence of guidelines, it gives room to arbitrariness.

Another lacuna on which the courts stressed on was – although the precedents have laid down that the stage until which a new accused can be joined is only till the trial or inquiry stage but what happens when the trial of the accused is complete and the judgment is pronounced on the same date along with the summoning order of the new accused. There is no precedent affirming or denying this position. These questions still need to be addressed in a court of law.

References

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All you need to know about arbitration agreements

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December 11, 2023

This article has been written by Keyva Taylor pursuing Diploma in US Contract Drafting and Paralegal Studies and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

An arbitration agreement helps parties solve contractual issues. Just like litigation, when parties go to the courts to have an impartial third party, that is, a judge, decide and resolve legal issues, arbitration helps parties solve their issues by bringing an impartial third party, also known as an arbitrator, to resolve contractual issues. The agreement focuses on arbitration, which is a dispute resolution where parties meet with the arbitrator in person and then both parties will make their case with evidence to support their argument. Having heard both parties, the arbitrator will then present a written decision called an award. Such arbitrational proceedings are included in the arbitration agreement. Such agreements have been mostly included in contracts and agreements for as long as business has been conducted.

What are arbitration agreements

Arbitration has always been around for many years, perhaps even centuries. But there were two legal cases that gave rise to the use of arbitration in U.S. civil matters. In United States Asphalt Refining Co. vs. Trinidad Lake Petroleum Co. (1915), the validity of such arbitrational clauses in business dealings was questioned. The claimant, which is a corporation in South Dakota, took steamships from the respondent, a British corporation that owned vessels that were under British registry to be used lawfully around the world but were mostly employed in Trinidad and the United States. These steamships were then withdrawn from the claimant’s service during World War I. The charter for each steamer that was made in London contained the clause that disputes were to be settled in London through arbitration and the enforcement of such an agreement shall be made a rule of law. The claimant questioned the validity of such a clause but as held by District Judge Hough, “under the law of the place of contract,” which is England, “this arbitration agreement was at the time of making the charter parties entirely valid.” The judge also based this judgement on the English Arbitration Act of 1889, as the English courts would have actually ruled in favour of the respondent given that both parties had agreed to the terms of the clause and were able to consent, having been of sound mind and of legal age to do so. The impact of this case led to the formation of the Federal Arbitration Act in 1925. It then became statutory law, which helped civil matters be decided fairly. Also, with the formation of the Act came the American Arbitration Association, which helped strengthen confidence in using arbitration when resolving civil matters and overcome existing hostility that evolved from English courts. The use of arbitration has grown throughout the years to deal with civil matters and businesses have grown to see the benefits of this dispute resolution.

Benefits of arbitral agreements

Arbitration agreements are used in contracts because they are beneficial in contractual matters. In the recent case of Coinbase, Inc. vs. Bielski (2023), Justice Kavanaugh highlighted these benefits, stating that arbitration offers “efficiency, less expense, less intrusive discovery and the like.” Arbitration is a quicker and more efficient way to solve legal matters, saving businesses time and money. If parties decide to go through the courts to solve legal matters, they may find themselves waiting for quite a while. Also, litigation can be costly, as money must be spent on legal representation and other expenses that may arise. Arbitration offers a more efficient solution as matters can be heard faster and a decision can be rendered, sometimes within the same day. Unlike litigation, arbitration follows a simple set of rules of evidence and procedure; there is less intrusive discovery under arbitration. Only evidence needed to resolve the dispute under arbitration is considered and the process time for discovery is therefore shortened. Additional evidence isn’t necessarily considered unless it pertains to the subject matter.

Also, unlike the courts, which are bound by precedent, arbitration proceedings are more flexible in nature and are based on evidence. Parties can create their own rules that are to be followed during proceedings, which will then be considered and possibly enforced by the arbitrator. Arbitrators are also experts in their field, bringing their own knowledge of the specific industry to legal proceedings.

There is also greater confidentiality offered when using arbitration. Businesses may prefer to keep certain matters private and this is easier if parties go to arbitration. Trials often do not offer the same kind of confidentiality and the decisions of cases under litigation become public knowledge after rulings.

Disadvantages to using arbitration clauses

Although arbitrational clauses provide numerous advantages, there are still several disadvantages that arise when using arbitrational agreements. Most general arbitration clauses tend to declare that they are binding. This therefore means that if both parties agree that legal matters are to be decided through arbitration, they are bound by that decision and the decision of the arbitrator. Some arbitration agreements may state that the decision is non-binding and that the disgruntled party can take the matter to court. However, this is even an additional expense, as not only would they have to be for the arbitration but also court and other legal fees.

In Doctor’s Associates, Inc. vs. Casarotto (1996), there was a dispute regarding a standard form franchise agreement for a Subway sandwich shop. Casarotto sued the petitioners, franchisor Doctor’s Associates and its agent, Lombardi. The Montana Supreme Court ruled that the arbitration clause was unenforceable. This was overruled by the Supreme Court with the decision rendered by Justice Ruth Bader Ginsburg that the Federal Arbitration Act precedes the Montana first page notice of arbitration requirement as matters that are “subject to arbitration” must comply with Federal law.

This is in comparison to the outcome of Green Tree Financial Corporation vs. Randolph (2000).

The respondent had purchased a mobile home, which was financed by Green Tree Financial Corporation. The agreement included that she would have to buy insurance and she couldn’t agree to this as it wasn’t initially disclosed to her. The matter had gone to the Court of Appeal, which decided that the agreement couldn’t be enforced as there was no decision rendered on the rest of the payment of arbitration expenses. Chief Justice William H. Rehnquist held that “large arbitration costs can prevent someone effectively vindicating her rights”, she wouldn’t have to pay should the matter go to arbitration.

This brings up another disadvantage. It is usually assumed that arbitration is an affordable legal recourse, but that may not necessarily be the case, especially when dealing with larger corporations. Although Randolph was able to avoid legal costs, Casarotto wasn’t that fortunate.

Another issue that may deem arbitration unfair is that of mandatory arbitration. The idea of mutual consent is not considered here, as arbitration is mandatory by contract. These types of agreements can restrict the rights that would otherwise be available to other parties to the agreement. In AT&T Mobility LLC vs. Concepcion (2010), a class action lawsuit was brought on the basis that the offer of a free phone to new customers was an act of fraud as they were charged sales tax on said phone. AT&T had an arbitration clause within its’ contract to which the parties had indirectly consented. Justice Scalia, in presenting the majority opinion, noted that state law cannot preempt that of the Federal Arbitration Act. Therefore, parties can only use individual arbitration for legal redress rather than a class action lawsuit.

Similarly, in American Express Co. vs. Italian Colors Restaurant (2013), the card acceptance agreement only allowed matters to be decided by arbitration. Although claims were brought by merchants such as Italian Colours Restaurant that it violated U.S. antitrust laws, the Supreme Court of the United States ruled in favour of American Express, and it was held that the card company can prohibit class action suits due to its’ arbitration clause.

This is in comparison to Ryan Romano vs. Blue Cross Blue Shield of Michigan (2022), where Honourable George Caram Steeh held that Blue Cross Blue Shield of Michigan (BCBSM) could not compel the plaintiff to obtain the COVID-19 vaccine due to religious reasons and therefore this part of the arbitration clause within the employment was not enforceable. Additionally, in Lamps Plus, Inc. vs. Varela (2018), due to the general language used, the arbitration clause would not be enforceable as it was ambiguous.

Unlike ligation, which allows for appeals should one party not agree with the judicial rulings, as seen in the following cases, arbitrational agreements are not easily repealed. Parties may have agreed to the rules but not necessarily agreed to the outcome of the ruling and as the courts can recognise this ruling is final, there may be no other legal recourse for the unsatisfied party. Also, as parties usually decide their own rules and there is no set precedent, there could be different outcomes for arbitration disputes even if the facts are similar.

Improving arbitration agreements

Arbitrational clauses can be improved to ensure that proceedings are more efficient.

Determining the validity of arbitrational agreements has introduced agreements that should be resolved through arbitration to the court system, which invalidates the entire concept of arbitration. Improving the validity of arbitrational agreements therefore needs to be considered to remove ambiguity and allow agreements to be solved outside of the courts by arbitrators.

Sometimes, implementing these improvements may be considered, depending on the nature of the agreement. Drafting the actual arbitration clauses rather than using the boilerplate clause can ensure that both parties needs and expectations are met. Also, parties can consider whether the language used in the clause only addresses contractual issues or whether it should be drafted to include other forms of dispute, such as torts or statutory claims. The language used in such a clause can affect how it is interpreted by the arbitrators, should it become an issue in the future.

Also, selecting arbitrators with actual legal experience and experience in that industry can ensure that the matter is efficiently dealt with, as can the number of arbitrators that are to be on the panel. In some cases, introducing third party discovery may be advantageous to one party who believes that the other party is hiding relevant evidence or other subject matter, which can negatively impact arbitrational proceedings. A three-party panel may result in a more fair and balanced decision than just having one person presiding over the matter. This can be stated if the clause is being drafted to the specific agreement rather than being a boilerplate clause. When drafting the clause, it may also be beneficial to add a severability clause, which can render parts of the clause unenforceable without affecting the entire clause. Another aspect that can be considered while drafting is adding a severability clause that allows the arbitration clause to continue even after the contract has been terminated or expired. Creating a budget also ensures that the parties do not overspend and that costs are reasonable for both parties.

Trends in arbitration agreements

As business keeps evolving, so do the terms of contracts. Arbitration and arbitrational clauses have also evolved in modern times. With the development of COVID, arbitration can be carried out online, which is even more efficient than meeting with the other party and arbitrator in person. Additionally, the use of clickwrap agreements may help high-volume businesses improve arbitrational clauses on their site, which has improved since the cases of Nguyen vs. Barnes & Noble, Inc. (2014), where it didn’t create a reasonable terms of notice for users to agree to the terms of use given it was presented in a browsewrap with hyperlinks alone and Sarchi vs. Uber Technologies, Inc. (2022), where Justice Horton held that the claimant wasn’t given sufficient notice of Uber’s terms and conditions, whether original or updated, where she was to give actual consent, as it was easy to bypass these terms due to it being in clickwrap.

Another trend that may be introduced in future arbitration agreements is following precedent in other matters. This has already been done in class action law suits. This may create some predictability as to how cases will be decided in the future.

Conclusion

Arbitration contracts are useful in providing parties with legal redress when conflicts arise with contracts. Although they can be quite beneficial in solving disputes with respect to contracts, there are also several limitations that may arise, depending on the nature of the contract. As the business world continues to progress, so will the nature of arbitration agreements.

References

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

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

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An overview of financial crimes in Asia

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December 11, 2023

This article has been written by Ravipati Satya Ramakrishna pursuing Certificate Course in Advanced Criminal Litigation & Trial Advocacy and edited by Shashwat Kaushik.

This article has been published by Sneha Mahawar.

Table of Contents

Introduction

Any illegal activity that involves money or financial transactions through financial systems or any other means. To put it simply, any criminal activity that involves using money to engage in illegal activities. The problem of financial fraud is on the rise worldwide. The majority of crimes worldwide are financial crimes because they involve monetary transactions. The rate of financial crimes in Asian and African countries will be higher than that in Western countries. The reason is that many Asian and African countries are economically backward.

Financial crimes in asian nations

Asia’s shares account for nearly 59.2% of the world’s population. The majority of these communities are economically backward. The major factor that leads people to engage in illegal activities is employment. For instance, in India, we have nearly 142 crore people, which is 17.76% of the total world population. Approximately 95.4 Lakhs are graduating every year, in this about 42% graduates are unemployed. The graduate unemployment rate in South Asian countries like Afghanistan, Bangladesh, Pakistan, and Sri Lanka is 65%, 47%, 28% and 20%, respectively. These statistics represent unemployed graduates. There are also unskilled workers, semi-skilled workers, and daily wage labourers, which constitute nearly 50% of the population in these countries. Many financial crimes worldwide are caused by this employment. Many workers are migrating to other countries in search of employment. Most of the migration is illegal because countries have strict migration rules. Due to strict migration rules, many unskilled migration workers are illegally migrating and living in unlawful settlements (for example, Rohingyas in India, the Chinese Filipino community from mainland China to the Philippines, the immigration of Nepalese settlers in Bhutan, and Burmese immigrants in Bangladesh). Due to this illegal migration, they have many disadvantages, unlike citizens, so they should depend on agents and brokers who use them for illegal activities. They should depend on smuggling and other types of illegal activities for their survival. Poverty plays another major role in causing many unemployed people to indulge in illegal activities. Many Asian countries have a young population that is below the poverty line. These vulnerable young populations are involved mainly in drug cartels and organised crimes. The United Nations in Asian countries is taking steps to control these financial crimes.

Major financial crimes in asian countries

Any crime that involves monetary or financial transactions is a financial crime. The different types of financial crimes are money laundering, smuggling of migrants / migrants trafficking, terrorist funding, cyber crime, Narcotics / drug smuggling, illegally transferring money without any movement of physical or electronic mediation, commonly called as hawala transactions in India, etc. In Dubai, the hawala transaction is legal, provided it is registered with the United Arab Emirates Central Bank, which abides by some regulations by the government.

Money laundering

Money laundering is described by Interpol as “any act or attempted act to conceal or disguise the identity of illegally obtained proceeds so that they appear to have originated from legitimate sources.” Money laundering is a major issue in Asian nations. An increase in shell companies evading taxes is a growing concern across the Asian Nations, especially Southeast Asian countries.

How is illegal money transacted internationally

For instance, when a businessman or a politician gains money through illegal means or through cash, they immediately open a company in the name of their acquaintances. The main characteristics of a shell company are that, in the majority of cases, the company is established in another country where the laws are feasible and easily transacted (for example, USA, UK, Singapore, etc.). The company exists on paper, but physically, it does not exist. But they are operated by henchmen of people in business or politicians in the mother nation. The unlawful money they gain will be invested in those shell companies either through hawala or foreign investments. In a few days, the money from the shell company will be transferred to the original company accounts of businessmen or politicians in the mother nation. Then, the money will be considered a lawful foreign investment in the eyes of that country. Due to this type of shell company transaction, the fraudulent person will not disclose the original source from which they got the money. So they can evade tax, their liabilities will increase, and they can showcase themselves with clean hands. These transactions are very high in countries like China and India.

In the 2016 Panama Papers leak, the German newspaper “Süddeutsche Zeitung” revealed information about more than 2 billion shell companies. These shell companies are administered by the law firm Mossack Fonseca in Panama. About 11.5 million documents were leaked regarding these shell companies.

In India, nearly 2000 shell companies were shut down by the Securities and Exchange Board of India (SEBI) after the demonetisation of ₹500 and ₹1000 by the Government of India. Many buildings were seized, which were registered as shell companies across India.

Countries such as the UK, USA, India, and the European Union have established their respective regulatory bodies to curb illegal transactions through shell organisations. In India, the “Task Force on Shell Companies” was established with a view to systematically curbing illegal financial transactions and will be struck off by the Registrar of Companies under Section 248 of the Companies Act, 2013. The Registrar of Companies has struck off more than 2 lakh shell companies in India. In India, if a director of a company fails to file financial statements or annual returns for three financial years continuously, then the directors are disqualified by the Registrar of Companies under Section 164(2)(a) of the Companies Act, 2013.

The funding of terrorism

The major problem in Asian countries, particularly South Asia, is the growing threat of terrorists and violent extremists. Vision of Humanity’s survey shows that India is ranked 13th in Terrorism impact countries with a score of 7.175. The neighbouring country of India, which borders India to the west, is training terrorists and providing state-funded terror financing to many designated terrorist organisations. The United States has listed the designation State Sponsors of Terrorism; it describes Pakistan as a terrorist safe haven where individual terror groups raise funds, recruit, train and plan attacks around the world. Pakistan’s financial support for terrorist organisations has repeatedly placed Pakistan on the Financial Action Task Force’s (FTAF) grey list.

After the September 11 attacks on the United States, where around 2,750 people were killed, all nations worldwide have been actively working to eradicate terrorist financing. There have been 12,002 terrorist incidents in India since 1970 until 2018, of which nearly 19,866 have died and 30,544 have been injured. India is the country with the highest number of terrorist attacks compared to other countries. Mafia, which is involved in organised crimes, is also a threat to most Asian countries, aside from terrorist attacks. Examples of countries affected by organised crimes are Hong Kong, Macau, Taiwan, Malaysia, Singapore, Vietnam, Laos, etc. The main source of these Organised-crimes is illegal funding, which was raised by these radical groups from drugs, human trafficking, prostitution, and the illegal supply of weapons.

Migrant trafficking

Asian countries are facing a significant problem with smuggling migrants. Migration being one of the main reasons for smuggling is indicated by the United Nations Office on Drugs and Crime report. People around the world continuously move around the globe. The reasons may be employment, poverty, internal disputes, wars, or religious reasons (ex. Israel-Palestine; Rohingya from Myanmar, etc.). Most of the migration will be illegal because it is difficult to access legal channels for everyone. Migrant workers will seek assistance from middlemen, agents, or brokers who trafficked them through illegal channels during this phase. The lack of identity among migrants will result in a high disadvantage for those who migrate through illegal channels. This results in their vulnerability being exploited by brokers or agents.

Formal labour migration channels and refugee resettlement programmes have been established by several Southeast Asian countries, as reported by UNODC. The disadvantage of this process is that it is time-consuming and requires funding. Despite the establishment of formal labour migration channels, their disadvantages led to the facilitation of illegal migration. Illegal migrants are more likely to be abused because they are not protected by any land laws.

Narcotics/drugs

Transnational narcotics crime is becoming more of a concern globally on a daily basis. The production of opium in Afghanistan is the largest worldwide. The Balkan route to Iran is estimated to have a total of USD 28 billion per year in the trafficking of opium. According to the UNODC report, it was distributed in Turkey and South Eastern Europe from Iran. Drug trafficking has had an impact on the neighbouring countries of Afghanistan. The market for drugs in South-west Asia is the largest. In South-west Asia, most people who inject drugs are infected with HIV, according to a survey conducted by the United Nations Office on Drugs and Crime. Regulating financial flows, creating strict regulations, and enacting customs laws are just some of the initiatives the United Nations has taken to combat drug trafficking.

Regulatory bodies

EGMONT Group

Egmont Group is an organisation that has 170 Financial Intelligence Units (FIUs) across the world. The main purpose of this group was to fight against terrorist funding. The structure of this group consists of heads of financial intelligence units from various nations, followed by the Egmont Committee, and is further categorised by regional groups and working groups. The main aim of the Egmont Group is to exchange information between all the members of FIUs, form a support and compliance team that makes policies and procedures for combating terror financing, and provide technical assistance and training to the local bodies through the FIU group secretariat and the Egmont Centre for FIU Excellence and Leadership.

The United Nations Office on Drugs and Crime

India has become a part of the global fight against money laundering and terrorist financing by enacting the Prevention of Money Laundering Act, 2002.

The Financial Action Task Force (FATF)

The Financial Action Task Force is a policymaking intergovernmental organisation founded in 1989. This intergovernmental organisation will develop policies regarding money laundering and terrorist financing. In 2000, a blacklist was introduced by this financial regulatory body. FATF has established certain rules that, if a company or nation fails to comply with them, they will be placed on the grey list. If it presents a serious and high-risk situation, it will be placed on the black list. If any country or individual body is placed on either the grey or black list, it means that other countries will not cooperate with that country. No financial aid will be provided. Every year, financial developments and regulation letters are published by 39 member bodies.

International Monetary Fund (IMF)

The International Monetary Fund is a financial institution that is financed by 190 member countries. A financial regulatory body is responsible for supporting the economic stability of a country. When the country is experiencing a deep financial crisis, the IMF provides funds to the nation, which can be used to reduce poverty and boost economic growth.

Conclusion

Financial crime is a significant problem that is affecting nations worldwide. Poverty and unemployment are the main causes of financial crimes. Governments should take systematic steps to control financial crimes instead of suppressing them forcefully. The most vulnerable groups are the ones who commit financial crimes, which are mainly committed by poor and unemployed youth. The government should prioritise hiring and providing basic necessities for migrants and unemployed youngsters. International organisations have been established to control crimes throughout the world. United Nations organisations must create international laws to combat migrant trafficking. The purpose of regulations is to make life easier for migrants. Laws that protect migrant workers and provide them with basic necessities should be put in place. The basic root cause of illegal money flow should be investigated by governments and strict laws should be put in place to control it. It is necessary to closely monitor the shell organisations and blacklist the individuals responsible for the crime for any future business.

References

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All about Madhya Pradesh Judicial Services exam (MPCJ)

By

Vanshika Kapoor

-

December 11, 2023

This article has been written by Anushka Saxena. This article discusses everything that a candidate must know while preparing for the Madhya Pradesh Judicial Services Exam.

It has been published by Rachit Garg.

Introduction

Career opportunities for law students are not only limited to becoming advocates; rather, there are certain other career options, such as entering government jobs, corporate jobs or entering in judicial services. Many law students prefer entering the field of judicial services as they find the judiciary as a fascinating career option. You know, there is one thing that makes this career most demanded and this is because students get a chance to enter the judicial services straight after their law schools. But, as per the new amendment to the MPCJ recruitment process, the candidate will be eligible to appear for the Civil Judge (Junior Division) Examination after 3 years of practice as an advocate, or 70% marks in aggregate (General/Other Backward Classes category) and 50% marks in aggregate (Scheduled Castes and Scheduled Tribes) in graduation. For this you will have to clear the judicial services exam, which is conducted in three stages – Prelims, Mains, and Interview.

Every state conducts its own judicial services exam. Madhya Pradesh Judicial Services exams provide entry in the MP lower judiciary as an entry level Civil Judge. Basically, anyone wishing to join the judicial services must have an LLB degree. Now, after attaining the degree, there are two options that allow you to enter the MP judicial services, one is that you can appear for the exam conducted by the MP High Court or the State Public Service Commission for lower judiciary. Another way is that if you are an enrolled advocate with certain years of experience as an advocate, you are eligible to enter the higher judiciary.

The number of vacancies that come out for this exam depends on the requirement and it varies from state to state. Furthermore, thousands of students appear for the Madhya Pradesh Judicial Services Exam every year. The ratio of vacancies to the number of applicants makes this exam more difficult. Students appearing for this exam require a lot of hard work, dedication and proper guidance to successfully pass the Madhya Pradesh Judicial Services exam.

This article will help you understand everything about the Madhya Pradesh Judicial Services exam.

Madhya Pradesh Judicial Services exam (MPCJ) : brief overview

As soon as a student enters a law school and discovers various career options, entering the lower judiciary is one such option that fascinates every student at one point in their college life. Some choose to follow this path and make a career in judiciary. Students who wish to appear for the Madhya Pradesh Judicial Services exams have to first get an LLB degree from a recognised law college affiliated with the Bar Council of India. Now, there are three levels in this exam namely, the Prelims, Mains, and interview. These levels are conducted one after the other. With each passing stage, students move on to the next level. Generally, the Madhya Pradesh Judicial Services exams are conducted every year but no one can actually predict the date and time of the exam. Moreover, the vacancies are also not fixed. You might consider yourself lucky if there are more vacancies in the year when you are appearing for the exam. It depends upon the requirement during that particular time.

The official notification for recruitment of 2023-24 is not out yet. Candidates can check the official website of Madhya High Court by clicking here for any notifications pertaining to the Madhya Pradesh Judicial Services Exam.

The major advantage of the Madhya Pradesh Judicial Services exams is that law students get a chance to enter the lower judiciary after their graduation. Although there have been certain amendments to the new recruitment process that we’ll be discussing further while understanding the eligibility criteria.

So the first level is Prelims and here you get multiple choice questions (MCQs) and the time duration of this exam is two hours. The Prelims exam is of 150 marks. Only those students who have cleared the Prelims are allowed to appear for the Mains exam. Furthermore, the Mains exam consists of four papers of 100 marks each, the total being 400 marks. For this, the time allotted is three hours for each paper.

MPCJ eligibility

Every person who has completed his or her three or five year LLB from a recognised institute affiliated with the Bar Council of India is eligible to register for the Madhya Pradesh Judicial Services exam.
A law graduate between 21 to 35 years of age can appear for this exam as of January 1, 2023. Moreover, 3 years of relaxation is given to SC/ST, OBC, PwD, specially abled persons, permanent/ temporary employees of MP government, and natives of Madhya Pradesh.
Specially abled persons will be eligible for such benefit under the amended rules only if they have a valid certificate issued by the Medical Board of central/ state government, and at the time of submitting the application, the applicant’s specially ableness shall not exceed 40%.
There is a general requirement that the candidate appearing for this exam shall be a citizen of India and shall not have any criminal record. He/she must have a good and decent character in society.
A new eligibility criteria has been introduced for the MP Judicial Services exam. It says that on the date of submission of application, the candidate must have served as an advocate for a minimum of three years, or you must be a student having a good academic record who has passed all the exams in the first attempt with a minimum aggregate of 70% for General and OBC, and 50% for SC/ST during the course of five-year or three-year LLB Course.

MPCJ disqualification

A candidate appearing for the the Madhya Pradesh Judicial Services exam may be disqualified by the Recruiting Authority or Appointment Authority or government from admission into the examination or appearing in the interview or taking employment in the government office for the following reasons:

Candidate has been found guilty of impersonation or submitting fake or incorrect documents.
Candidate is found to be misleading the authorities by using unfair means for appearing in the interview or examination.

Moreover, the candidate found guilty of the abovementioned acts shall be held liable for criminal prosecution as well.

A candidate shall be disqualified from direct recruitment for the following reasons:

He or she has more than one spouse living.
Has been removed from any state, central, or legal authority for holding any such office;
Has been convicted for any moral turpitude offence or has been disqualified for recruitment by the Union Public Service Commission or State Public Service Commission or any other service selection board;
Has been convicted or involved in a case which, according to the Appointing Authority, shall not be conducted by a Judicial Officer;
Has been found guilty of professional misconduct according to the Advocates Act, 1961 or any other law for the time being in force;
Has taken dowry at the time of marriage. Here ‘dowry’ will have the same meaning as mentioned in the Dowry Prohibition Act, 1961.

MPCJ age criteria

Candidates who wish to appear for the Madhya Pradesh Judicial Services exam will be eligible only if his or her age falls under the age criteria as will be provided under the MP Judicial Services official notification of 2023; otherwise, the candidature will not be accepted. The notification of 2023 is still awaited. For the time being, the previous year’s notification can be taken as a base to understand the age criteria to be followed in the MPCJ Exam.

Candidates who have attained the age of 21 years are eligible to appear for the exam as per the notification dated January 1, 2023.
The upper age limit to appear for this exam is 35 years. This means a candidate who is more than 35 years old cannot appear for this exam.
Furthermore, the government has given 3 years age relaxation to certain groups of people, such as SC/ST, permanent/temporary employees of MP government, and specially abled applicants.

Madhya Pradesh Judicial Services Amendment Rules, 2023

There are various amendments brought by the Madhya Pradesh High Court pertaining to the eligibility criteria, disqualification, validity of selected list, etc. We’ll be discussing all the amendments one by one

Eligibility criteria of the MPCJ Exam – We have already discussed the amendments brought in the eligibility of the MPCJ exam. You can check it by clicking here.
Disqualification – Certain people are disqualified from appointment or recruitment in the Madhya Pradesh Judicial Services exam, that we already discussed. Check it here.
Duration of validity of the select list – Rule 5A has been inserted which says that the list of selected candidates of every year is valid for a period of 12 months.
Reservation for persons with disabilities – Rule 6 talks about the reservation for persons with disabilities along with the SC, ST, and OBC. Furthermore, Rule 6A horizontally reserves 6% seats at the time of initial recruitment for persons suffering from locomotor disability including leprosy cured, dwarfism, muscular dystrophy and acid attack victims (excluding cerebral palsy). Now, in case such seats are not filled due to lack of such candidates, the reserved seats will be carried forward for the next year.
Person with benchmark disability – Rule 6B clarifies that any candidate except persons with benchmark disability will be treated under general category if he or she does not have a domicile of MP.
Resignation with Lien and Oath – Rule 16-A and 16-AA relating to such provisions have been omitted now.

Number of vacancies in the MPCJ exam

The number of vacancies coming up for the Civil Judge post varies from year to year. This is because this vacancy is created to fill the vacant position of Civil Judges in the Madhya Pradesh Judicial Service. Now, vacancies for the year 2023 have not yet been released by the MP High Court, but the notification is expected to be out soon.

Please Note: As per the Madhya Pradesh Judicial Services Amendment Rules, 2023, the appointment for the post of Chief Judicial Magistrate/ Additional Chief Judicial Magistrate under Section 12 of the Code of Criminal Procedure, 1973 will be done among the senior Civil Judges on the basis of merit-cum-seniority by the High Court.

Question patterns of MPCJ exam

Prelims – The first level is Prelims; here you get multiple choice questions (MCQs) and the time duration of this exam is two hours. This paper contains 150 marks.

Mains – Only those students who have cleared the Prelims are allowed to appear for the mains exams. Furthermore, the Mains exam consists of four papers of 100 marks each. Therefore, all the four papers contain 400 marks in total. For this, the time allotted is three hours for each paper.

Interview – Candidates who pass the mains exams are eligible to enter the last stage of Madhya Pradesh Judicial Services exams, i.e., the interview or viva-voce. This carries 50 marks.

It is to be noted that it is important to pass the Prelims as it only gives you a ticket to appear for the next exam, but the marks of this exam do not form the basis of final selection procedure. This does not mean that the final selection solely depends on the interview; the marks of the Mains and interview are added together to reach a conclusion and complete the selection process.

Tabular representation of details of the MPCJ exam

Particulars	Details
Organiser	High Court of Madhya Pradesh
Post offered	Civil Judge, Junior Division (entry level)
Age limit	21 years to 35 years (as of 01.01.2023)
Application process	Online
Prelims Application Fees	Rs. 1047.82/- (Unreserved) and Rs. 647.82/- (Reserved)
Mains Application Fees	Rs. 283.20
Selection Process	Preliminary Exam, Main Exam, and Interview

Syllabus of the Madhya Pradesh Judicial Services exam (MPCJ)

The Madhya Pradesh Judicial Services exam is conducted in three levels and therefore, the syllabus is different for all the levels. We will look at the syllabus of all three exams – Prelims, Mains, and interview one by one.

MPCJ Prelims

Prelims exam is the entry level exam of the Madhya Pradesh Judicial Services. This paper is of two hours long, where you will get 150 objective type questions and each question will carry 1 mark. Now, the Prelims syllabus is divided into two parts. First part is law, which carries 110 marks, and the second part tests your general knowledge and ability, which carries 40 marks. Additionally, there is no negative marking in this paper.

First Part – Law (Total questions 110 of 110 marks)

Second Part – General (Total Questions 40 of 40 marks)

General Knowledge (Questions – 20, Marks – 20)
Computer Knowledge (Questions – 10, Marks – 10)
English Knowledge (Questions – 10, Marks – 10)

MPCJ Mains

Once you clear the Prelims, you can appear for the Mains exam. This exam has four papers, namely,

Paper I – Constitution, Civil Law, and Procedure
Paper II – Article Writing, Summarization and Translation
Paper III – Local Laws, Criminal Laws, and Procedure
Paper IV – Judgement Writing

Each paper carries 100 marks. Students are given 3 hours of time for each paper.

Paper I – Constitution, Civil Law, and Procedure (Total Marks – 100)

Constitution of India
Code of Civil Procedure, 1908
Transfer of Property Act. 1882
Indian Contract Act, 1872
Specific Relief Act, 1963
Limitation Act, 1963

Paper II – Article and Summary Writing (Total Marks – 100)

Writing on Social Issue – 20 marks
Writing on Legal Issue – 20 marks
Precis Writing – 20 marks
Translation (Hindi to English) – 20 marks
Translation (English to Hindi) – 20 marks

Paper III – Local Laws, Criminal Laws, and Procedure (Total Marks – 100)

MP Accommodation Control Act, 1961
MP Land Revenue Code, 1959
Indian Evidence Act, 1872
Indian Penal Code, 1860
Code of Criminal Procedure, 1973
Negotiable Instruments Act, 1881

Paper IV – Judgement Writing (Total Marks – 100)

Framing of Issues – 10 marks
Framing of Charges – 10 marks
Judgment/ Order (Civil) Writing – 40 marks
Judgment/ Order (Criminal) Writing – 40 marks

So, if you analyse the syllabus carefully, you’ll find that Papers I and III will test your theoretical legal knowledge, whereas Papers II and IV will test your practical legal knowledge. In the practical aspect, the candidates are supposed to write about certain legal issues, translation, framing of issues, and charges, etc. Furthermore, for Papers I and III, the candidates are required to equally study all the subjects mentioned in the syllabus. In contrast, in Papers II and IV, the marks are bifurcated as per the topics, so that you already know the high scoring part, where you will certainly have to pay more attention and the less scoring part requires comparatively less attention.

Interview

There is no defined syllabus for the interview or viva-voce. While studying for prelims and mains, you actually cover all the major subjects of law, along with studying and understanding the practical skills that are required in a courtroom. Basically, the interview is the process of testing your overall legal knowledge and communication skills. Furthermore, the interviewer will be more interested in understanding the ways or approaches that you’ll follow in the courtroom to handle unpredictable situations.

No one knows what exactly will be asked in the interview, but you must be prepared to answer both the legal and situation based questions with full confidence. The interview round is of 50 marks.

Publication of final merit list of the Madhya Pradesh Judicial Services exam

It must be noted that the publication of the merit list is the last stage of the MP Judiciary Service exam, and this process takes place when all the stages – Prelims, Mains, and interview are completed. Now, you must always remember that the merit list does not count the marks of the Prelims exam.

Even if you get just passing marks in the Prelims exam, it is more than enough. The main aim of passing the Prelims is just to be eligible for the Mains exams and nothing else. Furthermore, mains and viva voce are equally important stages of the MPCJ Exam. As soon as you pass every step, you’ll reach the next level. But, rather merely passing the Mains exams, you should focus on getting good marks. This is because at the end, the merit list will be prepared by calculating the marks from the Mains exam and interview. Therefore, the most important stage of the MPCJ Exam is the Mains level because if you pass this exam with a good score, you’ll ultimately get entry in the interview round and which will help you in getting a higher position in the merit list.

When to start preparing for the MP Judicial Services exam

The answer to this question cannot be the same for everyone. The very first requirement for appearing in this exam is that you must be a law graduate. Now, there are two ways through which you can complete your law degree. The very first and most demanded is the 5-year integrated law course, and the other is the 3-year LL.B. Both are good options, but if you are sure from the very beginning that you want to pursue law, a 5-year integrated course will be more suited for you than doing 3 years of graduation and then opting for 3 years of LL.B.

Let’s move ahead and discuss when the correct time is to start preparing for the MP Judicial Services exam. We’ll first begin with those pursuing 5 years LL.B. and then move ahead with those pursuing 3 years LL.B.

Students pursuing integrated LL.B. course

Students pursuing 5 years B.A. LL.B., BBA LL.B., etc. have ample time to select their field of interest and then proceed ahead with the career option that suits them best. Now, from the first year of law school, students are being taught different legal subjects, eventually you start knowing your likes and dislikes. Every law school allows their students to go for internships during semester breaks. This is one such time and opportunity where students can explore different fields of law and determine their interest.

Till the third year of your law school, you must experience different things starting with litigation, corporate world, government, judiciary and its better to have knowledge of all these career options. At the end of three years, you will be sure about the career option you wish to select. If your interest is in the judiciary, then from your fourth year, you can start preparing for the same. For this exam, you have to start focusing on the legal subjects that are being taught in your college.

You will have ample time to cover the whole syllabus in the course of two years and then revise it. The correct approach is to study the syllabus as a whole rather than studying for the Prelims first and then switch to the syllabus of the Mains exam. Two years are sufficient for you to cover the whole syllabus because it will be the legal subjects that you have already studied in your college and you have a general idea of the subjects. So, for those enrolled in the 5-year integrated course, it is important to explore the available options in the first three years and then, if you are sure of the judiciary, start preparing from the fourth year.

Students pursuing 3-year LL.B. course

For those pursuing a 3-year LL.B. course, you do not have ample time to explore and decide your interest. You can use the first year of your law school to try different things and identify your interests. Even a year’s time will be enough for you because, unlike the students pursuing 5 years LL.B., you will have the advantage of studying the major legal subjects from 1st semester. So, it will be easy for you to determine your field of interest even in one year.

In the same way, when you are sure that you really want to build a career in the judiciary, you can certainly start studying from the second year and you will have ample 2 years time to finish the syllabus and revise it before the exams. Study all the subjects, be it of Prelims or Mains. Don’t wait for the Prelims result and then start studying the Mains syllabus as the subjects are almost same; only the level of questions varies. Although the Madhya Pradesh Judicial Services exam is conducted in three stages, we have to be prepared for all the stages.

MPCJ exam preparation strategies

The exam itself is not that difficult, but it becomes difficult due to the vast syllabus and the level of competition. So, let’s understand the preparation strategy for all the stages of the Madhya Pradesh Judicial Service exam.

Strategy for MPCJ Prelims

Now, we’ll be discussing a strategy that will help you clear the Prelims Exam. Moreover, we will also understand the subject breakdown along with the marking scheme that is generally seen in the previous years’ question papers of the MPCJ Prelims Exam.

Part – I

Subjects	Marks
Constitution	10 Questions
Code of Civil Procedure, 1908	15 Questions
Transfer of Property Act, 1882	7 Questions
Indian Contract Act of 1872	8 Questions
Specific Relief Act of 1963	6 Questions
MP Accommodation Control Act of 1961	5 Questions
Limitation Act, 1963	4 Questions
MP Land Revenue Act of 1959	5 Questions
Indian Evidence Act of 1872	15 Questions
Indian Penal Code, 1860	15 Questions
Code of Criminal Procedure, 1973	15 Questions
Negotiable Instrument Act, 1881	5 Questions

Part – II

Topics	Marks
General Knowledge	20 Questions
Computer Knowledge	10 Questions
English Knowledge	10 Questions

The Prelims exam is divided into two parts, the first part consists of twelve law subjects, and the other parts includes general knowledge, computer, and English. Now, first you need to check the syllabus and make a list of subjects that you are required to study. Also, you must do a trend analysis and see which subjects carry more weightage. Among the twelve subjects, you’ll see that 75% of the paper will include only five subjects, the Indian Penal Code (15 marks), the Indian Evidence Act (15 marks), Code of Criminal Procedure (15 marks), Code of Civil Procedure (15 marks), and the Constitution (10 marks). So, you must focus on these subjects first.

Now, after completing these major subjects, you can start the other law subjects. Remember, when you start preparing two years before the exam date, you have ample time. So, from the very first day, think of the big picture and also start preparing for Mains. This means that you must study and understand all the subjects properly rather than just memorizing them in order to pass the Prelims exam. This will be the wrong approach. Therefore, after completing the major subjects, you can take up the Indian Contract Act of 1872, Specific Relief Act of 1963, Limitation Act, and Negotiable Instrument Act, 1881. First, start with the Contract Act and Specific Relief Act as they carry 8 and 6 marks, respectively, and then move on to the Limitations Act and Negotiable Instrument. These two subjects carry a weightage of 4 and 5 marks respectively.

Now, you are only left with the Transfer of Property Act, 1882 and MP land laws. So, this will be the correct time to study the MP land laws, as these subjects are comparatively smaller and you will be able to cover them in less time along with revising the already studied subjects. With this, you’ll be able to complete Part-I that carries 110 marks for the entire paper. Now, you will be left with Part – II that carries 40 marks in total. Here, General Knowledge will carry 20 marks, Computer knowledge and English will carry 10 marks each. So, GK is a subject that does not have a defined syllabus, it will have 8 marks for static GK and 12 marks are allotted to MP specific GK questions. The ideal approach should be to study the MP specific GK first and then switch to static GK. Moreover, GK actually has a never-ending syllabus, and for scoring average marks in the same, you will have to inculcate the regular habit of staying updated with the daily trends. Now, you are only left with the basic Computer and English part. These are the subjects where you can easily score 7-8 marks with little effort and understanding.

Strategy for MPCJ Mains

The strategy for mains will be different, as here you will be judged based on your understanding and practical knowledge as well. So, here we’ll discuss the strategy to write proper answers along with certain other important things.

Paper – I (Constitution, Civil Law, and Procedure)

Subject	Marks
Constitution	16 Marks
Code of Civil procedure, 1908	16 Marks
Indian Contract Act, 1872	16 Marks
Transfer of Property Act, 1882	16 Marks
Specific Relief Act, 1963	16 Marks
Limitation Act, 1963	08 Marks
Other laws	12 Marks

This is the most scoring paper if you follow a smart study pattern. Constitution is a vast subject, and therefore, it carries 16 marks, which is understandable, but, subjects like Transfer of Property Act and Specific Relief Act are small subjects, and allotting 16 marks for these subjects is a huge number. Here, you can actually study smartly. Start with the Constitution, CPC and Contract Act, as these are lengthy subjects and carry huge weightage. Then take up the Specific Relief Act and Transfer of Property Act, as these are comparatively small subjects but again carry huge weightage. Furthermore, the Constitution is one such subject that you have been studying for a very long time if you have prepared for CLAT UG or other such entrance exams. So, this will be an easy subject for you, as it has been observed that only basic questions are asked from the Constitution.

Paper II – Article and Summary Writing

Paper-II can prove to be the most scoring one for you, as you can actually get full marks in translation, but it requires practice. For this, you are required to be well-versed with both Hindi and English words. This will eventually come with practice and for this you will have to start preparing at least a year ago. Try solving previous years’ question papers, always search for the Hindi translation of every word you come across because this is a natural process that will come with practice. It is not something that you can simply learn and go with.

The same is the case with writing on social and legal issues; you must keep up with the trending issues of the 9-10 months before the exam. Also, merely knowing about the recent issue is not enough; rather you must know its history, legal, social, and political impacts, its legality, etc. This means you must have complete knowledge of everything. Eventually, this is also not something that you can learn and go; start preparing for it by writing at least two essays in a week on trending social and legal issues. Through this, by the time of your exams, you will already have a lot of essays written by you. This will help you inculcate a writing habit as well as provide knowledge.

Paper III – (Local Laws, Criminal Laws, and Procedure)

Subjects	Marks
MP Accommodation Control Act, 1961	16 Marks
MP Land Revenue Act, 1959	16 Marks
Indian Evidence Act, 1872	16 Marks
Indian Penal Code, 1860	16 Marks
Code of Criminal Procedure, 1973	16 Marks
Negotiable Instrument	08 Marks
Other laws	12 Marks

This is the main paper where you have to start studying from the Prelims as here you’ll get the major criminal subjects along with the Madhya Pradesh land laws. You are supposed to prepare the major three criminal subjects properly and in depth, the Indian Evidence Act, 1872, the Indian Penal Code, 1860; and the Code of Criminal Procedure, 1973. Now, you can act smart while studying the local land laws, as MP Land Revenue Act, 1959 is a vast subject that carries 16 marks. So ideally, you should study this after completing the major criminal subjects. Furthermore, MP Accommodation Control Act, 1961 is comparatively smaller topic and it still carries the same 16 marks weightage.

Studying local laws can be easy and difficult at the same time, difficult in the sense that there are various provisions related to a particular state that you are supposed to remember. In contrast, they are easy as you only have to study the bare act thoroughly; no additional reference book is required.

In the Madhya Pradesh Judicial Service Exam, a decent weightage is given to MP land laws, and if you study them with dedication for 20-30 days, you’ll be able to cover the whole land laws. The only thing required is revision, and then you can easily answer the questions by applying simple logic. The questions related to land laws are basic and easy.

Paper IV – Judgement Writing

Topic	Marks
Judgement/ order (civil) writing	40 marks
Judgement/ order (criminal) writing	40 marks
Framing of charges	10 marks
Framing of issues	10 marks

After passing this exam, you will enter the judiciary, where you’ll give judgements, and this is a very important role that someone can ever play. For this, it is important to judge your decision making skills. The judgement writing paper evaluates your understanding of the facts, law, court procedure, and the judgements you make. Judgement can be different for different people and depends on the view of a person on a particular matter; therefore, when a judge passes an order, it is done by properly understanding the facts, applying the law, and then reaching a conclusion.

In the judgement writing paper, the students are asked to write a civil or criminal judgement by evaluating the evidence and issues. This is solely to understand the analytical ability of an individual and to determine whether he or she is fit for delivering justice to the people.

The basic tip to score well in this paper is to avoid harsh English and write easy to understand English words that can be understood by anyone. Try to use short sentences and refrain from using repetitive words or sentences.

Books to refer for the Madhya Pradesh Judicial Services exam (MPCJ)

Preparation for each level of the MPCJ Exam will require you to refer to a different set of books. Now, it is not important for you to refer to all the books that are recommended. We try to make everything easy for you, and therefore, we will be suggesting the books that, according to us, will help you in your complete preparation of the MPCJ Exam. From the list of recommended books, you can select the ones that you find important and relevant to the study pattern that you follow. Furthermore, the books that we have mentioned here in this article are not promotional.

Books for MPCJ Prelims preparation

In the Prelims exam, you are asked questions on the basic legal subjects, and other subjects such as General Knowledge, Computer awareness, and English language. Therefore, here are a few books that you can use as references while preparing for the MPCJ Prelims Exam:

Subject	Name of the Books	Author
Constitution	Introduction to the Constitution of India	Durgadas Basu
Civil Procedure Code	Civil Procedure (CPC) with Limitation Act, 1963	C.K.Takwani (Thakker)
Indian Contract Act	Property Law	Poonam Pradhan Saxena
Specific Relief Act	Law of Contract & Specific Relief	Dr Avtar Singh
Limitation Act	Bare Act	J.D. Jain
Indian Evidence Act	Law of Evidence	KD Gaur
Indian Penal Code	The Indian Penal Code	KD Gaur
Code of Criminal Procedure	Criminal Procedure Code	Ratanlal & Dhirajlal
Negotiable Act	Introduction to the Law of Negotiable Act	P L Malik
Basic Book	MP Civil Judge Exam	Dr. Jayantilal Bhandari

Books for MPCJ Mains preparation

Basically in the Mains exam, your whole knowledge of law is tested; apart from the legal subjects that you have studied in the Prelims exam, the judgement and essay writing skills of the candidate are also checked. Therefore, we have listed some books that you can refer while studying for the MPCJ Mains exam:

Subject	Name of the Book	Author
Indian Penal Code	Commentary on the Indian Penal Code	Gaur KD.
Indian Penal Code	P.S.A. Pillai’s Criminal Law	Rattan Lal and Dhiraj Lal
Criminal Law	RV Kelkar’s Lectures on Criminal Procedure	Dr. K.N. Chandrasekharan Pillai
Indian Evidence Act	The Law of Evidence	Avtar Singh
Indian Evidence Act	The Law of Evidence	Batuk Lal
Law of Torts	The Law of Torts	Rattan Lal and Dhiraj Lal
Negotiable Instrument Act	The Negotiable Instrument Act	O.P. Faizi
Judgement Writing	Singhal’s An Insight Into Judgement Writing	Arjinder Kaur and Robin Jeet Singh
International Law	International Law and Human Rights	Dr H.O. Agarwal
International Law	Charter of the United Nations and Statute of the International Court of Justice	UN Chapter
Administrative Law	Administrative Law	Dr U.P.D Kesari
Hindu Law	Modern Hindu Law	Paras Diwan and Peeyushi Diwan
Muslim Law	Muslim Vidhi	Aqil Ahmed
General Mains Guide	Madhya Pradesh Civil Judge (Mains) Exams. Guide	B.S. Khetrapal, Shefali Mishra
General Mains Guide	Guide to Judicial Service Mains examination – Vol. 1	Dr P.K. Pandey, Dr V.S. Tripathi

Books for MPCJ Interview preparation

Here is the list of a few books that you can refer to while preparing for the MPCJ Interview or Viva-Voce:

Title	Author
Mastering Interviews and Group Discussions	Dinesh Mathur
Cracking the Code to A Successful Interview	Evan Pallett
Smart Answers to Tricky Interview Questions	Rob Yeung

Salary and allowances after clearing the Madhya Pradesh Judicial Services exam (MPCJ)

There is an interesting fact about this exam, and that apart from the salary, it is the allowances that fascinates an individual to appear for this exam. We’ll be talking about both the salary and the allowances that a civil judge is entitled to.

Salary of MP Civil Judge

The MP Civil Judge is a Class II Gazetted Officer. Therefore, the salary of a Civil Judge, Junior Division (Entry Level) is Rs. 77,480 – 1,36,520. Furthermore, the salary of a Civil Judge, Junior Division Grade-II, 1st ACP will vary between Rs. 92,960 and Rs. 1,36,520 per month. These salary figures are as per the latest amendment rules of 2023. Moreover, the salary figure keeps on revising as per the notification of the pay commission. So this is the basic pay of a Civil Judge; it does not include any other allowances.

Allowances of MP Civil Judge

A civil judge is entitled to many allowances that are mentioned below:

House Rent Allowances

The House Rent Allowances (HRA) is not fixed for all civil judges. It is calculated depending upon the location where an individual is posted. Furthermore, the amount of HRA is also revised based on the recommendations of the pay commission.

Dearness Allowance (DA)

This is the cost of living adjustments and it is calculated as per the consumer price index. Furthermore, the cost of DA is revised in January and July every year.

Travel Allowances

Wherever a Civil Judge travels for official purposes, he is entitled to get travel allowance for the same.

Medical Allowances

All the medical expenses of a Civil Judge and his family members are entitled to reimbursement.

Leave Travel Allowances (LTA)

There are instances when the Civil Judges have to travel during official leaves, and they are entitled to LTA for the same.

Pension

Civil Judges are entitled to get pension after their retirement. The pension amount is calculated based on the last drawn salary.

Training and probation of Madhya Pradesh Civil Judge

It is important for all the candidates selected for the post of Madhya Pradesh Civil Judge to undergo the training period as per the Madhya Pradesh Judicial Services (Recruitment and Conditions of Service) Rules, 1994. The training will be conducted in two phases, one is the field training course and other is the institutional training course. Moreover, the field training will be held at the place of posting for the Civil Judge. Whereas, the institutional training will be conducted at Madhya Pradesh State Judicial Academy or any other place as prescribed during that time.

Furthermore, the MP Civil Judge will have to serve a probationary period of 2 years.

The tenure of this training course will be for two years, i.e, 24 months or 104 weeks. Furthermore, the breakup of the training programme, as per the official notification of Scheme of training for Civil Judge 2022, is mentioned as under:

Phase	Nature of Training Course	Break-up (duration in weeks)
First Phase	Field Training	8 weeks
First Phase	Institutional Training Course	8 weeks
Second Phase	Field Training	36 weeks
Second Phase	Institutional Training Course	8 weeks
Final Phase	Field Training	36 weeks
Final Phase	Institutional Training Course	8 weeks

Job profile and responsibilities of Madhya Pradesh Civil Judge after training and probation

The Civil Judge’s job profile can be determined as a presiding authority over all the civil cases in the court. He is responsible for ensuring justice to the people of Madhya Pradesh and making sure that all civil cases are decided while following the proper court procedure in an impartial manner. The roles and responsibilities of the Madhya Pradesh Civil Judge after training and Probation will include the following:

Hearing civil matters – The Civil Judge is responsible for hearing and adjudicating all civil matters related to property, contracts, etc.
Conducting proper trial – It is the responsibility of the Civil Judge to gather evidence, hear witnesses, and conduct trial accordingly. Furthermore, he is also responsible for delivering fair and impartial judgement.
Maintaining decorum – The Civil Judge is required to maintain decorum in the courtroom at the time of hearing or trial.
Writing Judgement – The Civil Judge after hearing the case, and gathering evidence, is also responsible for writing detailed judgement, providing the legal reasoning established with the judgement. This is the reason why judgement writing is a compulsory subject in the Mains Exam of MPCJ.
Enforcing the order of the court – It is also the responsibility of the Civil Judge to enforce the order of the courts, including an order, summons, etc.
Interpretation of Law – The candidate selected for the position of Civil Judge is expected to have proper knowledge of law so that he or she is able to properly deliver judgement while interpreting the law.
Take part in Legal Educational Programs – In order to stay updated with all the legal updates, the Civil Judge is required to take part in the legal educational programs.

What is the application procedure of the MPCJ exam

The online application forms for the Madhya Pradesh Judiciary Exam can arrive unexpectedly at any time in the year. This means there is no specific date or month for the release of MPCJ application forms. Generally, the Prelims exam is conducted after a month of the release of application forms, but it is not advised to wait until the last date of form filing. Therefore, you must priorly have an idea about the documents required, fee structure, filing procedure, etc. Now, we’ll be understanding the whole application procedure of the MPCJ exam that will include the application process, documents required, fee structure, along with the steps to pay the fees in order to make things much clearer and easier for the Madhya Pradesh Judiciary aspirants.

The application process is online, and registration is done by the Madhya Pradesh High Court. So, as the registration process starts, you must fill out the form as soon as possible. Make sure to have a decent internet connection to avoid any kind of interruption while filling the registration form. Furthermore, you must always keep the required documents ready before initiating the process.

Documents required for the MPCJ Exam

Here are some of the documents that you will require while filling out the MPCJ application form:

A valid and correct email address
Mobile Number
Graduation Marksheet
Passing Certificate of the Graduation
ID Proof (Aadhar Card, Pan Card, Voter ID card, Passport, etc)
Category Certificate (SC, ST, OBC)
Passport Size Photograph
Signature

Make sure to provide the correct information and documents while applying for the MPCJ Exam because even a minute mistake might lead to the rejection of your application.

What is the application fee for the MPCJ exam

The application fee is different for unreserved and reserved category students. Also, the fee structures vary for MP and Non-MP candidates. If you are a general category candidate who does not belong to MP, you will have to pay INR 1,047.82 for the Preliminary examination. Furthermore, candidates belonging to reserved categories such as SC, ST, OBC and anyone who is a native of MP, will have to pay INR 647.82 as the fee for the Preliminary Examination. In contrast, the fees for the Mains Exam are the same for everyone, which is INR 283.20.

Tabular representation of fee structure of the MPCJ exam

Here is a tabular format of the fee structure that a candidate needs to pay for the MPCJ Exam:

Category	Examination	Fees
Unreserved candidates and/or Applicants who are not the natives of Madhya Pradesh	Preliminary Exam	INR 1,047.82
Reserved Category (OBC, SC and ST category who are the natives of Madhya Pradesh and Divyang applicants)	Preliminary Exam	INR 647.82
All Applicants	Main Written Examination	INR 283.20

Tabular representation for the format of documents to be submitted in the MPCJ Exam

There are certain documents that you need to submit in the specified format as shown below:

Scanned Images	Size	Dimension	Format
Photograph	20kb – 50kb	200 x 230 Pixels	.jpg or .jpeg
Signature	10kb – 20kb	140 x 60 Pixels	.jpg or .jpeg

Tabular representation of the details that you need to fill in MPCJ Application form

Below mentioned are some of the details that you will be required to fill out in the MPCJ application form:

Name	Mention your full name as mentioned on your Class X certificate
Date of Birth	Mention your date of birth in the format DD/MM/YYYY as mentioned in your Class X Certificate.
Gender	Mention Male/Female/Transgender
Mobile Number	Enter the Correct and Valid mobile number (10 digits)
Address	Mention complete address
Nationality	Choose the correct nationality, i.e. Indian Nationals
Pin code	Mention pin code of your area
State	Enter your state name
District	Mention your district (if any)
Town/City	Enter the name of your town/city with the correct spelling
Language Known	Mention the languages you know how to speak, write, and read
Category	Mention your category correctly, i.e., General, OBC, SC, ST

What are the steps to fill the MPCJ application form

The whole application form filling process can be covered in four different stages, and we will be covering each stage one by one:

Registration: Stage 1 of MPCJ application form

The very first step is to visit the official website of the MP High Court – https://mphc.gov.in.
Now, on the home page, you will find the option which says, click here – online application forms/ admit card tab.
You need to click on that option and enter the requested details, such as name, email ID, mobile number, and date of birth. Enter all the information correctly.
After that, you will be asked to enter the captcha, and then you can proceed ahead by clicking on the submit button.
Now, you will automatically receive the login credentials on your registered mobile number.

Filling in the required details: Stage 2 of MPCJ application form

Now, you need to login to the MP High Court website using the credentials that you have received on your mobile number.
In order to move ahead with the application procedure, you will be required to enter certain details, such as personal, educational, and parental.
Make sure to save every page of the details that you have filled in.
If you wish to make any changes to the application form, you can do that before submitting.
In case of any correction or change in information after submitting the application form, you must immediately inform the concerned authorities.

Document uploading: Stage 3 of MPCJ application form

After filing the application form, the next step is to submit the required documents in the specified format, as mentioned below:

Candidate’s passport size photograph is required to be submitted in JPG or JPEG format. Make sure to keep the correct dimensions as 200 x 230 pixels and the image size must be between 20KB to 50KB.
Scanned picture of the candidate’s signature with a black ink pen on a white paper is required to be attached in JPG or JPEG format. Make sure to keep the correct dimensions as 140 x 60 pixels and the image size must be between 10KB to 20KB.

Payment of application fee: Stage 4 of MPCJ application form

Now the last step in filing the application form is the payment of the application fee.

Here, you will be required to submit the fee via online mode, using UPI, net banking, or debit card.
After successful submission of the fee, you are only required to click on the submit button and you’ll be done with the application process. Until the fee is paid successfully, make sure not to refresh the page in between.

How to check results of the Madhya Pradesh Judicial Services exam (MPCJ)

As we know, the exam is conducted in three stages, and therefore, we will understand the procedure for checking the results of each level. Candidates who pass the Prelims Exam are eligible to appear for the Mains exam. Furthermore, the candidates passing the Mains exam will be appearing in the Interview, and the merit list of the selected students is prepared on the basis of the marks of Mains and Interview. Number of students selected for MPCJ in a year depends upon the number of vacancies available in the particular year.

How to check the Prelims and Mains results for MPCJ

Here are the steps that you can follow for downloading the MPCJ Examination result:

As this exam is conducted by the MP High Court, so for checking the result, you’ll again have to visit the MP High Court’s official website, i.e. https://mphc.gov.in.
Click on the latest updates and notifications option.
Now, when the results are out, you’ll find the “MP Civil Judge Final Result” link in the notification menu.
After clicking on that option, a new screen will pop-up where you will be required to press Ctrl F and enter your roll number.
Now, you can simply download this result as a PDF and save it in your laptop or PC.

Factors affecting MPCJ cut-off

The cut-off marks of the MPCJ are not similar every year, whereas they keep changing every year depending certain factors discussed below:

Number of candidates – The number of candidates appearing for an exam determines the difficulty level of the exam. The more people will appear in the exam, the more will be the cut-off. On the other hand, if less people appear for the exam, then eventually the cut-off for that particular year will be less.
Number of vacancies – The number of vacancies in a particular year also varies depending upon the requirement for Civil Judges at that time. It can be easily understood that the more vacancies, the less will be the cut-off.
Level of the question paper – Level of the question paper depends upon the difficulty. This is also one of the factors that affects cut-off because if the paper will be difficult then students will ultimately score less and eventually the cut-off will be less.

Madhya Pradesh Judicial Services exam (MPCJ) final merit list

Preparation of merit list is the last stage of the MPCJ Exam that takes place after the interview. Number of students appearing in the merit list depends upon the number of vacancies. The basic requirement for appearing in the merit list is that you must score more than the cut-off in your mains exam. There are certain factors that determine the merit list, such as the number of candidates appearing for the exam, difficulty level of the question paper, number of vacancies and the category from which the candidate belongs.

Furthermore, in order to check the merit list, you again have to go to the MP High Court’s official website and you will find the MPCJ Merit list link of the final merit list in the notification tab. You can simply click on it and check the merit list.

How to check cut-off marks for the MPCJ exam

Cut-off marks are the minimum required marks that you need to score in order to proceed to the next stage. As the exam is conducted by the Madhya Pradesh High Court, the cut off list and results are also declared by the MP High Court itself. If you score above the cut-off marks, you must be sure that you will definitely pass the exam and appear for the next stage. Follow the steps mentioned below to check the cut-off marks of the MPCJ Exam:

Firstly, you need to visit the official website of MP High Court (https://mphc.gov.in).
In the notification tab, you’ll find a link for the “Result of online Prelims of M.P Civil Judge Class – II (entry level) exam – 2023”.
Here, you will find the answer key, and at the end of the pdf, the cut-off marks will be mentioned.
You can also download the file and keep it for future reference.

What to do after the MPCJ Prelims or Mains exam

After the Prelims or Mains exam, you have a minimum of one month’s time before the actual results are out. Now, you should never waste that time. If you’re confident enough that you’ll clear the Prelims exam, then without waiting for the results, you must start focusing on the preparation of Mains. If you are not sure whether the result will be in your favour or not, still you should not waste time, rather start preparing for Mains. If the result comes out to be in your favour, it will be a winning position for you as you have already started preparing for the Mains exam. In case the results are not in your favour, still you should not lose hope, and the preparation that you have already started will help you in attempting the exam in the next year. With this approach, the chances of you passing the exam next year will increase as you will have a lot of time to study and have already started with the preparation. You must always understand that knowledge never goes for waste.

The same goes for the preparation after the Mains exam, if you’re sure that you’ll pass the exam then start preparing for the Interview. Even if you are not sure about the results, still you must start preparing. There is no harm in it, because ultimately, you will be studying the same legal subjects, there is nothing special that you’ll study for an interview that won’t be useful for you in the future.

Next steps after MPCJ Prelims and Mains Results are out

As soon as the MPCJ Prelims results are out, the candidates who pass the exam become eligible for appearing in the Mains exam. This consists of four papers of 100 marks each. You will be asked questions on civil law, criminal law, judgement writing, etc. Furthermore, if you score more than the cut-off marks in the Mains exam, you will be said to have cleared the exam. Such students will be called for an interview round, which is also known as viva-voce. The interview is conducted for a total of 50 marks. After successful conduction of the interview stage, a merit list is prepared on the basis of the marks of both Mains and the Interview. Students whose name appears in the merit list are the selected candidates for the post of Civil Judge.

Tips and tricks to pass the Madhya Pradesh Judicial Services exam (MPCJ)

Madhya Pradesh Judicial Service is regarded as one of the most difficult judicial service state exams. With the right approach, strategy, and consistency, you can clear this exam in a single attempt. Memorizing the concepts can only help you pass the Prelims, but with this approach, it will become very difficult for you to clear the mains level. You must understand the concepts, as in this paper, you get both theoretical and practical based questions which you can only solve if you actually know the concepts. Let’s discuss further and look at some tips and tricks that will help you in passing the Madhya Pradesh Judicial Service exam.

Be consistent

Consistency is very important as you have a vast syllabus to cover, and it is a human behavior that we have a habit of delaying things. Now, if you skip your two day study schedule, then naturally you won’t be able to study with the same level of dedication on the third day. Once you start skipping your study schedule, it’s not just one day, it becomes one month and you won’t even realise it. So, if you really want to achieve something, you must actually work hard for it. Taking a break for a day is fine; everyone needs a break, but remember to come back to the old schedule the next day rather than delaying it.

Start by making a personalised study plan

Hard work is important, but smart work is also important. Before starting your preparation, you must be aware of what and how to study, and for this making a personalised study plan or time table is very important. It is something that you can’t copy as everyone has different skills, interests, and capabilities, and it will be better to make a personalised study plan keeping your likes, dislikes, and interests in mind. Once you have a plan ready, you can start studying accordingly, and it is not a hard and fast rule that you will always have to follow the same plan rather you can change or edit it whenever required.

Choose the correct sources

There is no better source than bare Acts for passing any legal competitive exam. All the laws are mentioned in the bare acts; you must have the knowledge to interpret it. Books can never be the alternatives to bare acts; rather, books are only there to make you understand the concept better with clear explanation, examples, and case laws. Therefore, instead of purchasing different books, you must read the bare Acts and once you are done with this, you can refer to books for better understanding.

Attempt all the questions

There is no negative marking in the Madhya Pradesh Judicial Service exam and this is the major benefit. Now, when there is no negative marking, there is no risk in attempting all the questions. The cut-off goes really high, and the more questions you attempt, the higher are your chances of getting selected. Even if you are completely clueless about any question, even then there is no harm in answering the question by selecting the most relevant option.

Previous Years Cut off of MPCJ (2022 – 2018)

The cut-off marks for Prelims and Mains are published separately on the Madhya Pradesh High Court, generally after a month of successful conduction of the exam. You need to score above the cut-off marks to be eligible for the next stage.

MPCJ Prelims Cut-off

Cut-off marks of the previous year’s Prelims Exams are mentioned below in year wise format:

2021 Prelims Cut-off

Check out the cut-off of the Prelims exam that was held in 2021 here:

Category	Cut-off Marks
UR	125 and 90 (PH)
OBC	108
SC	94 and 86 (PH)
ST	83

2019 Prelims Cut-off

Check out the cut-off of the Prelims exam that was held in 2019 here:

Category	Cut-off Marks
General (Unreserved)	118
OBC (Other backward classes)	113
SC (Schedule caste)	94
ST (scheduled tribe)	82

2018 Prelims Cut-off

Check out the cut-off of the Prelims exam that was held in 2018 here:

Minimum Qualifying Marks	Cut-off Marks
General (Unreserved)	121
OBC (Other backward classes)	116
SC (Schedule caste)	101
ST (scheduled tribe)	82

MPCJ Mains cut-off

Cut-off marks of the previous year’s mains exams are mentioned below in year wise format:

2019 Mains cut-off

Check out the cut-off of the Mains exam that was held in 2019 here:

No. of Posts	Cut-off Marks
General (Unreserved)	211.5
OBC (Other backward classes)	200.5
SC (Schedule caste)	181
ST (scheduled tribe)	180.5

2018 Mains cut-off

Check out the cut-off of the Mains exam that was held in 2018 here:

Category	Cut-off Marks
General (Unreserved)	222
OBC (Other backward classes)	212
SC (Schedule caste)	183.5
ST (scheduled tribe)	180

Madhya Pradesh Judicial Services exam centres

The exam centres for the Madhya Pradesh Judicial Services Exams are in the following cities of Madhya Pradesh:

Jabalpur
Bhopal
Indore
Gwalior
Sagar
Satna
Ujjain

Frequently Asked Questions (FAQs) on Madhya Pradesh Judicial Services Prelims exam

How can I prepare for the MPCJ Prelims exam?

There are a few subjects, such as the Constitution, the Indian Evidence Act 1872, the Code of Criminal Procedure, 1973, that carry more weightage in the Prelims exam. So, you must first check the syllabus properly and then start preparing, focusing first on the subjects that hold more weightage.

Is it important to solve mock tests before appearing for the Prelims exam? If yes, how many mocks shall I solve?

Yes, it is important to solve mock exams before the final exam as to understand the pattern of the question paper and to track the candidate’s performance and preparation level. No one can actually tell the exact number of mocks that a student must solve before the exam; it depends on how many mocks you can solve as per your ability. The more mocks you solve, the more it will be beneficial for you.

What is the fee charged for appearing in the MPCJ Prelims exam?

The unreserved/Madhya Pradesh candidates will have to pay Rs. 1,047.82 along with the application form. The reserved category students are required to pay Rs. 647.82.

Is there a particular method to follow for preparation of the MPCJ exam?

There is no particular method to follow, but there are certain things that can be done for effective preparation. Starting with the syllabus, you should first check it thoroughly and understand the marking scheme. After that, you can go through the previous years’ question papers, understand the pattern of the exam and start studying accordingly. The subjects having more weightage shall be studied first, and so on. Also, never refrain from solving previous years’ question papers or mock tests as it will help you to track your progress.

Should I start preparing for Mains after successfully clearing the Prelims exam?

No, the ideal strategy should be that you must start preparing for Mains from day one of your preparation, as the subjects asked in both the exams are the same. Questions asked in Mains are difficult questions than Prelims. So, if you start preparing for Mains, you’ll be simultaneously preparing for Prelims as well.

How long will the Prelims exam last?

The MPCJ Prelims Exam will last for a total of two hours, during which you will be required to solve 150 questions, carrying one mark each.

Is the Prelims exam judiciary paper pattern same for every state?

No, as the judiciary exams are conducted by the High Court of every state, and therefore, the pattern of the Exam varies from state to state. You can always check the pattern of any state’s exam by visiting the website of the respective state’s High Court. For MPCJ, students can find the details here – https://mphc.gov.in/exam-details.

When will the MPCJ Prelims exam take place in 2023?

The notification for the MPCJ Prelims Exam for 2023 is not out yet, but we can expect the notification to be out in a few days.

Frequently Asked Questions (FAQs) on Madhya Pradesh Judicial Services Mains exam

Can you provide some tips for writing answers in the MP Judicial Service exam?

Answer writing is the most crucial aspect of the Mains exam. There are times when you know what to write but don’t know how to write and this might place you in difficult situations. So, always remember these tips while writing answers in the MP Judicial Service Exam:

Start your answer with an introduction, history of the topic, and purpose.
Always remember to mention the relation of a particular Section of law with your topic or answer, along with mentioning the applicability of the Section.
Moreover, add a conclusion at the end of your answer to give it a proper ending.
For answers that do not include any legal provisions, you can simply write the answer by making a proper synopsis. Start with the introduction, then add a few sub-headings related to the answer, and end with a conclusion.

What is the application fee for the MPCJ Mains exam?

The application fee for the Mains Exam is Rs. 283.20.

How should I practice essay and judgement writing?

It is very important for all the MPCJ students to practise essay writing and judgement writing as in the Mains Exam, Part-III and Part-IV are specifically dedicated to essay and judgement writing respectively. For this, you can select random trending legal topics and start writing an essay on it. Try to write one or two essays in a week. For judgement writing, you can take any old case or legal situation, and practice writing a judgment on it. The best way to practice judgement writing is to solve past year question papers.

How many papers are there in the MPCJ Mains exam?

If you’ll go through the syllabus, you will find that the syllabus for the MPCJ Mains Exam is divided into 4 papers. They are:

Constitution, Civil Law, and Procedure
Article and Summary Writing
Local Laws, Criminal Laws, and Procedure
Judgement Writing

What is the total marks of the MPCJ Mains exam?

As there are four papers in the MPCJ Mains Exam, and each paper is of 100 marks. Therefore, the exam contains 400 marks in total.

What is the time duration of the MPCJ Mains exam?

The duration of the MPCJ Mains Exam is 3 hours for each paper.

Are all the four papers of the MPCJ Mains exam conducted on the same day?

No, the candidate has to give the first and second papers on one day and the third and fourth papers on the next day.

Frequently Asked Questions (FAQs) on Madhya Pradesh Judicial Services Interview or Viva-Voce

How should I improve communication skills for the Interview round of MPCJ?

The easiest way is to take mock interviews, and ask a mentor to judge your performance. Secondly, practise speaking in front of the mirror. You can also record yourself while speaking on a topic and ask for suggestions from friends, family, and teachers.

What should I wear during the MPCJ Interview round?

Try to look as decent as possible. You might have seen judges in the court, they are dressed as simply as possible. You are required to do the same; try to wear anything formal and decent. Do not wear very flashy or bright-colored clothes.

How can I showcase my personality during the MPCJ interview or viva-voce round?

You need to be you; don’t try to act like others, and be very polite, humble and true to yourself. Even if you are nervous, it must not reflect on your face, instead, try to be confident and show some enthusiasm. Moreover, while introducing yourself, you can highlight your achievements and strengths. The most important thing is that there is no need to argue for every question that is asked to you as it may seem rude.

How should I overcome nervousness during the MPCJ interview?

It is natural that students feel nervous at this point. In order to overcome nervousness, you must think that you have come a long way and you have reached here after a lot of hardwork and dedication. This is the last step and then you can conquer it all. This way, you can make yourself feel confident.

Are there any tips for answering interview questions?

Be confident, answer every question with ultimate confidence, and do not look here and there while answering the question. Look straight into the eyes of the panel, and then try to explain your answer. Lack of confidence may make a correct answer wrong if you are unable to present yourself properly. Presentation and confidence are the key factors that you must remember while excelling in any interview.

How to answer the question about your strengths and weaknesses?

Everyone has certain strengths and weaknesses and there is nothing wrong in having weaknesses. You must answer this question with utmost honesty, and no need to cover up your weaknesses. If required, you can back up your answer with any real-life instance. Moreover, be ready to answer the question related to overcoming your weakness. You must have a solid answer already prepared, if you are asked to answer the question on “how will you overcome your weakness during the trial or in the courtroom?”

General Frequently Asked Questions (FAQs) on Madhya Pradesh Judicial Services exam

Is six months enough for clearing the Madhya Pradesh Judicial Service exam?

Nothing is impossible, if you really want to clear the judiciary in six months then you must stay focused and consistent. As the syllabus is vast and in order to complete it in six months, you have to forget every other thing and stay focused for this exam.

Is it difficult to clear the MP judiciary exam?

It is easy for those who have a proper study plan and work hard for it, and difficult for those who are not consistent at the same time. With proper strategy and hard work, you can easily crack the exam.

I am a 35 years old law graduate. Can I appear for the MPCJ exam?

Yes, 35 years is the upper age limit for appearing in the MP Judicial Services exam. So, you can appear for the exam till the time you don’t turn 36.

How many attempts do I get to clear the MP Judicial Services exam?

There is no limit on the number of attempts you get to clear this exam. Just bear in mind that you can give this exam between 21 to 35 years of age.

How should I approach studying the whole syllabus of Madhya Pradesh Judicial Service?

If you start preparing 2 years before your graduation, there is no hurry as you have ample time to complete the syllabus. You just need to be consistent, make a timetable and study accordingly. You can rather start with the subjects on which you have less command and finish them first as they will take more time. Another option is to take 4 subjects at a time, 2 of your interests and 2 of which you don’t like or have less command.

There are a lot of subjects to study, from where should I start?

Firstly, look at the syllabus properly and make a timetable. You can pick 4 subjects at a time, take two subjects that are of your interest and two subjects that might bore you at times, or you can pick 2 subjects at a time, one of your interest and another that you don’t like much. Then, make a syllabus accordingly and once you complete these subjects, you can pick other subjects, but remember to keep on revising the previous subjects.

What should be the first step in the preparation process?

The first step should be the complete evaluation of the syllabus, check the exam pattern, make a time table in a way that you give more time to the subjects that you have least knowledge of and you can certainly dedicate less time to the subjects in which you are confident.

I am in 5th year of law school and now I have thought of making a career in judiciary, is it too late to start?

It is never late, you still have more than one year, and the subjects that are asked in the judiciary are the ones that you have already studied in your 5 year law course, you just need to brush them up. Start preparing today !

Can I start preparing for Madhya Pradesh Judicial Service along with my job?

Obviously, the only thing required is consistency. If you are consistent, then you can easily manage your studies with your job. You might face difficulties at times, but always think of the bigger picture and keep working hard.

I’m not satisfied with my job and want to make a career in judiciary. Is it the right time?

Yes, the time is always right until you don’t cross 35 years of age and if you have LL.B. degree. Preparing for the judiciary requires effort but the syllabus is not new, it is something that you have already studied and you have a basic idea about it. So, you just need to make up your mind and start brushing your concepts.

I am from UP, can I appear for the Madhya Pradesh Judicial Service exam?

Yes, anyone who is a citizen of India can appear for the Madhya Pradesh Judicial Service exam, even if they do not belong to MP. The only requirement is that you must fulfil the eligibility criteria as set by the authorities.

Words of Motivation

Students often doubt their abilities and end up wondering whether they can actually clear the exam or not. Look, nothing in the world is easy or difficult, it’s the journey that you must enjoy and rest everything will ultimately become easy. Furthermore, students think that there are very few vacancies in such exams and many students appear for the same. Therefore, this increases the difficulty level of the exam. Although, the difficulty level is high, but, for such a reputed job it is worth investing your time. Remember, you will never work hard for something that comes easy. When you achieve something big, you eventually end up building confidence in yourself. Therefore, it is really good to push yourself into a life-time journey where you’ll learn a lot that will help you in your entire career.

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