In this blog post, Abhiraj Thakur, a 1st-year student of NALSAR University of Law, writes about how the Indian judiciary has dealt with the cases of fake encounters in the country. The post also talks about the initiatives taken by the state to curb the menace of power abuse by state officials.

Ever since man started his struggle for survival on this planet, he has resorted to numerous ways both to defend himself and his loved ones. He has appointed armies to defend his land and his people. All most every nation today holds its army and other security forces to fend off internal and external threats to its land and people. The state of India has suffered from both internal and external threats to its security for a long time, and so maintains a vast army, Navy, and Air Force along with other secondary security forces to counter these threats. These forces resort to various means to eliminate a threat; one such mean is ‘encounter’. A simplistic definition of an encounter, relevant in this case would be “a sudden confrontation between anti-national and anti-social elements and security forces of a nation.”

In the last two to three decades, numerous incidents have taken place in our country which were described by the police authorities as “encounters”. These “encounters” were done without proper justification and evidence to prove so and was done without following the due process of law. Some of the well-known cases are of Ishrat Jahan and Sohrabuddin Sheikh. The problem isn’t that there are certain members of society who have been given the responsibility to guard and protect everyone else and given firearms to do so, the problem is the development of that responsibility into an entitlement of being able to take steps not legitimized by the government or the law in the name of protection of the society regardless of whether it amounts to taking someone innocents’ life or not.

Judicial Approach on ‘Fake Encounters.’

The Indian Judiciary has had ample opportunities to deal cases of fake encounters in past. About thirty years ago, due to lack of awareness of rights among the citizens the cases registered of fake encounters were negligible, however with the gradual awareness of rights among the common people India has seen an upsurge in the registration of cases of fake encounters. The general notion that ‘police is for the betterment of the people and can resort to violent acts means whenever it thinks fit as it is their duty[1]‘ has been dismantled by Indian judiciary that has above all upheld the ‘rule of law in the country.’

The Supreme Court in the case of Prakash Kadam and Ors. V. Ramprasad Vishwanath Gupta and Anr.[2] held that the policemen cannot be excused for committing murder in the name of “encounter” solely on the pretext that they were following orders. The court had also observed that the “encounter” philosophy is a criminal philosophy and as the police officers and staff were engaged by some private persons to kill their opponents they had effectively acted as contract killers and encounter cannot justify their actions.

Investigation of Fake Encounters

For a nation having multiple of ethnic identities and a recent rise in the right wing politics, Anti-social activities have grown at an alarming rate over the last two decades and as a result has increased the cases of encounters. Though encounters were becoming rampant in the country, Indian law was devoid of any specific procedure to investigate the cases of encounters and further there was never felt any need to investigate encounters as the steps taken by security forces was considered to be right. In this regard, the role of the Indian judiciary has been commendable.

Why Should There be an Investigation of Encounters?

The landmark case in this regard is Satyavir Singh Rathi, Assistant Commissioner of Police and Ors. V. State through Central Bureau of Investigation[3] where the police had surrounded a car and fired indiscriminately at it till two of the occupants inside were dead, and the third was grievously hurt. In the case, the court had held the police personnel punishable under Section 302/34 of the IPC and rejected their defence as they had found it not to be in good faith or in due discharge of their duty.  The court reprimanded the state government for not initiating any investigation of the case.

Further in the case of D.K. Basu v. State of West Bengal[4]  Court acknowledged the question of why to check abuse of police power. It had held that transparency of action and accountability were two safeguards that the court has to insist upon. It is also important to develop work culture, training and orientation of the police force consistent with human values. Efforts were thus needed to change the law with regard to the investigation of encounter cases, and active attempt needs to be made to change the attitude of the people with regard to encounter cases, there is a need to have an investigation.[5]

No civilised nation of the world today can have unchecked and un-monitored police action in the country. In a case, Supreme court further remarked ‘Fake encounters look like state sponsored terrorism for the fact that there is no lawful justification for the extra judicial steps taken by the police departments and “because police can never kill a person just because he is a dreaded criminal”[6].

Reaching a Landmark: Peoples’ Union for Civil Liberties v the State of Maharashtra

Taking note of the increasing abuse of state power in the form of Fake encounter incidents, PUCL a non-political organisation filed a PIL in the Bombay high court for determining procedures to investigate encounter cases in the country. Not satisfied with High Court verdict the case went to Apex Court on a special leave petition (SLP).

The main contention of the petitioners was that it is possible that some of the persons who were shot dead were criminals, but there are also some who were innocent and to prove the same they highlighted the case of Aby Sayma alias Javed who was a victim of the encounter stage managed by the police as alleged by them. PUCL submitted that in every encounter in which the criminal sought to be arrested died and all that the police said was that the criminal killed had tried to assault the police officer and was thus shot down and declared dead at the hospital. Also was submitted that the encounters violate the right to life guaranteed under Article 21 of the Constitution and thus it is necessary to direct an independent inquiry into these incidents.

The Supreme Court inter alia dealt with the determination of procedure to investigate encounter cases and held that the need to conduct independent investigations into encounters and to have proper guidelines advising the same is extremely important. The court also recognized the fact that the Police in India has a difficult and delicate task upon themselves to perform because of the strong presence of crime in the country.

Guidelines Laid Down for Investigation

Today there are several guidelines that need to be followed before committing an encounter and during the investigation of the encounter. Some of the noteworthy guidelines are:

1. Cautions before an encounter: It is now mandatory that whenever police or any other security agency receives any tip off or intelligence regarding movement of criminals pertaining to the commission of an offence of grave nature, the information has to be reduced into either electronic of written form.
2. Post-encounter measures: Once an encounter is done, Independent Investigation into the matter has to be taken up by the CID or a police team of another police station under the supervision of a senior officer. The following documents need to be gathered in course of investigation:

• For identification of the victim, a coloured photograph
• blood stained earth, hair fibres, and such other evidentiary material have to be recovered and preserved
• There has to be an identification of the scene witnesses (including statements of the personnel involved)
• After the encounter has finished, the personnel concerned need to surrender the weapons used for ballistic analysis. The procedure needs to be cautiously followed with regard to Article 20(3) of the Indian Constitution that gives the right against self-incrimination (Being witness against oneself) to every citizen.

3. Judicial relief: A Magisterial inquiry under Section 176 is now mandatory in all cases of death occurring in Police Firing and subsequently a report needs to be sent to the Judicial Magistrate having jurisdiction under Section 190.
4. Human Rights Approach: A report containing all the relevant Information of incident needs to be sent to NHRC (National Human Rights Commission) or SHRC (State Human Rights Commission) immediately, though their involvement is conditional unless there are some serious discrepancies in the investigation.
5. Humanitarian Assistance: Medical Aid must be provided to injured Criminal/Victim and his/her statement must be recorded by Magistrate or Medical Officer, accompanied by a certificate of fitness.
6. Relief for victim’s family: The most remarkable relief provided by the guidelines for the families of the victims were that If the family of the victim reasonably believes that these guidelines have not been adhered to, they can lodge a complaint to sessions judge having jurisdiction over the area of the incident.

An efficient judiciary always works on the principle of checks and balances, where every organ of the state keeps a check on the other at the same time being checked by others. With reference to encounter cases, we see the judiciary has ensured ample safeguards to curb the misuse of force by the state. Today when countries like USA and UK have specific legislations to deal with the investigation of encounters, there is no legislation in India should concern all of us. Also, though there may be cases of abuse of power but we must always be indebted to our security personnel, they are there for us.

Footnotes

[1] Mandeep Tiwana, National Human Rights Commission Guidelines on Encounter Deaths March 29,1997, and Revised Guidelines December 2, 2003, Human Rights and Policing: Landmark Supreme Court Directives & NHRC Guidelines, 36, (2005).

[2] (2011) 6 SCC 189

[3] (2011) 6 SCC 1

[4] (1997) 1 SCC 416

[5] Para 29, page 433, D.K. Basu v. State of West Bengal, (1997) 1 SCC 416

[6] Om Prakash v. State of Jharkhand, (2012) 12 SCC 72

In this blog post, Maanas Tumuluri, a student of Amity University, Noida, highlights the essentials of a crime, elucidates on the importance of Mens rea and Actus Reus in the commission of a crime.

A crime is a moral wrong, committed against the society as a whole. It disturbs the peace, and some crimes may cause widespread panic and disruption of normal activities in a community (Example: – the shooting in Orlando, Florida). The burden of prosecution of a crime falls on the State, and the burden of proof falls on the prosecution. The State acts to protect the victims of the crime and to prevent the offender from committing more crimes and acts to provide justice to the victims. The State also takes measures to punish the offender and most countries have reformation programs in prison in an attempt to steer the offenders towards becoming law-abiding, dutiful citizens. An animal cannot commit a crime; hence, an essential of any crime is that it must be committed by a human being. However, crimes can be committed against animals and are punishable by law.

Mens rea and Actus Reus are two essentials of any crime and are the principles used in most common law countries. Mens rea is the ‘guilty mind’ or guilty intention to commit a crime, with the intention of causing hurt to another person, animal, or with the express intention of disturbing the peace. Actus Reus, however, is the “guilty act”, which is a necessity in proving that a criminal act was committed. When dealing with any crime, there are certain principles that need to be followed, and the accused is given the benefit of the doubt. The onus is on the prosecution to prove his/her guilt, beyond a reasonable doubt. The goal of the defense is to provide the judge or jury with a reasonable doubt since the principles of justice dictate that a person cannot be convicted if the charge on which he/she is accused cannot be proven beyond a reasonable doubt.

Mens Rea

Mens rea is an essential part of deciding whether an act is culpable or not. Mens rea displays specific intent by the accused for the commission of the crime for which he is charged. The accused must be proven to have knowingly committed the crime, and had full knowledge of their actions and must have malafide intent towards the victim. Mens rea is also used in some civil suits, requiring the defendant to have been aware of the repercussions of their actions for a civil liability to arise, but usually, the Actus Reus takes precedence in cases of civil liability.

Further, an Act may be voluntary or involuntary, and the guilt is determined by the facts of the case. If a person drives while he’s drunk and involuntarily causes harm to others, he is still guilty as it was a voluntary choice on his part to consume alcohol before driving, even though the crime itself was unintentional. However, if an otherwise healthy person suffers a heart attack while driving and involuntarily causes harm to others, he are not liable and is not guilty of the crime.

Actus Reus

Actus Reus is the physical aspect of a crime. The accused needs to have done something or omitted to do something, resulting in injury to the plaintiff, or the victim in civil cases. Without a guilty act, there can be no crime and no suit for damages can arise. An act alone does not make a crime, however, and both the intention of the person and the act itself, if such act is prohibited, combine to form the crime. In certain cases, circumstances of the case are also taken into consideration, and are often used to either conclusively prove guilt, or can be used to prove reasonable doubt of intention. (Example: – carrying a knife into someone’s house with the express intention of committing the act of murder, or driving a car on a foggy night and accidentally striking someone attempting to unsafely cross the road.)

Actus Reus can also be the omission of an act, by omitting to do something that the accused knows he is bound by duty or law to do (example: – a mother intentionally omits to feed her female child, leading to the child’s death.) The mother can legally be charged with causing death by negligence, and may also be charged with murder, if her intentions of murdering her infant can be proven in court.

Minors

In Indian law, children below the age of seven are judged as guiltless, and cannot be held guilty for any offence. Children below the age of eighteen cannot be tried as adults and can only be sentenced to a maximum of three years.

Ignorantia juris non excusat

In certain cases, an illegal act may have been committed, but by mistake of fact, the accused may be excused. [Example: – If a person drives in the wrong direction in a one way lane without knowing that it is a one way (no sign boards) and causes an accident, he will not be criminally liable, and may or may not be liable in a civil court.] Ignorantia facti excusat is the legal principal used which means ignorance of fact is an excuse. Mistakes of Law are not excused, however. If a person sells an illicit substance, without the knowledge that the possession or sale of that substance is illegal, he is still completely liable for the crime. Ignorantia juris non excusat is the legal principle used in such cases, and it means, ignorance of fact of law is no excuse.

Some crimes do not necessarily require a malafide intention towards one particular person, and cases involving criminal negligence are a prime example of this. If a person leaves behind dangerous items that he is legally responsible for, like a firearm, he may be charged with criminal negligence if a crime is committed. (Example: – If a person leaves his shotgun loaded in his driveway, and a criminal uses it to commit a crime, the owner of the firearm may be guilty of criminal negligence for failing to properly secure the weapon. Such criminal negligence is culpable, and may carry a prison term.

Strict liability

Some cases have a strict liability clause, wherein Mens rea does not matter. Cases involving statutory rape and sale of alcohol or tobacco to minors are prime examples of this. It does not matter if the accused believed that his actions were legal, he will be guilty for the crime. In such cases, Actus Reus alone is sufficient to establish guilt, and to obtain a conviction from a competent court of law.

Some crimes require a deeper level of Mens Rea, like theft. Crimes like theft involve the specific intention to deprive the rightful owner of the full use the stolen good and enjoyment of his personal property with no intention of returning the said goods to their rightful owner. However, in cases of theft, the object does not necessarily have to be removed from the victim’s immovable property (Example: – A person steals a diamond ring belonging to ‘A’ and hides it in a flower vase, in ‘A’’s house with the intention of retrieving the ring later and with no intention of returning it to ‘A’. The moment the ring is taken from the location where ‘A’ left it, theft has been committed, and the thief can be prosecuted.) Cyber crime is simpler since theft of digital data cannot be accidental, and theft of identity, data and confidential information is done with malicious intent to harm the reputation of the victim or to get wrongful gain from the use of someone else’s property or resources.

4 essential elements of a crime

In conclusion, the four essential elements of a crime are:- (1) the crime must be committed by a person, (2) there must be hurt or injury caused to another, (3) there must exist an Actus Reus, (4) there must be a Mens rea to commit the crime, with certain exceptions.

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In this blog post, Maanas Tumuluri, a student of Amity University, Noida, explains the crime of homicide, and its various aspects.

Human beings had killed even before history started being recorded for us to see. Today, killing another person is one of the gravest offenses known, with the exception of sedition and treason. The crime is known as homicide i.e., the killing of another human. Culpable homicide and murder are two terms commonly used to define this crime. The differences between these two terms are small but important to the legal system while dispensing justice to the victims of these grave crimes. Homicides can also be justified homicides. As with any other crime, murder is a crime against a person as well as the society as a whole. It disturbs the peace and might cause panic and hysteria amongst the public, especially when a serial killer is thought to be at loose.

The simplest way to put the differences between culpable homicide and murder is that all crimes of murder are within the scope of culpable homicide, but not all culpable homicides amount to murder. Murder is the more serious of the two offences and carries a lengthier sentence in almost all countries.

Section 299 of the Indian Penal Code

This section defines culpable homicide as ‘whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.’

Section 300 of the Indian Penal Code

This section defines murder as ‘culpable homicide is murder, if it satisfies any or all of these following conditions:-

1. The act by which the death is caused is done with the intention of causing death, or
2. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or-
3. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
4. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.’

The differences are subtle. In Culpable homicide, there is a definite Mens rea, a malicious intention to kill the victim, and the victim dies, but the person committing the homicide cannot be certain of death, but he/she hopes for it. It is complex to prove this in court, and judgments may run askew depending on the subjectivity of the case.

In Murder, however, there is again, a definite Mens Rea, a malicious intention to kill the victim, and the victim dies, but the person committing the homicide is certain of death, and may even go out of his way to ensure it. (Example: – “A” goes to “B” with the intention of severely scaring & hurting him; In the ensuing scuffle, “A” punches “B” in the abdomen and “B” dies as a result. “A” could not have been certain that “B” would die; this is chargeable under Culpable Homicide, not amounting to murder. However, if “A” had gone to “B’s” house, and forced “B” to consume poison or cyanide, “A” has gone to extreme and thorough measures to ensure “B’s” death, and the crime is chargeable under the crime of Murder.)

Murders usually involve more premeditated action than culpable homicides, and some culpable Homicides may not be completely intentional (Example: – In Salman Khan’s drunk driving case, he had no intention to kill, however, he was undertaking an activity he knew would be dangerous to himself and everyone else around him when he made the decision to drive while under the influence of alcohol. He was charged with causing death by a rash and negligent act – not amounting to murder.) A defendant may argue that he/she took precautions not to kill the victim, but merely injure or hurt, if faced with a charge of murder, to reduce the charge to that of culpable homicide, which carries a lower sentence.

The United States has a good system of classification for murder. Aggravated or highly brutal murders are treated as first-degree murders (With a punishment of life in prison or death), while “normal” murders are charged as second-degree murder (a sentence of up to life in prison). They also refer to culpable homicide as manslaughter, and involuntary manslaughter may be committed when a person has no intent to kill, but his/her actions were a danger to everyone around, and death occurs (Example: – Waving a loaded gun, and accidentally firing a bullet.) (Involuntary manslaughter carries a sentence of up to eight years). Voluntary manslaughter or third-degree murder is a murder done in the heat of the moment; with no premeditation or planning (They carry a punishment of up to fifteen years).

Homicide can also be justified. Most countries allow for self defense, although some countries place higher restrictions on their citizens, to prevent misuse of this privilege. The United States has a “castle doctrine”. The castle doctrine states that a person may use force, up to deadly force, to defend themselves against any intruder, if they are in a place they are legally entitled to be, and are protected from prosecution for such acts. This is most commonly seen when potential housebreakers or thieves are killed by the homeowners. India has a similar law but stipulates that a person may only use force proportional to the force being used against him, and only in situations where there is a fear of grievous injury or death.

Sections 96-106 all deal with the right of private defense awarded to people in India.  It is far more limited than the rights of self defense given to people in the United States, but with good reason. India has a much higher rate of unreported crimes and a lower rate of convictions. As such, it would be easier for a murderer to claim the act was in self defense, and get away with the crime. However, since they now have to prove apprehension of death, it provides a barrier against misuse. Unfortunately, the opposite is also true. Due to the harsh limitations placed, people who genuinely commit acts in self defense often have to face harsher consequences.

In Indian law, culpable homicide involves the killing of a person regardless of intention. The level of intent is the element that differentiates it from murder. The question of fact is whether the accused knew the victim would die, or if death was uncertain. Murder carries a sentence of life in prison or death, depending on the ruthlessness, if the criminal is a repeat offender, or other factors, at the discretion of the judge.

In this blog post, Charvi Arora, a student of University of Petroleum and Energy Studies, Dehradun gives you an overview about the poor standard of food being served in the Indian Railways and the initiatives that have been taken by the Railway Department to improve the same.

The problem faced by almost all of us while traveling in the Indian Railways is the poor quality of food served. So, if the food served to you in the train is smelly or stale, don’t worry everyone is sailing in the same boat.

The quality of food served while traveling for a long distance is a major issue that is yet to be resolved by the Indian government. In some trains, the packed food items are expired and kept in unhygienic conditions and are considered sub-standard. While in some trains, the food has been pre-cooked 4-5 days ago and this makes it all the more stale and smelly. This problem is faced all over the nation, especially in the sleeper class section of the train where the environment is very unhygienic. The problem has not been looked into even after several complaints have been made to the Railway department. The condition of kitchen is extremely unhygienic and the cooks are not of the expected standard. The kitchen is poorly ventilated and the vegetables brought from the market are rotten.

All the helplines or the toll free numbers either do not work or are already dead. But the railways are still under the misconception that the availability of food is a problem while the actual menace is its quality. They were however unsatisfied about maintenance of bathrooms.

Some examples

Indian Railways Catering and Tourism Corporation (IRCTC) were fined for Rs. 1 lakh because a cockroach was found in the food in the Kolkata Rajdhani Express. There have been many instances in the past for which the Railways have been fined.

Railways have imposed heavy fines totaling Rs. 11.50 lakh on nine caterers including IRCTC for serving ‘bad quality’ food in trains.[1]

The Tourism Industry has a major drawback in the field of Railways as the tourists remain unsatisfied due to the poor quality food served to them. Railway catering has always been an insignia for poor quality. There is a plethora of poor feedbacks against the standard of food and beverages supplied to the passengers and the tourists traveling in the train. It lowers the reputation of the nation as less people would prefer travelling by the Railways. The actual standard is not maintained as the food inspectors’ visit these trains rarely and therefore no action is taken and nobody takes the responsibility to manage it. The quality of the food offered in the trains and on the platform can’t be guaranteed to be hygienic at all.Even after all the progress in restoring and improving the conditions of food stored in the pantry, there have been many complaints.

Reasons for poor quality of food

• Catering services are usually outsourced; quality check has not been done regularly.
• Contracts are usually taken by small time vendors who want to earn more money than serve quality food during contract period.
• No background checks are done while choosing vendors.
• There is no sense of responsibility as they focus on earning more profits than serving their duties.
• Visitor entry is allowed via pantry to different coaches who actually bring in more dirt then revenue.
• Inadequate facilities to preserve large quantity of food.
• Majority of the passengers are not fully satisfied about the cleanliness of coaches.

Passengers are unsatisfied about the maintenance of bathrooms. However they are satisfied about the behavior of railway employees. Passengers are also not fully satisfied with pantry car employees’ services. Railway must improve the quality of food served by pantry coach to passengers and instruct pantry staff to be courteous and responsive towards passengers.Some of the food items were adulterated by the chefs before serving the passengers in the train.

Solutions to be implemented by the Railway authorities

Strict quality checks should be done before selecting food vendors and contracts should be given to big and established vendors who would provide good quality and service. High penalty should be imposed on defaulting or non performing contractors. Standard dispensing machines should be installed for items like milk, cornflakes, coffee, tea, pre made snacks, etc. Passengers should be able to pre-order from a fixed menu decided by the Railway department. Menu cards should be displayed in the coaches of each train and they should not be priced too high. Food contractor’s name and contact number along with the concerned IRCTC supervisor’s name and contact number should be displayed in each bogie of the train. The serving boys should necessarily wear a clean uniform with identity cards. Pantry boys should be trained on maintaining hygiene and cleanliness. CCTV cameras should be installed in the pantry cars. The waiters should be provided with trolleys in the same way as done in the airplanes. The unauthorized vendors should not be allowed to enter the platforms. Regular quality checks of the pantry should be done by senior officials. An effective online or mobile based citizen feedback mechanism should be set up so that passenger feedback is sent immediately after the service is provided. Citizens should be able to rate Food and Service via their feedback.  Railway officers must take action on any complaint within specified period of time. Pantry coach should be redesigned with modern facilities and amenities. IRCTC should consider consulting with a Food Technological Research Institute for comprehensive advice on food quality, food safety and nutrition.[2]

The Present Scenario

Now the Indian officials’ have given the passengers the assurance that good and hygienic food would be served to the people. As said by the Indian officials, they have tied-up with Foodpanda which has been another big step towards the development of Indian Railways. The solution to this big menace has been strictly implemented by the employees. IRCTC officials have promised to provide the best quality services in little time and the quality of the food would be far better than what was served earlier. The Indian Railways caterers have also tied up with major food joints like KFC, Dominos, etc. Haldiram has also shown great interest in collaborating with the Railway caterers.

According to the ministry, it is also a part of Prime Minister Narendra Modi’s initiative of Swachh Bharat campaign to provide better service to passengers traveling in trains. Railway services have improved its system by managing on-board catering services in the local trains as well.It has also introduced station-based catering on 45 major stations all over the nation for the traveling passengers and their reach has expanded over time. They have also tried to manage the concept of e-catering through various sellers but this will develop in the future at a tremendous rate. Now the passengers can book tickets and manage the food served to them according to their choices online for the delivery of food while traveling. Indian Railway passengers can now feel satisfied with the food served in the train.

Conclusion

“The feedback service is in line with the emphasis given by Rail Minister Suresh Prabhu on the best connects between railway administration and railway users,” the railway ministry said in a statement.

 In my opinion, the food contractors should be instructed to have their place of cooking made pest free & certificates should be obtained for doing periodical pest control measures. Another most important thing sold by the pantry car is water. There is no quality control at all. Focus on this area to avoid water borne disease is a major requirement. IRCTC should be entrusted with the job of collecting the feedback, which should be done through a speedy mechanism. Under this system, passengers must be contacted randomly on their mobile phones to gather their feedback about the facilities provided by the Railways regarding all aspects such as cleanliness of the train and the respective station, quality of catering, punctuality of trains, etc.

On an average 60-70 calls per day, per train are being made and efforts are on to make approximately one lakh successful calls per day to passengers of mail/ express trains, the ministry added. The service is being initially being tested on a few trains. I hope after these initiatives taken by the Railways Authority of India, the condition of the railways improves as a whole.

[1]http://www.ndtv.com/india-news/irctc-among-nine-caterers-fined-by-railways-for-bad-food-606669

[2]http://www.complaintboard.in/complaints-reviews/irctc-catering-services-l188255.html0o

In this Blog Post, Charvi Arora, a student of University of Petroleum and Energy Studies, Dehradun, tells us how a the valuation of a startup is done and further enlightens as to how a startup is established.

Valuation of a Startup

To start with, let’s look at the basic definition of a Startup. So, a Startup is a newly established business looking forward to getting itself placed in the market and continuing further in motion.

It is quite easy for an artist as compared to a person belonging to a science background to value the startup because it is believed that valuing a startup is mainly in the domain of an artist. It is necessary that we put a value on our startup investments to generate liquidity. Since valuation of a pre-revenue company is often one of the first points of contention that must be negotiated with investors and entrepreneurs. Entrepreneurs want the value to be as high as possible and investors want a value low enough for them to own a reasonable portion of the company for the amount they invest. Potential investors and entrepreneurs prefer to use several methods to value a startup because no single method is useful every time. Multiple methods also help in the negotiation process because an average can be determined from among them and it rather becomes less time consuming.

The biggest determinant of a startup’s value are the market forces of the industry and the sector it falls in, which include the balance (or imbalance) between demand and supply of money, and size of recent exits, the willingness for an investor to pay a premium to get into a deal, and the level of desperation of the entrepreneur looking for money.

Big startups in India as of today are Myntra, Jabong, Freshdesk, Zomato, Olacabs, Book My Show, Oyo Rooms, Snapdeal, Bigbasket, Paytm, Dropbox, Instagram, etc. which have gained a huge amount of popularity and are still growing at a very fast pace. Startup companies have short operational histories and little historical financial data. Usually in a business, the valuation specialists typically use historical financial data to extrapolate the future value of a business. Recently, the government officially launched the ‘Startup India’ programme which was first mentioned by the Prime Minister on the 15^th of August, last year.

According to a report given by The Hindu, the plan comes at a time when the startup ecosystem in the country is witnessing an exponential growth. As per NASSCOM’s “Startup-India: Momentous Rise of Indian Startup Ecosystem” report, India ranks third globally with over 4200 startups.The government has shown their interest to support the startup ecosystem and Startup India is expected to take it ahead with the introduction of key policy reforms. According to Nilotpal Chakravarti, AVP of Internet and Mobile Association of India, “Over the last one year, the government has been steadily building a conducive atmosphere for encouraging start-ups in India. Initiatives like Digital India and Make in India are the biggest enablers providing a boost to startups.”

We should know what our business is actually worth, i.e., if it’s worth being is higher than we are thinking or if it is overvalued by us. To decide this, certain steps are to be taken into consideration and they are:

Depends upon the market

It depends upon the investors; whatever they’re telling is what the startup is worth. If we think that our startup is worth more, and we are unable to raise a certain amount of money, we have to accept the valuation that the investors have given it.

 If we raise money from our relatives and friends rather than professional investors, it’s possible that our company has been overvalued or undervalued (more likely, overvalued). Therefore, if we have persuaded our rich uncle to purchase shares in our business at Rs.20/share, it doesn’t mean that the investors will also pay that amount to buy that share even if our business is growing at a good rate.

When do we tell the market what is our worth?

This case is very rare in a startup as they don’t have a history of financial performance on which the investors can valuate it. Therefore, it’s always up to an entrepreneur to develop a strong procedure for valuing the company at a higher level based on other comparables.

Startups require a more creative methodology that considers, among other factors:

• Quality of management
• Value of comparable companies
• Industry prospects
• Stage of development
• Value of company IP
• Working capital requirements

The basic Stages behind a Startup

Stage 1

1. Inspire:

• This is the stage where the entrepreneurs get inspired from an idea and want to establish a startup. They try to initiate it and follow certain ideas that have inspired them. The startup media typically provides centralized local startup listings and news.
• It also includes inspirational events which welcome the people into their community and inspire those with ideas to launch a company. Some examples are Startup Weekend, University Events, and Inspirational Meetups.

2. Educate:

• In this stage, an entrepreneur learns and gets himself more acquainted with the field in which he is going to establish a startup and collects all the necessary information which is required.
• These events serve to educate rather than inspire. Training and feedback with a certain idea in hand, bootcamps help in aspiring entrepreneurs build more.

3. Validate:

• When in the last stage, in order to execute the startup, the entrepreneur validates the new business and brings it into comparison with the already set up businesses.
• Team formation for startups is the key. It should only include resources that specifically facilitate networking.

Stage 2

In this stage, entrepreneurs establish and formalize the company, develop their product, get feedback from customers, and prepare for the next step.

1. Start:

• It includes resources to help entrepreneurs set up the legal and financial frameworks for their companies, like local law firms and banks that specialize in addressing the unique challenges of startups.
• Co-working and flexible workspaces can provide a good breeding ground for new companies.

2. Develop:

• As a company begins to grow, they often need resources to help them set up their infrastructure (accounting, HR, recruitment, production, etc). This section can include accountants, software development houses, and more.
• PreSeed funding is a big milestone for most startup teams.This includes Startup Weekend Next and workshops.

3. Launch:

• The next step in the equation for most ecosystems is a local accelerator, like TechStars, Seedcamp.
• Whether a company goes through an accelerator or not, they often need a way to present their company to a large number of investors in order to gain a large seed investment.

Stage 3

Here, a startup proves their utility, receives recognition and scales up. This usually requires funding and other resources to drive growth.

1. Recognition:

• Many ecosystems have ways to connect professional investors with founders, like events, groups, and association.
• The major media can play a role in the startup ecosystem as well, by providing exposure for companies to mainstream audiences.

2. Funding:

• These investors focus on the seed-stage. These investors typically participate in the funding stage and beyond, such as institutional venture funds.

3. Growth:

• With capital in hand, a company will often need to invest in infrastructure to grow. This includes expenditures like office space, HR, business insurance, and more.
• In many cases, capital-rich companies will also look for new areas of growth such as new product lines or international markets. Consultants, corporate accelerators and growth accelerators can typically help provide assistance in local markets.

The value of your startup depends on the investor; if he’s willing to pay more for your company depends on the following factors:

The startup is in a flourishing sector:

 Investors that come late into a sector may also be willing to pay more as one sees in public stock markets of later entrants into a hot stock.

If the management team comprises of professionals from all fields:

A good team gives investors good faith that the team can execute further and grow wisely in the market.

The product to be introduced is a functioning product:

It becomes easy for the market to adapt the new product in a lesser time and certainly for the investors to invest in it.

Negatives that could lead to decline of a Startup

• It is in a sector that has shown poor performance.
• It is started in a sector which is highly commoditized, with little margins to be made.
• It is in a sector with a too many competitors and little differentiation between them.
• The management team has no record and the professionals are missing from its team.
• The capital budgeting is really acute.

If we set up a survey to ask people what is the basic drawback, of a startup not being a success is ‘Lack of capital’. However, in our experience working in nearly 100 markets across the globe, ‘lack of capital’ is nowhere near being the biggest hindrance to startup community growth.

Consider the following sequence of events, which are considered to be very helpful:

1. New capital is required to grow a local startup ecosystem, either by the government or by foreign investors. This money needs to be allocated fairly quickly.
2.  As a result, these organizations start :

• Creating exclusive relationships with others in the ecosystem
• Vertically integrate (ex. co-working spaces that used to partner with accelerators now create their own accelerators).

3. Almost overnight, a once collaborative ecosystem becomes overly competitive and fragmented.

Startup Ecosystem

Taking in consideration the ‘The Startup Ecosystem’ (a startup ecosystem is formed by people, startups in their various stages and various types of organizations in a location, interacting as a system to create new startup companies), they are controlled by both external and internal factors. External factors like financial climate, big market disruptions and big companies transitions control the overall structure of an ecosystem. Start-up ecosystems being dynamic entities, they are initially in formation stages and once established are subject to periodic disturbances, passing afterwards to the recovering process from some of those past disturbances and then flourishing like a fully established business in the near future.

Start-up ecosystems in similar environments but located in different parts of the world can end up doing things differently simply because they have a different entrepreneurial culture. The introduction of non-native people knowledge and skills can also cause substantial shifts in the ecosystem functions. In addition, resources like skills, time and money are also essential components of a start-up ecosystem. The resources that flow through ecosystems are obtained primarily from the people and organizations that are an active part of those startup ecosystems. Interactions in the form of events and meetings between organizations and different people play a key role in the movement of resources through the system helping to create new potential startups or strengthening the already existing ones and hence influencing the quantity of startups build. Failures of start-ups release people with improved skills and time for either establishing a new start-up or joining an already existing one.

Startup ecosystems are generally defined by the network of interactions among people, organizations and their environment. They can come in many types but are usually better known as startup ecosystems of specific cities or online communities ( it is often said that due to social networks, the entire globe is just one big network of startup ecosystems).

To conclude, the only strategy to be adopted by the Startup entrepreneurs should be “Go big or go home”.

Raise as much money as possible at the highest possible valuation, spend all the money fast to grow as fast as possible. If it works you get a much higher valuation in the next round, so high in fact that your seed round can pay for itself. If a slower-growing startup will experience 55% dilution, the faster growing startup will only be diluted 30%. So you saved yourself the 25% that you spent in the seed round. Basically, you got free money and free investor advice.

This article has been written by Shubham Khunteta, a student of National Law University Odisha, Cuttack, in which he talks about the hybrid nature of ‘trespass,’ its meaning, types and defenses with the help of case laws.

Introduction

It is often seen that one wants to protect one’s body and property, whether movable or immovable. People usually seem anxious as to their person or property being vulnerable to negative elements, who are willing to misappropriate and exploit their wealth with a Mala Fide intention. This apprehension of large sections is what is required to be dealt with the iron hands of the law.

The law takes care of the acts which are to be recuperated with compensation or punishment. These acts can lie from a mere intentional touch to one’s person with an evil intention of intrusion into one’s property without assigning any reason for the action.

The law is often applied and has evolved to strike a delicate balance between the private rights to the exclusion of others and the socially valuable public and private interests that are sometimes served by permitting unauthorized instances of access. Therefore, it becomes extremely necessary to identify the precise problem and its solution.

Public interest often trumps the private interest and is widely recognized by law to be the distinctive exception to the owner’s “Right to exclude.” Trespass is a varied topic involving both civil and criminal elements. What distinguishes criminal trespass from civil trespass is that in the former, the entry should be with intent to commit an offence or to intimidate, insult or annoy the person in possession of the property[1].

Trespass is both a civil and criminal wrong because it can cause injury, i.e., violation of legal rights as well as damage to one’s person and property substantially if a physical attack takes place.

Trespass law is commonly presented as a relatively straightforward doctrine that protects landowners against intrusions by opportunistic trespassers

Meaning and Interpretation

Trespass can be said to be an action exceeding the limit carved by the law. It is an intentionally directed, unreasonable interference with one’s person and property. The word ‘intention’ here implies committing the wrong voluntarily. Trespass allegation can be leveled if the interference is with one’s and ^third person’s body and private property. It is to be kept in mind that intention forms the essential component of trespass. Unreasonable behavior is triggered by the mala Fides and ulterior intention to harass another.

Types of Trespass

Trespass Against Person

It is the causing of apprehension of unreasonable interference with one’s person and body as well as ^{a third} person and includes usage of force causing damage and impairment in the body. The trespasser, with an ulterior intention, transgresses the right of another and makes an alteration in it with the objective to cause wrongful loss or wrongful gain as the case may be. It is considered as intentional even if the wrongdoer did not know that the property belonged to another.

Assault: It is the causing of unreasonable apprehension of body injury and damage in the mind of another person and usually a prelude to a battery. It can be given effect in a way that would make certain actions and indications as suggestive of assault by another. It can be both direct and indirect. It can be carried out by the person himself or through ^{a third} person.

Here, an important factor of foreseeability causing apprehension is required as it is essential that one is able to conceive after seeing something that it is causing unreasonable fear. Section 351 of Indian Penal Code defines assault[2].

Essentials of assault include:

•  Intent
• Apparent ability to carry out the purpose
• Apprehension
• Knowledge of threat

An example of foreseeability in trespass: A man directing a gun and about to trigger it, behind a person is not foreseeable to the person. This can’t be said to be an assault as there is no apprehension in the mind of that person that somebody is doing such an act which would instill fear in him.

Battery: The use of force on the person of another without lawful justification. Battery consists of touching another person hostilely or against his will directly or indirectly, however, slightly. Direct force can be like slapping a person whereas indirect force is like setting a dog behind a person or spitting on a person. Battery corresponds to ‘use of criminal force’ according to Section 350 of the Indian Penal Code[3]. What is necessary is that the wrongful act must involve physical contact.

Essentials of battery include:

• Direct or indirect physical contact without lawful justification
• Use of force
• It must be voluntary

Accidental touch or push in the market is not wrongful and does not constitute battery.

False Imprisonment: When someone’s way is restricted unlawfully from all possible directions so as to prevent him/her from moving in a direction for some period, however short, it is called false imprisonment. In the Indian Penal Code, it is defined as wrongful confinement.

Article 22 of the Indian Constitution provides for protection against unlawful arrest and casts an obligation upon the state to follow due procedure while carrying out arrest related activities[4]. Section 43, CrPC provides for arrest by a private person if the offender is a proclaimed habitual offender and is alleged to be liable for a cognizable and non-bailable offence.

Essentials: Complete restraint of liberty of person and unlawful restriction

Defence against trespass to body[5]–

1. Consent of Plaintiff: When plaintiff consented with the defendant on the specific act then defendant can’t be said to be trespassing if there is a mutual understanding between the parties for the act.
2. Contributory negligence: When there is a negligence of plaintiff included in the act, then defendant’s liability can be mitigated to the extent and compromise can be arrived at or liability can be divided.
3. Self-defence: A person, to protect himself from an unruly element or any other such person or incidents, can trespass on the property to preclude the act from consummation. But, proportionality and probability should be kept in mind while using the property of the plaintiff to intrude and so it is to be proved by the defendant that there was no other option with the defendant other than to intrude in the property of plaintiff.
4. Statutory authority: Authorities compelled by the law to carry out search and seizures and cases where consent is taken to conduct a bodily search would not be construed as a trespass on the body of a person. Entry in public places and private property used for a commercial purpose is not trespass considering the societal and public interest in mind.
5. Preservation of public peace

Trespass Against Property

Trespass against movable property like goods[6]

It is the taking wrongfully or forcefully interfering with the goods of another. It differs from trespass to land in one important aspect that wrongful intention or negligence is not necessary for trespass to goods. A challenge to ownership of goods amounts to conversion which is different from trespass to goods, which can be elucidated by an example of the damage of goods given by the plaintiff in a cloak room of railways but personnel there instead of giving it, threw it and damaged it.

Trespass against immovable property like land[7]

Legal maxim ‘Quare clausum fregit’ defines land as, “Land includes not only the surface and any buildings on it but also the airspace and subsoil, in so far as these are vested on the plaintiff. The action of trespass to land penalizing direct interference with other people’s land.”

Trespass is mainly a wrong against possession and is available at times against the owner himself. Court in the case[8] opined that “The correct position in law may, in our opinion, be slated thus in order to establish that the entry on the property was with the intent to annoy, intimate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that it is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the persons entering: that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that its natural consequences would be such annoyance, intimidation or insult and including also the probability or something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry”.

No one has the right to dispossess the trespasser if he is in a settled possession of a property and he can’t be evicted unless due process of law is followed. The possession, which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner[9].

Under the doctrine of prescriptive easements, for example, a property owner loses the absolute right to exclude (all other persons from taking possession of his land) when a non-owner has used that land openly, peaceably, continuously, and under a claim of right ad- verse to the owner for a period set forth by a particular state (known as the prescription period). It was held by the High Court of Bombay in case[10] that a rightful owner who dispossesses another cannot be treated as a trespasser except as provided by Section 9 of the Specific Relief Act, 187.

Case Laws on Trespass

Sentini Cermica P. Ltd. Vs Kunchi Krishna Mohan and Ors[1]: Statutory Authority: Search and seizure on the premises of appellant do not constitute an act of trespass. It can’t be said that any procedure carried out to find the truth on the property will be construed to be an act of trespass if the act is carried out with sufficient legal backing.

Amit Kapoor Vs Ramesh Chander and Anr[1]: Merely because there was a civil transaction between the parties, it would not by itself alter the status of the allegations constituting the criminal offence.

Samira Kohli Vs. Dr. Prabha Manchanda and Anr[2]: The performance of hysterectomy and salpingo-oophorectomy on a patient was an unauthorized invasion on her person by the doctor, and it can be deduced to be an assault and consequential battery. Her consent was required as she was an adult and although the doctor acted in the best of patient’s interests and can be considered to be mitigating circumstances to reduce compensation, however, in the interests of justice, the patient is entitled to the compensation.

Rajinder Kumar Malhotra vs. Indian Bank & Ors:[3] Petitioners were licensed to operate kiosks through auction, and their right was taken away by the government corporation after the revocation of license on the expiry of the license period. Here the court made a distinction between license and lease and held that the license does not create possession and it is the discretion of the authority to revoke the license and dispossess the petitioner if any irregularity or discretionary act guides them to do so. A lease creates a possessory, inviolable and a settled right on the person to whom it is granted, whereas a license has a different footing altogether. A leased property can’t be trespassed on without lawful justification and exhortation of public need. On the other hand, a licence neither creates ownership nor possession rights in favour the person to whom it is granted. As a result, it can’t be said that the petitioner’s right has been trampled upon by trespassing on the property.

Section 9 of the Specific Relief Act protects the possession of the tenant from the deprivation by the owner even after the cessation of tenancy. However, there needs to be settled possession in it of the tenant, and this possession is juridical and is protected by statute.

Bavisetti Venkat Surya Rao v. Nandipati Muthayya[4]: Plaintiff owed a certain amount to the defendant which he was unable to pay. The defendant, in order to collect the amount thought to visit plaintiff’s house and sell some movables to recoup the amount. The defendant called a goldsmith to evaluate the value of gold in the house of plaintiff, but the person standing at the time of such evaluation near the house borrowed the amount from another to give it to the defendant, and after the defendant had taken the amount, the plaintiff sued him for assault.

It was held that since the defendants, after the arrival of the Goldsmith said nothing and did nothing and the threat of use of force by the goldsmith to the plaintiff was too remote a possibility to have put the plaintiff in fear of immediate or instant violence, there was no assault.

Bird v. Jones[5]: The claimant was trying to go through the enclosure, but the defendant put two police officers to block the claimant’s path and prevent him from entering further into the field. He was told that he could go back but not forward. After half an hour the Claimant tried to push past whereupon he committed an assault on the Defendant and was arrested.

The court said that it is false imprisonment for a person to be forced to stay in a place just as much as locking them in a room. There need not be any touching either. However, it cannot be a false imprisonment to avert a person from going forward but allowing them to return the way they came, even if it is unlawful to stop them. The person no doubt suffers a wrong but not false imprisonment, possibly assault or battery if he is endangered or touched as he tries to get past. So here it was held that there was no wrongful restraint or confinement.

Read v. Coker:[6] D and his men surrounded P, rolling up their sleeves, and threatened to break P’s neck if he did not leave. P was a rent collector who entered D’s workshop and refused to go until the rent was paid.

It was held that this was an assault: the condition attached to the threat was not enough to nullify it.

Conclusion

Trespass can be faced by people innumerable times in a day, but what is important is to truly understand the nature of trespassed act, property, loss and impact of it on the plaintiff. If the nature of the act is itself suggestive of a wrongful incident, voluntarily undertaken to constrain the enjoyment of the right to exclude from the private property, then evaluation of all possible recourses to recoup the damage should be identified. The four tests[18], when deciding trespass disputes, courts should evaluate the following factors: (1) the nature and character of the trespass; (2) the nature of the protected property; (3) the amount and substantiality of the trespass; and (4) the impact of the trespass on the owner’s property interest.

It would help to uncover various facets and understand the dimensions that trespass law is clutching in its circuitous surrounding so as to loosen the screws and solve cases and situations in an efficacious manner. The true meaning of each term needs to be understood to evaluate trespass and resolve the cases by applying the relevant doctrines.

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Footnotes:

[1] Ram Balak alias Gauri Shanker vs Delhi Administration (1980)ILR 2Delhi1219

[2] See, Sec 351 of Indian penal Code 1860

[3] See, Sec 350 of Indian penal code 1860

[4] D. K. Basu v. State of West Bengal (1997) 6 SCC 642

[5] <http://www.legalservicesindia.com/article/article/concept-of-trespass-to-person-1073-1.html>accessed on 6/06/2016

[6] S. C. Thanvi, Law of Torts, p. 660

[7] S. C. Thanvi, Law of Torts, pp. 658-660

[8] See, Supra 1

[9] S.S. Tewari vs Om Prakash Srivastava and Anr., 1979 ACR 419

[10] Bandu v. Naba, (1890) 15 Bom. 238

[11] Sentini Cermica P. Ltd. Vs Kunchi Krishna Mohan and Ors., 2015(2)RCR(Criminal)150

[12] Amit Kapoor Vs Ramesh Chander and Anr.(2012)9SCC460

[13] Samira Kohli Vs. Dr. Prabha Manchanda and Anr, AIR 2008 SC 1385

[14] <https://indiankanoon.org/doc/96343465/>accessed on 5/06/2016

[15] AIR 1964 AP 382

[16] (1845) 7 QB 742

[17] <http://lawrevision.weebly.com/read-v-coker.html>accessed on 6/06/2016

[18] Depoorter, Ben. “Fair trespass” Columbia Law Review 111, no. 5 (2011): 1090-135. http://www.jstor.org/stable/41305148.

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