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Section 317 CrPC

By
Rachit Garg
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0

This article is written by Diksha Paliwal, a practising advocate in the High Court of Indore and a student of LLM (Constitutional Law). The article talks about Section 317 of the Code of Criminal Procedure and discusses in detail the provisions relating to the attendance and non-attendance of the accused during the trial.

It has been published by Rachit Garg.

Introduction 

The presence of the accused during a trial is an indispensable and crucial part of criminal jurisprudence. The provision for the same is enumerated under Section 273 of the Code of Criminal Procedure, 1973. This Section provides for the compulsory presence of the accused at the time of taking evidence while the trial is going on unless his presence has been duly dispensed with. However, the Indian criminal justice system provides for certain instances where the accused is exempted from personal appearance before the court. It is important to note that this exemption is not a matter of right but a provision exercised at the court’s discretion. The article discusses in detail the conditions for the presence of the accused and the exemption granted to the accused from personal appearance. 

Attendance of accused 

Procuring the attendance of the accused, witnesses and other relevant persons before the court is an essential requisite for the inquiry, investigation or trial. The general rule of criminal jurisprudence says that the accused must be present at the time of trial and the court should not proceed ex parte against the accused person. This provision of compulsory attendance of the accused ensures a free and fair trial, which is an important principle of natural justice. The Code of Criminal Procedure expressly provides that the trial must not be conducted in the absence of an accused. 

Section 204 CrPC

As soon as a proceeding commences before the Magistrate, he shall move forward with the issuance of the process as mentioned under Section 204 of the CrPC. The Section states that if the Magistrate is convinced that sufficient grounds exist to proceed against the accused, he shall issue a summons (in a summons case) to the accused for attendance or a warrant (in a warrant case) for appearance, as the case may be. It is important to note that no warrant or summons shall be issued by the Magistrate until and unless a list of prosecution witnesses has been filed.

The issue of process is a matter of the court’s discretion. The Magistrate before the issue of process shall examine the complainant. In the case of Rajendra Nath Mahato v. T. Ganguly, Dy. Superintendent of Police, Purulia (1972), it was held that the Magistrate who has not taken cognizance of a case cannot go ahead with issuing of process. 

When a Magistrate issues a process, he is primarily concerned about the allegations that have been mentioned in the complaint or the evidence produced before him in support of the complaint. The only requirement the Magistrate must satisfy is whether sufficient grounds are present or not to initiate further proceedings against the accused. Recording the reasons by the Magistrate for the issuance of the process is an essential requirement, and not doing so may render it violative of Articles 21 and 14 of the Indian Constitution. The recording of reasons is a critical component of procedural fairness while dispensing justice. Although an order passed under Section 204 is not a final order, it is still justiciable.

In the case of Poonam Chand Jain and Anr. v. Fazru (2004), the Apex Court held that an order passed under Section 204 is not open for review or reconsideration by the Magistrate. Thus, an order issuing process cannot be reviewed or reconsidered because the Code does not contemplate the review of an order in such cases. However, under certain exceptional cases, as held in this case and some other judgements as well, a remedy may be sought by the appellant under Section 482 of the CrPC.

Different ways for securing attendance

In the case of M/S. Bhaskar Industries Ltd. v. M/S. Bhiwani Denim and Apparels Ltd. (2001), it was held that the attendance of an accused in an inquiry or trial is a mandatory condition that needs to be followed by the Magistrate to enable the commencement of a trial. The Code mainly provides four methods for securing the attendance of an accused, which are;

Attendance by way of summons

A “summons” is a legal document that orders or directs a person to appear before a court or Magistrate. The term is not defined in the Code. However, an idea of what the term means can be understood by Section 2(w) of the CrPC. The term “summons case” is used for a case other than a warrant case. Ordinarily, the summons is the first legal notice that is received by the party to a criminal case, stating that a case has been instituted against them. The summons is issued in cases that are not serious and in which the maximum punishment is not more than two years of imprisonment.

A Summons is a clement form of process issued to enforce an accused’s appearance. Section 61 of the CrPC deals with the forms in which a summons is to be issued. A summons must bear the court’s seal along with complete details of the person being summoned. The procedure that states how a summons is to be served is mentioned under Section 62 of the Code, whereas the procedure for serving a summons on corporate bodies and societies is enumerated under Section 63 of the Code. The procedure for service in cases where the person to whom the summons is served cannot be traced is enumerated under Section 64. The other provisions concerning the service of summons are mentioned from Section 65 to Section 69 of the CrPC.

In the case of State v. Driver Mohmed Valli and Ors. (1960), it was held that “making of an order by a court to issue a summons” and “issuing of a summons” are two completely different things. 

Attendance by way of warrant of arrest

The term “warrant” means an order by the Magistrate passed to arrest a person, which includes witnesses as well and present him/her before the court. A warrant of arrest is a document authorising and commanding the concerned authority to arrest a person. Ordinarily, a warrant is issued in a warrant case. However, if the Magistrate deems fit, it can also be issued in a summons case, as mentioned under Section 204 (1)(b) of the CrPC. It can also be issued in instances of breach of a bond, as mentioned under Section 88 of the CrPC. Sections 70 to 81 of the CrPC deal with the provisions relating to warrants of arrest. 

Section 70 of the CrPC mentions the form in which an arrest warrant is made. The warrant of arrest should be in a form prescribed in Form No. 2, Second Schedule of the CrPC. Section 71 of the CrPC provides for the issuance of a bailable warrant. However, it does not empower the court to deliver the arrested person to someone else. In the case of Ram Achhaibar v. State (1988), it was held that a non-bailable warrant cannot be issued against an unwanted person. Section 72 of the CrPC specifies to whom a warrant should be directed. Usually, a warrant is directed to the police. However, this Section provides that, under certain circumstances, it can be directed to persons other than the police if the conditions demand so.  

In the case of State Through CBI v. Dawood Ibrahim Kaskar and Ors. (1997), it was held that a warrant issued under Section 73 of the Code is issued to direct a person to appear before the court only and not before the police. 

The police must inform the substance of a warrant to the person against whom a warrant is issued and if so required, shall show him the warrant also. 

Attendance by way of proclamation and attachment 

The courts have been empowered with sufficient powers to ensure the execution of warrants issued against an accused. Sections 82 to 86 of the Code deal with such powers of the court regarding the proclamation and attachment. In cases where a warrant is unexecuted, the court may issue a proclamation under Section 82 of this Code, or the property of the person against whom the warrant was issued can be attached as per Section 83 of the Code. Usually, in the first instance, the court issues a summons. In cases of failure on the part of the accused, the court shall issue a warrant of arrest. In a situation where the execution of the warrant also fails, in such a case the court may proceed with the issuance of proclamation (Section 82) and attach the property of the person (Section 83) who is eluding or dodging the service of process.

In the case of Dinesh Chandra Tiwari v. State of U.P. and Ors. (2000), the applicant’s name was present in the F.I.R. However, he was not challenged after the investigation. The evidence that was discovered showed the involvement of the applicant in the alleged offence. Based on the evidence that was procured, the trial court executed a non-bailable warrant against the applicant and simultaneously issued a process under Section 82. The Allahabad High Court held that the trial court is required to issue a summons first, and under the act of non-compliance with the summons, the court should have moved further with a non-bailable warrant and other processes. The court should not directly move forward with the issuance of a non-bailable warrant.

Other rules 

Sections 87 to 90 provide other rules that provide for the appearance of the accused. Section 87 of the Code provides for the issuance of a warrant as an alternative to or in addition to a summons. As provided under this Section, the court can do so in a case where there appears to be a reasonable possibility that the person against whom the summons is to be issued or has been issued already may abscond or l not obey the summons. However, the court must record the reason in writing for issuing the warrant. 

According to the provision provided under Section 88 of the Code, the court may ask for a bond or an amount of surety for the appearance of the accused.

The Code also provides for the provision of arresting the accused in case of breach of the bond of appearance. The court can order the arrest of such a person who has not complied with the direction of the court to appear before it. This provision is enumerated under Section 89 of the Code. In the case of Pannalal v. R.K. Sinha (1965), the Court held that Section 89 provides a right of cancellation of bond and orders a  rearrest of the accused or witness in case he fails to appear before the court.

Section 90 of this Code provides that the provisions of Chapter VI of the Code apply to all summons and warrant cases. 

Section 205 CrPC

All the cases in which summons are issued come under the purview of Section 205 of the CrPC. The Section provides for the condition that the Magistrate may dispense with the personal attendance of the accused. It states that if the Magistrate has enough reasons to issue a summons, he may dispense with the personal attendance of the accused and permit his pleader to appear on his behalf. However, if the Magistrate, as per his discretion, feels that the accused’s attendance is necessary at any stage of the proceeding, he may pass such order by issuing a summons. However, if a warrant is issued against a person, then the Magistrate cannot dispense with the accused’s personal attendance.

As for women, they do not possess any specific rights where they are exempted from appearing in court during an inquiry or a trial, but they should not be forced to appear before the court unless the conditions necessarily demand so. The court shall move forward with dispensing the accused’s attendance after considering several factors like her social status, customs and practices, and the intensity of her personal appearance in light of the nature of the offence and the trial stage. This view was opined by the Calcutta High Court in the case of Rajlakshmi Devi v. the State (1951).

In the case of S.V. Majumdar and Ors. v. Gujarat State Fertilizer Co. Ltd. (2005), it was held that the court shall consider whether any useful purpose will be served if the accused is brought for personal attendance. It shall further consider whether, in the absence of the accused’s attendance, the progress of the trial will be hampered while dealing with an application for dispensing the attendance of the accused. In case the Magistrate feels that the accused is seeking this application to cause a delay in the trial, he may refuse the accused’s application.

Section 317: an overview

As per the provisions of  Section 317 of the CrPC, the presence of an accused in a trial or inquiry can be exempted by the judge or Magistrate if the court deems it fit. This Section is almost the same as that of Section 540A of the earlier code (repealed), i.e., the Code of Criminal Procedure, 1898. The only change that has been carried out in the present Section is the addition of the word “or that the accused persistently disturbs the proceedings in court” in 317(1). 

Subsection (1) of this Section states that if the judge or Magistrate is satisfied that the personal attendance of the accused is not necessary for the interest of justice or if the accused interrupts the proceedings of the court at any stage of a trial or inquiry, proceed further with the trial, thereby dispensing the presence of the accused. Provided that the accused is represented by his pleader in court. Also, the Magistrate or judge has to record the reasons in writing if he orders such a dispensation. 

The second subsection of Section 317 of the CrPC provides that in case the accused is not represented by a pleader, or if the court considers his attendance necessary, then the court may either adjourn the trial or try the case separately. However, the judge or Magistrate shall positively record the reasons in writing. 

It is important to note that the provisions of Section 317 do not apply to the trials that are initiated under the Prevention of Corruption Act, 1988. However, an exception has been added to this well-settled principle of law after the insertion of Section 22(c) in the Prevention of Corruption Act, 1988. As per this subsection, the special judge has been entrusted with the power to proceed with the trial or inquiry at any stage in the absence of the accused or even his pleader. Although subsections (1) and (2) do not apply to such trials.

Scope and applicability of Section 317 CrPC 

This Section 317 empowers the court to proceed further with the trial or inquiry, thereby dispensing with the personal attendance of the accused. This is done by the court if the accused’s attendance is not felt necessary keeping in view the interest of justice or if the court finds the accused’s presence creating a disturbance in the trial. However, if in the later stage of the trial or proceedings, the court finds the accused’s presence necessary, then the court may order the accused to attend the trial or proceeding.

The term “inquiry,” which has been used in this Section is defined under Section 2(g) of the CrPC, whereas the term “trial” connotes the stage when a change has been made, read, and finally explained to the accused. In the case of Dhiria and Ors. v. Jai Narain and Anr. (1969), it was held that the proceedings begin as soon as the Magistrate takes cognizance of the offence and examines the complainant and the witnesses as prescribed under Sections 200 and 202, respectively. The court went on to say that all the proceedings after this fall under the purview of an inquiry, and the accused can file an application under this Section even while such an inquiry is pending.

In the case of Haranahalli Ramaswamy v. K. Shama Rao S/O Hanumantha Rao (2009), it was held that the accused under this Section cannot be granted a permanent exemption for appearing before the court. Also, he shall be granted such an exemption only on a legally acceptable ground and not on some unnecessary or irrational ground.

When can the attendance of the accused be dispensed with

An accused’s personal attendance can be exempted or dispensed with either under Section 205 or Section 317 of the CrPC. A joint reading of the two sections makes it crystal clear that an accused’s presence can be exempted at any stage of the inquiry or trial. Several factors like the circumstances of the case, the accused’s condition, and the necessity of the accused’s personal attendance are taken into consideration while exempting or dispensing with the attendance of the accused during a trial or an inquiry. The facts and circumstances of the case solely determine whether the accused shall be granted the exemption or not. Usually, an accused’s personal attendance is compulsory in cases of serious offences that involve moral turpitude. However, if the punishment for offences is fine only, exemption from personal attendance has become a rule, and for the former situation, the presence of the accused is the rule. This view was reiterated by the Apex Court in the case of Sushila Devi v. Sharda Devi (1960).

Ordinarily, the court allows the application of the accused and exempts him from appearing in the inquiry or trial, where the accused’s attendance may cause disturbance and inconvenience in the proceeding. Also, it should be noted that the comparative advantage should not outweigh the absence of the accused. The court has time and again emphasised this point while dealing with applications under this Section, the cases of M/S. Bhaskar Industries Ltd. v. M/S. Bhiwani Denim and Apparels Ltd. (2001) and Durowelds Pvt. Ltd. and Ors. v. TISCO (2002) are two such cases.

The nature of the allegations, the quantum of prejudice to the complainant based on the presence of the accused, the conduct of the accused, and the distance at which the accused resides or carries his business are some other factors that should be considered by the court while dealing with an application under this Section. The court shall emphasise the presence of the accused only when it is in the interest of the accused to be present at the trial or if the Court deems it necessary for the fair and effective disposal of the case. Take, for instance, an accused’s presence, which is crucial in the identification of the witnesses. Also, the High Courts and Supreme Court have held in various instances that the court shall deal with these applications liberally in trivial and technical cases where the accused is an old person, a sick man or woman, a woman, a factory worker, or a daily wager.

Application for exemption from personal attendance of accused  

An accused is entitled to file an application for exemption from appearing personally in court either under Section 205 or under Section 317 of the Code, as the facts and circumstances of the case may be. In a case where only summons have been issued, the accused can file an application under Section 205. When the trial or inquiry is pending, the accused can seek an exemption under Section 317 of the Code. The accused can file such an application through his pleader, or he can ask the court himself for exemption by providing the reasons behind his plea for exemption. There is no hard and fast rule expressly provided under the code that clarifies the conditions in which such an exemption is to be granted. The grant of exemption is however a discretion of the court and is not a matter of right. However, as discussed above and quoted in a plethora of judgments, the court must not unnecessarily enforce the presence of an accused, even if the trial or inquiry does not necessarily demand the accused’s presence.

In the case of Lalit Mohan Deb Burman v. Haridoy Ranjan Deb Burman (1956), it was held that the applicant is not necessarily required to file a written application under this Section. The Magistrate has the authority to move forward in the presence of an oral application also. 

In the case of Arvind Kejriwal v. State of U.P. (2015), it was held that Sections 205 or 317 of the CrPC, which provide an exemption to the accused, will not apply in warrant cases until and unless the accused has been released on bail or has furnished bail bonds.

The courts in various instances have given the exemption to the accused by using the term “incapable of remaining before the court.” This term connoted that the accused is not physically fit or denoted the physical inability of the accused to be present before the court. However, it is not necessary that this incapability only denotes physical ailments. There may be some other reasons also that render the accused from coming before the court. Also, in the case of Trilochan Misra and Ors. v. the State (1951), it was held that a mere point of heavy expenditure or inconvenience in travelling to the court will not render the accused incapable of coming to the court.

How is Section 317 different from Section 205 

Although the two Sections have a wide range of similarities, they both have a clear distinction from each other. Section 205 comes into the picture even before the charges are framed, and the proceedings have just begun. Under Section 317, the accused can be given an exemption when the trial or inquiry of a case is pending, whereas, in Section 205, such an application is filed at an early stage, at the time when just summons have been issued. This view was clarified by the court in the case of Aditya Pd. Bagchi v. Jogendra Nath Maitra (1948), which was again reiterated in the case  Sultan Singh Jain v. the State (1951). 

Section 317 deals with exemption after the commencement of a trial or inquiry and has a scope till the expiration of the trial, and Section 205 deals with exemption at the beginning of the proceedings. Although in both Sections the court can dispense with the accused’s attendance even in the absence of prayer by the accused if the Magistrate thinks that the accused’s absence won’t hinder the course of justice. However, he shall record the reasons in writing. By Section 205, the accused can be allowed to make even his first appearance before the court through his counsel.

Another important distinction between the two is that Section 205 can only be exercised by a Magistrate. However, powers provided by Section 317 can be exercised by both the Sessions Judge as well as a Magistrate. 

Also, it is crucial to understand that both of these Sections are in respect of dispensing the trial in relation to the accused only. It does not apply to the complainant. In cases of the complainant, the personal presence of the complainant is not necessarily required at every hearing, except in the cases of a private complaint.

Judicial pronouncements 

Sushila Devi v. Sharda Devi (1960)

Facts of the case

In the present case, the applicant, Sushila Devi, through her son, filed an application for revision, aggrieved by the simultaneous orders passed by the Magistrate and the Sessions Judge who had dismissed the applicant’s plea for dismissing the complaint that had been filed against her. She was charged under Sections 494, 496, and 109 of the Indian Penal Code, 1860. Along with the quashing of the complaint that had been filed against her, she also pleaded that she might be exempted from personal attendance as per the provision enumerated under the Code of Criminal Procedure.

Issues

The issue before the Court was to determine if she should be given an exemption from personal attendance and to establish some general principles that can be applied in similar cases.

Judgement and observation

The Madhya Pradesh High Court held that the permission to grant exemption from personal attendance is exercised after considering numerous factors, like the circumstances of the case, the accused’s condition, and the gravity of his personal attendance. However, since each case is different from the others, the final decision will solely depend on the facts and circumstances of the case. Usually, it is a rule that an accused should be personally present in cases involving serious offences. On the contrary, in cases that involve petty offences punishable with a fine only and do not involve moral turpitude, then exemption from personal attendance is the rule. In this particular case, the Court held that since the offences were punishable with seven years imprisonment and a fine, the Magistrate was right in dismissing the accused’s application seeking to dispense with her attendance.

Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. (2000)

Facts of the case

In this case, M/S. Bhaskar Industries Ltd., an appellant company in the present case, filed a criminal complaint before the Judicial Magistrate of First Class, Bhopal, against 15 accused under Section 138 of the Negotiable Instruments Act, 1881. The first accused is a company registered in Haryana, whereas the second accused is the Managing Director of that company, and the rest of the accused are persons related to the first accused. After receiving the complaint, the Magistrate issued summons to all the accused after taking cognizance of the case. This Special Leave Petition filed before the Apex Court is concerning an interlocutory order passed in respect of the second accused’s case.

Later on, it was found that the second accused was not found at his residence and other members of his house refused to accept the summons. Hence, the notice was affixed by the authorities on the accused’s residence. Owing to this the Magistrate issued a non-bailable warrant against the second accused. Thereafter, the accused filed an application for exemption from personal attendance. The Magistrate without deciding the said application ordered the release of the accused on bail if arrested and directed the accused to be present before the Court to furnish security by executing a bond of Rs. 5000/-. 

All the 15 accused filed a revision petition against this order of the Magistrate before the Sessions Judge. The order of the Magistrate was set aside by the learned Sessions Judge. This decision of the learned Sessions Judge was challenged before the High Court. However, the decision of Sessions Judge was upheld by the High Court. Hence, the appellants preferred this petition before the Hon’ble Apex Court.

Issues

The Hon’ble Court had to first decide whether the order that was challenged before the High Court could have been entertained or not. 

The other issue that the court had to decide was whether the Magistrate has the power to dispense with the accused’s presence in the proceedings either throughout or at any particular stage of proceedings in a summons case, especially in the case when the Magistrate feels that the person’s presence may inflict sufferings upon him and that the comparative advantage would be less.

Judgement and observation

The order of the Sessions Judge was set aside by the Apex Court, and the second accused was given the liberty to file a fresh application for exemption from personal attendance. The Court held that in general instances the application seeking exemption shall be allowed especially when insisting the presence of the accused may cause serious difficulty and inconvenience. Also, if the comparative advantage of the accused’s presence does not outweigh the absence of the accused, then the court shall consider giving an exemption to the accused from personal appearance. The Court further held that it is well within the power of the Magistrate to dispense with the accused’s presence throughout or at any particular stage of the trial. 

The Apex Court further relied on these principles in the case of Puneet Dalmia v. Central Bureau of Investigation (2019).

Kajal Sengupta v. M/S. Ahlcon Ready Mix (2012)

Facts of the case

In this case, the petitioner filed an application to quash the order of the subordinate court. A complaint was filed against the petitioner by the respondent under Section 138 of the Negotiable Instruments Act, 1881. The petitioner filed an application under Section 482 of the Code for quashing the complaint along with filing an application for exemption from personal appearance. The court directed the petitioner to file the application for exemption before the concerned Magistrate and dismissed the plea to quash the complaint. The learned Magistrate allowed the petitioner’s application for exemption from personal attendance. The respondent filed for revision of the learned Magistrate’s order for granting exemption from personal appearance. Later on, the Magistrate directed the petitioner to appear before him personally and not through his counsel. Being aggrieved by this, the petitioner filed an application for quashing of the complaint and to allow her to be represented by her counsel.

Issues

The issue before the Hon’ble High Court was to decide whether the petitioner shall be exempted from appearing before the court and to allow her to be represented by her counsel.

Judgement and observation

The petition was dismissed, and the court directed the petitioner to be present on the next date of the hearing. The Court went on to say that if the Magistrate after looking at the facts and circumstances of the case, is of the view that great hardship and inconvenience will be caused to the accused, then he can dispense with the accused’s personal attendance and allow him to appear through his counsel. However, this exemption shall not hamper or delay the trial. Even if the Magistrate has exempted the accused’s personal appearance, he can still ask the accused to be present before the court at any stage of the trial if deemed necessary. The permanent exemption from attending shall not be considered a blanket order exempting the accused from attendance, and this shall be subject to the provisions of Sections 205(2) and 317(1) of the CrPC.

Cardinal Mar George Alencherry v. Joshi Varghese & Ors. (2022)

Facts of the case

In the present case, the accused filed an application to exempt himself from appearing personally before the court. The applicant pleaded before the Hon’ble High Court of Kerala to direct the Judicial Magistrate of First Class to exempt the accused from personal attendance. The case against the accused was instituted by way of filing private complaints by the respondents. The offences for which the accused was charged were; Section 406, 423, 120B read with Section 34 of the Indian Penal Code, 1860. Summons were issued to the accused by the Magistrate. Thereafter the accused filed an application for exemption from attending the proceedings. Even before deciding the applications, the court directed the accused to appear in person. 

Issue

Whether the Court shall insist on the accused’s personal attendance or shall allow the application of the accused regarding the direction to the Magistrate?

Judgement and observation

The Kerala High Court held that when an accused is seeking exemption from a first appearance, the standards that are to be applied should be more stringent. It further dismissed the petition of Cardinal Mar George Alencherry, who was accused in the matter of an illegal sale of the land that belonged to the Church. The grant for exemption from appearing before the court is a matter of the court’s discretion.

S. Nalini Jayanthi v. M. Ramasubba Reddy (2022)

The applicant S. Nalini, in the present case was charged under the offence of Section 138 of the Negotiable instruments Act, 1881. In the case that was instituted against her, she filled out an application for the transfer of the case at her convenience. The Apex Court dismissed her plea of transfer of petition. However, the court held that the applicant being an old woman, can always seek for exemption from personal appearance.

Ajay Kumar Bisnoi v. M/S.Kei Industries Limited (2015)

In the case of Ajay Kumar Bisnoi, the Madras High Court held that the Magistrate while passing an order for exempting the accused from the personal presence, should maintain a balance between the two things, namely, the order shall not prejudice the complainant, and the order for the attendance of the accused if passed, shall not cause unnecessary inconvenience and hardship to the accused.

Conclusion 

Section 317 of the CrPC deals with the provision for granting the accused exemption from personally appearing before the court and further allows him to be present in the proceedings through his counsel. The Code does not provide for a specific list of offences under which such an exemption shall be granted or a list of offences under which such exemption shall not be granted. However, the courts in various cases have held that when the presence of the accused will cause enormous difficulties and inconvenience to the accused, he shall be exempted from appearing personally. The litigants shall be insisted to be present before the courts only if it is absolutely necessary. Also, in cases which involve moral turpitude, the courts have held that the presence of the accused becomes necessary.

Frequently Asked Questions (FAQs) 

Is the presence of the accused necessary at the time of passing of an order?

The presence of an accused is not necessary at the time of passing of an order if the accused was present in the proceedings in previous hearings.

Can an accused in a later stage claim that the exemption was wrongfully granted to him?

It was held in the case of Aditya Pd. Bagchi v. Jogendra Nath Maitra (1948), the Allahabad High Court held that a trial cannot be held null and avoid if an order has been passed in the absence of the accused, where he filed an application for grant of exemption from appearing before the court. He cannot say that the exemption was wrongfully granted to him.

Can the court insist on the personal appearance of the accused?

The court is empowered to insist on the presence of an accused, but only if the accused’s presence is absolutely necessary. However, the court shall duly observe that no harassment shall be inflicted upon the accused appearing before him.

Can an accused be granted relief from personal appearance if simultaneous criminal cases are going against him in different courts?

The Apex Court in the case of Narinderjit Singh Sahni and Anr v. Union of India and Ors. (2001), held that an accused cannot be necessarily granted exemption from personal appearance only on the ground that simultaneous cases are going against the accused in different courts. However, the accused is entitled to file such an application before the concerned court.

References 

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National Security Act, 1980

By
Sneha Mahawar
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0
Armed forces

This article is written by Gautam Badlani, a student at Chanakya National Law University, Patna. This article examines the objective and significance of the National Security Act, 1980, thereby providing an overview of the Act and analysing the landmark judicial pronouncements on the Act. It further analyses the preventive detention laws in other countries.  

This article has been published by Sneha Mahawar.​​ 

Introduction

Entry 9 of List I (the Union List) and Entry 3 of List III (the Concurrent List) empower the Central Government and State Governments, respectively, to frame laws concerning preventive detention. Thus, it is clear that the makers of the Constitution deemed it necessary to expressly provide the Government with the power to frame preventive detention laws. 

Section 151 of the Code of Criminal Procedure also stipulates a preventive detention mechanism and empowers a police officer to arrest any person without a warrant or order of a magistrate if the officer believes that an offence is likely to be committed which cannot be prevented otherwise than by such arrest.  

The National Security Act was passed in the year 1980 with the aim of maintaining law and order in the country. For this purpose, it also authorises the preventive detention of any person. This article gives an overview of the Act and analyses the various judicial pronouncements related to the Act. The article further discussed the preventive detention laws in other countries and suggests ways to improve the effectiveness of the National Security Act, 1980. 

arbitration

Historical Background

The history of preventive detention laws in India can be traced back to the East India Company Act, 1784, which permitted the authorities to detain any person who was acting in a manner prejudicial to the British interests and British possessions. Preventive detention was used by the British during the two World Wars, and it was justified as being necessary to deal with extraordinary circumstances arising out of the World Wars. 

After Independence, the Preventive Detention Act, 1950 was passed, which placed extraordinary powers in the hands of the government to detain a person for the purpose of preventing him from committing any unlawful act. It is pertinent to note that the majority of the provisions of the National Security Act are inspired by the provisions of the Preventive Detention Act. This Act remained in force until 1969.

Subsequently, the Maintenance of Internal Security Act, 1971, was passed. There have been allegations of blatant misuse of this Act during the emergency period. This Act was repealed in 1978. Subsequently, the National Security Act, 1980 was enacted. 

Object of National Security Act

The objective of preventive detention measures is often misconstrued by the general public as well as the government. The aim of preventive detention measures is to prevent a person from committing an offence. It aims at anticipating that a person might commit an offence in the future and detaining him in order to prevent him from committing the offence. The preventive detention measures are not intended to be applied in cases of ordinary and general breaches of law and order. However, yet we see that in many cases, the National Security Act is invoked against people who are doubted to have committed any grave offence.  Such people must be tried under substantive laws dealing with the suspected offence. Preventive detention is a preventive measure and must be used in such a manner.

Overview of the Act

Detention order

Under Section 3 of the Act, the Central Government or the concerned State Government can order the detention of a person in order to prevent him from adversely affecting the security of India, defence of India, India’s relations with foreign nations, the maintenance of public order, or the supply of essential supplies. The Central or State Government can also order the detention of any foreigner if it is necessary for his expulsion from the country or to regulate his stay in the country. 

The State Government can also authorise the Commissioner of Police or the District Magistrate of any area to exercise such powers, provided the State Government is satisfied that such empowerment is essential in view of the circumstances prevailing in the concerned area. The Commissioner of Police or the District Magistrate, as the case may be, has to forthwith inform the State Government of the detention order along with the reasons for such an order. The order passed by the concerned officer will remain in force for a period of 12 days, and the approval of the State Government has to be obtained within this period in order to continue the detention beyond 12 days. 

Where the detention order has been passed by the State Government, the order will remain in force for a period of 3 months. However, the State Government may subsequently extend the period from time to time for a maximum of 3 months at a time. 

Where the State Government has itself ordered the detention or has approved the detention order passed by the concerned officer, it has to inform the Central Government about the order within 7 days. 

Section 4 provides that the detention order can be executed at any place throughout the territory of India.

It is pertinent to note that Section 5A provides that where the detention order has been made on several grounds, it would be deemed that a distinct order has been passed on each of the grounds.   Therefore, even if one or some of the grounds are vague, irrelevant or unclear, it would not render the detention order invalid and the order would survive on the remaining valid grounds. 

Section 13 provides that the maximum period for which a person can be detained under this Act is 12 months.

By virtue of Section 16, if any action is taken by the Central Government or the concerned state government under this Act in good faith, then no legal proceeding or suit can be brought against the government for the same. 

Communication of grounds for detention

By virtue of Section 8, the grounds of detention have to be communicated to the detained person as soon as possible. Such communication must preferably be made within a maximum period of 5 days and, in exceptional cases, within a maximum period of 15 days. 

The detenu should be provided with the earliest opportunity to make a representation against the detention order. 

In the recent case of Devesh Chourasia v. District Magistrate, Jabalpur (2022), the petitioner had been detained by an order passed under Section 3 of the Act. The court noted that the petitioner’s representation against the detention order was not considered expeditiously, and the rejection of such representation was not communicated to the petitioner in a timely manner by the Central and State governments. Resultantly, the two-judge bench of the Supreme Court set aside the detention order and the extension that was granted to the detention. 

Advisory boards

By virtue of Section 9, the Central Government or the State Government has to constitute the advisory boards whose primary task would be to advise the government whether there is sufficient cause for the continuation of the detention or not. 

The advice report would consist of 3 persons, and such persons must either be or should have been High Court judges or should be qualified to be High Court judges. 

Section 10 provides that the Central or State Government has to refer the detention order to the advisory board within 3 months of the order along with the grounds on which the order has been passed, the representation made by the detenu and, where the detention order has been passed by an officer authorised by the state government, the report of the officer. 

Section 11 stipulates the procedure to be followed by the Advisory Board. The advisory board will submit its report to the government after considering the materials placed before it and may also direct the government or any other person to produce any material that the board considers relevant to the matter. The board may also provide an opportunity to be heard to the detained person if it considers it necessary. The Board has to submit its report to the government within 7 weeks of the detention. Moreover, Section 11 expressly provides that the detained person cannot claim a right to be represented by a legal practitioner of his choice before the Advisory Board. 

The report submitted by the advisory board is confidential, except for the part that contains the opinions of the board. 

Section 12 provides that where the Advisory Board is of the opinion that there is sufficient cause to continue or extend the detention, the concerned government may order the extension of the detention. On the other hand, if the Advisory Board is of the opinion that there is no sufficient cause to continue with the detention, then the appropriate government is obligated to revoke the detention order. 

Exception 

Section 14A envisages the circumstances in which a person can be detained for a period extending 3 months without obtaining the opinion of the advisory board. A person can be detained for a period extending three months without referring the matter to the advisory board in the following circumstances;

  • Where the person is detained to prevent him from interfering with the government’s efforts in preventing terrorist activities.
  • The person is detained in order to prevent him from acting in a manner that would adversely affect the security of India, defence of India, supply of essential services, maintenance of public order or security of the state.

The question has time and again arisen before the Courts as to what are the standards upon which an act would qualify to be prejudicial to the maintenance of public order. The expression “public order” was defined by the Apex Court in the case of Kanu Biswas vs State of West Bengal (1972) The Court noted that public order concerns the general tempo of the country or a specific locality. The public order is disturbed by those acts that affect the tempo of the community and incite its members to commit a breach of the law.

In the case of Arun Ghosh v. State of West Bengal (1969), the Apex Court further clarified that it is the degree of disturbance caused by an act in society that determines whether it is prejudicial to the public interest or not.  

However, in such a scenario, the person shall not be detained for a period extending 6 months without obtaining the opinion of the advisory board with respect to the sufficiency of cause for detention. 

Constitutional provisions dealing with detention 

The Indian Constitution expressly provides that the government shall have the power to detain a person under preventative detention laws. 

Constitutional safeguards

The Constitution also provides certain rights to detained persons. Article 22 of the Constitution provides the following rights to the detained person: 

  • Article 22(4) provides where the person has been detained under a preventive detention law, he cannot be detained for more than 3 months unless the Advisory Board has recommended that there is sufficient cause for continuing the detention. It is pertinent to note that by virtue of the Constitution (Forty-Fourth) Amendment Act, 1978, the maximum period for which a person can be detained without obtaining the advisory Board’s opinion, was reduced from 3 months to 2 months. However, this mandate has not been given effect by a suitable amendment to the National Security Act. 
  • Article 22(5) provides that the detained person has the right to be informed of the grounds of detention as soon as possible and should be provided with an opportunity to make a representation against such detention.

In the case of Shibban Lal Saksena v. State of Uttar Pradesh (1953), the petitioner was detained under the Preventive Detention Act on the basis of two grounds; firstly, that his activities hindered the supply of essential commodities, and secondly, that his activities hindered the maintenance of public order. The matter was referred to the Advisory Board, and the Board, in its opinion, stated that the first ground was non-existent. The issue that arose was whether the detention should be continued solely on the basis of the second ground when the first ground was declared invalid by the Board. The Court noted that holding that the order was valid solely on the basis of the second ground would be to apply a subjective test of the executive decision instead of an executive judicial test. If the Board is of the opinion that the grounds are non-existent or unsubstantial, then the detention order would be vitiated as a whole. 

  • Article 22(7) provides that the Parliament may prescribe the circumstances under which a person can be detained for more than 3 months without obtaining the opinion of the Advisory Board. Moreover, the Parliament can also prescribe the maximum period for which a person can be detained under the preventive detention law. 

Constitutionality of the National Security Act

The constitutionality of the National Security Act was challenged in the case of AK Roy v. Union of India (1981). 

In this case, the constitutionality of the Act was challenged on the ground that it is a draconian law that places arbitrary and excessive powers in the hands of the executive. The petitioner thus contended that the Act was violative of Articles 14, 19, and 21. The Court made the following observations in this regard: 

  • The court pointed out that the Act also contains certain inherent safeguards to prevent the arbitrary exercise of power. For example, where the detention is made by an order of the District Magistrate or the Commissioner of Police, the officer making the detention order is required to communicate that decision forthwith, along with the reasons, to the State Government. 
  • The court pointed out that preventive detention without trial is evil, but such evil has to be suffered to the minimum extent as required for the protection of the collective interests of the society. The Court observed that when a person is detained, his family members or friends should be informed of such detention in writing. Mere detention does not deprive the detained person of all his fundamental rights. 

Moreover, the petitioner had also challenged the constitutionality of Section 3 of the Act on the ground that the terms such as “security of the state,” “relations of India with foreign powers,” etc., used in Section 3 are vaguely defined and are very wide in their scope, and therefore, the Section must be struck down. 

Thus, the application of the Section was based on the personal opinion of the authority empowered to detain a person. However, the rule of law requires that a person know with certainty the distinction between what qualifies as lawful and unlawful conduct. In the case of Section 3, in the absence of any precise definition, this requirement was not satisfied. The Court made the following observations in this regard:

  • The court pointed out that the expressions used in Section 3 are of such a character that they are not capable of being defined in a precise manner. Thus, a minimal degree of latitude has to be given to the Government in order to enable it to effectively implement the preventive detention laws. 
  • The Court pointed out that, at any rate, a court of law when faced with the question of whether the concerned action falls within the expressions used in Section 3 or not, would be able to determine an acceptable answer by the application of the judicial mind.  
  • The Court, while refusing to strike down Section 3, observed that such laws must be interpreted narrowly by the Court and their application must be confined to as few situations as possible.  
  • With respect to Section 3(2), the Court pointed out that it permits the detaining authority to detain a person for hindering the maintenance of essential services and supplies to the community. However, what constitutes essential supplies and services is up to the discretion of the detaining authority and this discretion is capable of being misused. However, at the same time, the provision is essential to ensure that essential services and supplies are steadily provided to the community, and thus, Section 3(2) cannot be struck down. 
  • The Court attempted to strike a balance between the protection of the personal liberty of individuals and the large interests of the community by holding that the services and supplies which are regarded as essential to the community must be made known appropriately to the public in advance through any order, law or notification and only after such communication, the detention order can be made. 
  • The petitioners had also challenged the denial of the right to consult a legal practitioner to the detenu as being unreasonable and arbitrary. However, the Court pointed out that Article 22(1) provides that every arrested person shall have the right to be represented by a legal practitioner of his choice but at the same time, Article 22(3) excludes the application of Article 22(1) in cases where a person is detained under the preventive detention law. Thus, the denial of this right to the detenu could not be termed as unreasonable. 

Judicial Pronouncements 

Ranveer @ Raman vs State Of Madhya Pradesh (2022)

Facts 

In the case of Ranveer @ Raman v. the State Of Madhya Pradesh (2022), the District Magistrate of Indore had passed an order for the petitioner’s detention by exercising the powers conferred on him by virtue of Section 3(2) of the Act. The grounds of detention were communicated to the petitioner, and he was provided with the right to make a representation against the order. The detention order was made on the basis of the four criminal cases that were registered against the petitioner. The petitioner approached the Madhya Pradesh High Court and filed a writ petition against the detention order. 

Arguments

The petitioner contended that he had not been convicted in any of the cases that were registered against him and that the detention order was passed with an ulterior motive. 

The respondents pleaded that all the procedural requirements had been observed. The petitioner was informed of the grounds for his detention; his relatives were informed of the date of his arrest; and the petitioner was informed that he had a right to appear before the advisory board. The detention order was made in view of the fact that the petitioner was involved in criminal activities that were prejudicial to public safety. 

Judgment 

The Court noted that the offences with which the petitioner was charged were bailable and the petitioner had been detained merely on speculation. The Court noted that a person can be detained if the executive is of the opinion that the person might engage in acts prejudicial to public order. Public order is different from law and order and if the act of the person merely disturbs one person and does not affect the ‘tranquillity’ of the society, then it would not be prejudicial to public order. 

The court noted that one of the cases had been registered in 2016, and it was 6 years later that the detention order had been passed. The Court observed that a person cannot be detained merely on the ground that he is likely to get bail. The concerned authority is empowered to pass a detention order while the accused is in jail, but the authority must give due regard to the fact that the person was already in custody at the time when the order was passed, and there must be cogent reasons on which the authority may pass the detention order.

The High Court concluded that the detention order passed by the District Magistrate was unsustainable and thus must be set aside. 

Ram Sewak v. State of UP (2022)

Facts

In this case, the petitioner was accused of committing the rape and murder of a 10-year-old girl and had been charged under the relevant sections of the Indian Penal Code and the Prevention of Children from Sexual Offence Act, 2012. The petitioner was arrested and subsequently preferred a bail application. While his application for bail was pending, the detention order was passed by the District Magistrate based on the report of the Sponsoring Authority.

The petitioner approached the High Court and pleaded for the issue of a writ of certiorari for quashing the detention order that had been passed against him by the District Magistrate. 

Arguments

The petitioner contended that the alleged incident had taken place in a secluded place and could not be said to have disrupted public order. The matter could have been dealt with under ordinary laws, and detention under the National Security Act was not required. 

The respondents, on the other hand, submitted that, in view of the gruesome nature of the offence, it disrupted the public order and tempo of the persons living in the concerned area. 

Judgment

The Court primarily noted that merely because an offence had been committed in a secluded area did not mean that it could not disturb public order. The factors to be considered are the degree of disturbance and the extent to which it affects the lives of the individuals living in the concerned locality. 

The Court pointed out that if a man molests women in secluded places, he makes all women apprehensive for their safety, and this affects public order and disturbs the community. 

The alleged offence led to an environment of fear and made the people of the locality angry, who had collected in large numbers. There was a state of fear among the people with regards to the safety of women, and there was tension in the area for several days. 

Police personnel were called from the nearby police stations to meet the requirements of the situation and the police had to be deployed to restore public confidence. The Court noted that the District Magistrate was of the opinion that the petitioner might repeat such acts if released on bail and thus had passed the detention order. 

The Court thus held that the Magistrate had correctly formed his opinion and refused to interfere with the detention order made by the Magistrate. 

Abhayraj Gupta vs Superintendent, Central Jail (2021)

Facts

In this case, the petitioner was apprehended in relation to a case of murder. The firing incident, resulting in the death of the deceased person, had taken place at the PWD Office. When the police tried to arrest the petitioner, he fired at the police personnel. Subsequently, the petitioner was taken into custody. 

The District Magistrate passed the detention order under Section 3 of the Act based on the aforementioned incidents. The detention order provided that due to the firing incident, the students of a college adjacent to the PWD Office panicked, and the guardians of the students had expressed their concern to the college administration.

The petitioner had approached the High Court under Article 226 and prayed for the issue of a writ of habeas corpus and a writ of mandamus to direct the concerned authorities to release him from detention. 

Arguments 

The following objections were raised by the petitioner against the detention order

  • The alleged incident qualified to be a law and order situation but did not affect the public order.
  • The firing incident had taken place in December, 2019 but the detention order was made in January 2021. Hence, there was no proximity between the two.  
  • The entire material on which the magistrate had relied on for passing the detention order had not been provided to the petitioner.
  • A copy of the report of the advisory board was not provided to the petitioner.
  • The petitioner was already in custody at the time when the detention order was made and he had not even applied for bail in relation to the third FIR lodged against him.

Judgment

The Court noted that if an act creates apprehension, fear, and a feeling of danger in the minds of the members of the community, then it can be deemed to disturb the public order. The contravention of any law affects order, but it affects public order only if it affects the community or the public at large. 

The High Court referred to the case of Sheshdhar Misra v. Superintendent, Central Jail, Naini (1985) and pointed out that every murderous assault incident in a public place, which can be equated to an ordinary murder, cannot be regarded as disturbing public order. Its impact cannot be said to be so fearsome and widespread that it would affect the tempo of the community.

The Court pointed out that the detention order did not provide any reasonable basis to suppose that the petitioner, if released on bail, would engage in acts prejudicial to public order. It did not provide any input as to the last activity of the detenu that would suggest that he might engage in acts similar to the alleged incident. 

The alleged incident had taken place 14 months prior to the detention order, and hence, the detention order has no proximity to the incident. Moreover, the petitioner was entitled to receive the entire material upon which the detaining authority had relied, and the same had not been provided to the detenu. 

The Court thus concluded that the detention order was unsustainable and allowed the writ petition. 

International Perspective on Preventive Detention 

Germany

Section 66 of the German Criminal Code permits preventive detention of offenders. In Germany, the Courts are empowered to order preventive detention for convicted offenders in addition to the prescribed sentence. The purpose of such a provision is to protect the general public from habitual offenders. It is pertinent to note here that in Germany, prison sentences are generally shorter as compared to other countries. The preventive detention laws in Germany have also been the subject of much controversy due to the challenges that these laws faced before the European Court of Human Rights.

M v. Germany (2009)

In the landmark case of M v. Germany (2009), the appellant was a habitual offender who had been convicted several times for offences such as murder, theft, etc. In 1986, he was sentenced to 5 years’ imprisonment for committing the offences of robbery and murder and the trial court had also ordered preventive detention in addition to the term of imprisonment. The appellant continued to stay in preventive detention after the expiry of the term of imprisonment, and he was in detention till 2001. In 2001, a court refused his appeal to be released from detention. 

In Germany, the maximum period for which a person could be detained was 10 years. However, the same limit had been removed by an amendment in 1998. The appellant challenged the refusal of his appeal before the Federal Constitutional Court of Germany on the ground that he had been placed in preventive detention prior to the coming into force of the amendment and therefore his detention could not be extended by virtue of the amendment. However, his appeal was rejected. 

Thereafter, the appellant approached the European Court of Human Rights. The appellant contended that the extension of his detention was violative of Articles 5 and 7 of the European Convention of Human Rights. Article 5 illustrates the circumstances in which a person can be detained. It provides that a person can be deprived of his liability for lawful detention subsequent to conviction, for non-compliance with a court order, to prevent him from committing any offence, to prevent him from spreading infectious diseases, or to prevent him from entering any country in an unauthorised manner. Article 7 provides that no person can be punished for committing any act or omission which was not an offence under any national or international law at the time when it was committed. 

The European Court of Human Rights pointed out that the German Courts erred in ordering the detention of the appellant beyond the ten-year period. The courts were imposing a penalty that was heavier than what was prescribed at the time when the offence was committed by the appellant. There was no causal relationship between the appellant’s conviction and his extended detention. Thus, the Court rules that the additional penalty could not be imposed retrospectively. Subsequently, the Federal Constitutional Court also held that the retrospective application of the amendment constituted a serious encroachment on the liberty of individuals. 

United States

In the United States, the Bail Reform Act, 1984 empowered judicial officers to order the preventive detention of convicted persons. The detention provisions under the Act were challenged in the case of United States vs Selena (1987). It was contended that the Act violated the due process clause provided under the Fourteenth Amendment of the US Constitution. The court pointed out that the persons detained under the Act must be kept separate from the convicted persons; the Act constituted permissible regulation and not punishment. The court observed that the detention stipulated under the Act was for the purpose of securing public safety. 

Thereafter, provisions relating to preventive detention have been incorporated in several state legislations. However, it is pertinent to note here that several constitutional safeguards are also available against detention laws. The Sixth Amendment of the US Constitution provides that in criminal prosecutions, the accused has a right to a speedy and public trial. The Fourteenth Amendment of the US Constitution provides that no person can be deprived of his liberty except according to due process of law/. Thus, the laws providing for preventive detention are also required to comply with the requirements of the ‘due process’ clause.                    

Criticism of the Act

The Act has often been criticised on the grounds that it places arbitrary power in the hands of the government and is often misused by the authorities. The Apex Court, in the case of AK Roy, had itself noted that the Act leaves scope for arbitrariness on the part of the executive but such discretion has to be allowed to the government to enable it to protect the general interest of the society. 

Certain provisions of the Act, such as those which provide that the detenu shall have no right to be represented by a legal representative before the Advisory Board, need to be amended. The detained person may not have the requisite knowledge that is essential to make an adequate representation. In some cases, the psychological and mental impact of the detention might also adversely affect a person’s ability to make an effective representation. In such a scenario, not providing an express right to the person to be represented by a legal practitioner is a violation of his rights. 

The Advisory Board has to render its opinion within 3 months of the detention period. This essentially implies that a person can be detained for up to 3 months without any review of the decision of the executive authority. This leaves tremendous scope for the violation of the constitutional rights of the detained person. During the period of 3 months, the detenu may be subject to unlawful torture or abuse. A person can be detained without being informed of the grounds of arrest for up to 10 days, and the government may, even when it discloses the grounds of arrest, choose to withhold information regarded by it as essential for securing the public interest.

The human rights abuses resulting from the preventive detention laws are often regarded as state-sanctioned abuses of individual liberties. The threshold for an act to qualify as a ground of detention is the subjective ‘satisfaction’ of the detaining authority, and this Act confers wide discretion on the executive. Preventive detention is regarded as an exception to the personal liberty granted by Article 21 of the Constitution. It is therefore essential to exercise this power only in certain extreme cases. Preventive detention curbs the free movement of an individual and is, therefore, an exception to Article 19(1)(d), which guarantees the right to free movement throughout the country to every citizen. Thus, it is clear that preventive detention orders confine and crib a person’s fundamental rights. 

The Act is often alleged to be against the spirit of several International Conventions to which India is a signatory. 

Article 9 of the International Covenant on Civil and Political Rights provides that all persons have a right to liberty, and no person can be arbitrarily arrested or detained. The Article further provides that a person should be deprived of his liberty only on such grounds and according to such procedures as the law prescribes. India ratified the convention on 10th April, 1979. However, in several cases, the person detained under the Act is not informed immediately of the grounds of the arrest or is arrested on grounds that are later held by the Court to be frivolous and vague. Such detentions are a violation of Article 9 of the Covenant.

Article 14 of the Covenant provides that any person who is charged with a criminal offence has a right to be heard by an impartial, competent, and independent Tribunal. In the case of preventive detention, the opinion of the advisory board cannot be regarded as a judicial review, and therefore, we see that it constitutes a violation of Article 14 of the Covenant. 

Similarly, Article 9 of the Universal Declaration of Human Rights provides that no person shall be arbitrarily detained, arrested, or exiled.  

Conclusion and Suggestions

The National Security Act is certainly a necessity to protect the nation from the abuse of democratic rights by certain anti-social elements. At the same time, questions about a conflict between human rights and national security will always arise. The need is to provide a balance between the two. 

However, at the same time, it is essential that the Act must conform to the Constitutional spirit. The mandate of the 44th Constitutional Amendment, reducing the maximum permissible period of detention without obtaining the view of the Advisory Board to 2 months, should be followed by a suitable amendment to the Act. At any rate, the Amendment should be given effect proprio vigore.  

It is pertinent to note that Article 14 of the International Covenant on Civil and Political Rights provides that where there has been a miscarriage of justice, the person who has been adversely affected should be provided compensation. It is essential that an obligation should be imposed on the Government to provide compensation to those who are detained under the Act and later it is decided by the Courts such detention was based on frivolous grounds or vague and unclear suspicion.  

There is an urgent need for the courts to evolve well-defined and precise standards to which the preventive detention laws must conform. Imprecise expressions such as ‘satisfaction’ of the executive authority need to be done away with. 

Frequently Asked Questions (FAQs)

What is a sunset clause and does the National Security Act have a sunset clause?

A sunset clause is a legislative acknowledgement that the statute in question is a temporary measure and will cease to have an effect beyond a certain period. Extraordinary laws which are framed for a specific objective contain a sunset clause which ensures that these laws expire after their objective is fulfilled. 

The Preventive Detention Act had a sunset clause. However, the National Security Act does not have a sunset clause, and therefore, no time period has been prescribed for which it shall remain in force. 

Why was the National Security Act invoked during the COVID outbreak?

Several Indian states invoked the National Security Act during the COVID outbreak to prevent the hoarding of medicines and oxygen cylinders. The Act was also invoked against those who engaged in violence against doctors, medical practitioners, and police personnel. 

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Companies (Incorporation) Rules, 2014

By
Rachit Garg
-
0

This article is written by Sachi Bhiwgade. This article discusses the need, importance, and benefits of incorporating a company and the process of incorporation. The incorporation rules are further discussed in-depth. ‘

It has been published by Rachit Garg.

Introduction 

Over the past few years, India has emerged as one of the fastest-growing economies in the world, as evidenced by the rise of several startups. As per the Reserve Bank of India, India’s GDP is set to grow by 6.8% in 2023.  A number of initiatives were also launched by the Ministry of Corporate Affairs (MCA) as part of its Ease of Doing Business wing, including the integration of numerous procedures through the release of the SPICe+ form, which offers a number of benefits for incorporation, and the establishment of a Central Registration Centre for name reservations, which significantly eased the processing of incorporation. All of this has made it easier to incorporate a business as a company in India and reflects the country’s willingness to support businesses and boost the economy.

The MCA is the authority that implements the Companies Act, 2013 (the “Act”), which businesses have to comply with along with the Companies (Incorporation) Rules, 2014 (the “Rules”) to get a company registered in India. The process of incorporation is dealt with by Chapter 2 of the Act, which covers the provisions relating to a company’s incorporation from Sections 3 to 22, read with the Rules. This article gives an overview of the advantages of incorporating a company as a business structure, as well as the legal requirements that must be met at the time of incorporation.  

What does ‘incorporation’ mean

In general terms, incorporation is the process of forming a business or company as a legal corporation. Legally, “incorporation” refers to the process of registering a company as per the provisions of the Companies Act, 2013 or any of the prior company laws, read with the Companies Incorporation Rules, 2014. 

Further, it is also essential in this context to understand what a company means. Though there are several definitions of a company given by various scholars, there is no strict or technical definition of a company; this was also observed by the Court in the case of In re Stanley (1906). Professor Haney is one such scholar, who provides the most appropriate definition of a company, which effectively explains the concept of a company as well as its characteristics, namely that “a company is an artificial person created by law, having a separate entity, with perpetual succession, and a common seal.” 

Once incorporated, a company becomes a separate legal entity with legal characteristics such as perpetual succession, limited liability, having a common seal, and the capacity to sue and be sued. 

Need and importance of incorporation of companies 

It is not necessary to incorporate a company in order to run a business. Several business structures exist, including sole proprietorships, partnerships, cooperative societies, and joint Hindu family businesses, among others. The most appropriate form of structure for a specific business is determined by evaluating the benefits and drawbacks of various types of organisations against one’s requirements.

Incorporating a company is time-consuming and involves the filing of several documents and the hiring of various officials to operate and run the business. Therefore, if one plans to incorporate a company, its pros and cons should be considered before deciding whether it is the best course of action for your business or whether another alternative should be preferred.  

A business might want to incorporate for a number of reasons. However, not getting your business registered may come with a number of downsides, such as not having the ability to sue or getting tax benefits. Below discussed are a few reasons and upsides of  incorporating a company.

Separate legal entity

A company is an entity where a group of persons come together for the common purpose of running a business that is separate from its members’ legal status and has an independent existence. Being distinct from the people that run and manage it, such as its promoters, directors, or shareholders, it has its own assets, rights, and obligations. Hence, only the company is responsible for repaying its creditors; the officials or members have no rights over the company’s assets or property. In the event a company is facing legal action in case of default, the officials cannot be sued for the company’s action. Neither is a company obligated to pay off its members’ personal debts. 

The concept of a separate legal entity was discussed in the famous case of Salomon v. Salomon (1897), where the House of Lords held that a company is considered to be distinct from its shareholders even in cases where the sole shareholder owns the entire share capital. 

Interestingly, the first case even before Salomon in this regard was Kondoli Tea Company Ltd Re. (1886), where W. Comer Petheram, C.J. of the Calcutta High Court, observed that “a company is a separate person, a separate body altogether from the shareholders, and the transfer was as much a conveyance, a transfer of the property, as if the shareholders had been totally different persons.”

Artificial person 

A company is an artificial person because it is created by virtue of law, which is also evident from the provisions of Section 2(20) of the Act. It defines a company as “a company incorporated under this Act (Companies Act 2013) or under any previous company law.”

It is also clear from the fact that a company lacks the characteristics of a natural person and exists only in terms of the law. A company, being an artificial person, however, relies upon the officials to run the business operations.

Perpetual succession

As an artificial person, a company does not have a set life span and endures irrespective of its members. Regardless, members, directors, officials, etc., may change for many reasons, but the company survives. Consequently, in contrast to sole proprietorships or partnerships, where business may end at the demise of the business owner and the latter may dissolve upon the dissolution of the partnership, a company’s operations are guaranteed to continue after incorporation. Thus, it was very aptly stated in the case of Re Noel Tedman Holding Pty Ltd. (1967) that “members may come and go, but the company remains.”

Easy share transfer

Share transfer allows investors to have flexibility and liquidity as they have the option of selling their shares on the market and reclaiming their investments. This has an impact on the share price, which can alter or increase the company’s value. However, this does not affect the legal structure of the company.

Clause 2 of Section 58 of the Act allows for the free transfer of shares of a public company. However, a private company has certain restrictions with respect to the transfer of shares, but these restrictions solely serve to safeguard the interests of the shareholders. Further, as per Section 44 of the Act, shares in a company are movable property and are transferable as per the articles of the company. Thus, the restriction on the transfer of shares of a private company is subject to the articles of the company.

Common seal

The company bears its official signature, known as the “common seal,” which is affixed by authorised officials due to the nature of a company being an artificial person. A document that lacks the common seal cannot legally bind the company. 

Capacity to sue and be sued 

Another important feature and advantage of an incorporated business is its capacity to enter into lawsuits and be sued for any default or violation of the law. It has the right to protect its identity, and all legal actions are pursued under its registered name. This was also observed by the Court in the famous case of Foss v. Harbottle (1843), where the “Proper Plaintiff Rule” was enunciated, which means that for any action, it is the company alone that can bring any legal action for any wrong done to it and not its individual members.

Limited liability 

Limited liability means the members of a company will only be liable to a particular extent, e.g., a company limited by shares, guarantee, or unlimited liability. Unlike an incorporated company, in a partnership, the liability of the firm is that of the partners. Thus, the main benefit of such a liability cap is that it makes an investor’s risk and losses more transparent, providing them with an opportunity to exit, thereby minimising their losses.

Separate property

A company’s incorporation creates a distinction between the company’s assets and those of the members. This principle is clearly illustrated by the Bacha F. Guszdar v. CIT, Bombay (1954) case, where the Supreme Court said, “It is the company that owns the property, not the shareholders.” The Court further stated that, although shareholders have certain rights within the company, they do not acquire any ownership interests in the company’s property.

Easy capital raising

The ability to raise cash through the issuance of shares, which other business structures cannot do, is another benefit of a corporation. By becoming incorporated, a company also gains a reputation as it is seen as being more reliable.

Companies (Incorporation) Rules, 2014 : all you need to know 

These Rules specify the process and method in accordance with the requirements of the provisions of the Act. These Rules primarily deal with the procedure, forms, and requisite fees in accordance with the Companies (Registration Offices and Fees) Rules, 2014, related to the incorporation of a company. A brief discussion of these requirements is given below;

SPICe+ (Simplified Proforma for Incorporating Company Electronically Plus: INC 32)

Prior to the introduction of the SPICe+ form, the SPICe, which is the Simplified Proforma for Incorporating Company Electronically, an e-form, was introduced in the year 2016 for facilitating incorporation, including reservation of name, DIN allotment, among other things. The lengthy procedure and plethora of forms available earlier for company incorporation were streamlined by combining several forms into one.

The new SPICe+ form replaced the SPICe form by notification on February 15th, 2020, by the Ministry of Corporate Affairs (‘MCA’) as a part of the ‘Ease of Doing Business’ initiative by the Central Government. Consequently, Rule 38 was also amended, where companies can now avail multiple services as compared to the SPICe from.

Formation of companies

Section 3 of the Act outlines the prerequisites of how a company could be lawfully formed, which include a public company, a private company, and a one-person company. The  procedure for documentation and registration required for the incorporation of a company is covered in Section 7. The applicable Rules for the same are discussed below.

Companies other than one person company

Rule 12 talks about the requirement of filing an application for registration of a company along with the SPICe+ form. Further, in relation to Nidhi companies, they must obtain a declaration from Nidhi before commencing the business.  

Procedure related to the name of the company 

In accordance with Section 12 of the Act, a company has to paint its name, registered office outside each of its offices, CIN number, contact number, and email, among other things. In the case of an online business, Rule 26 mandates that a company publish all the above-mentioned information on its website’s home page.

Rule 8, Rule 8A, and Rule 8B talk about the “undesirable name” of a company; these are names that are strikingly similar to, nearly identical to, or sound very similar to the name of an existing company. It provides detailed specifics about how the two names would be considered the same.

Provisions related to name reservation and change of name as well as the time limit for getting approval for the same is given under Rule 9, where it mentions its procedure and related forms to be submitted along with the application;

Application forRequirement
Name reservationSPICe+ form
Name changeRUN (Reserve Unique Name) and, Fee as per the Companies (Registration Offices and Fees) Rules, 2014
Extention for name reservation (Rule 9A)SPICe+ form and Fee

Incorporation certificate

Rule 18 gives authority to the Registrar of Companies to issue incorporation certification in Form INC 11. It also mentions that the incorporation certificate should contain a company’s permanent account number as assigned by the income tax authority. 

Subscribers particulars

Section 3 of the Act provides for subscribing to the memorandum of the company by the requisite number of persons to form a lawful company. Rule 16 further provides that certain information about such subscribers should be filed with the Registrar during incorporation; it provides a long list of documents that are needed.

Registered office and change of registered office

Section 12 of the Act talks about the registered office of a company, which it is required to have within 15 days of incorporation. Verification and physical verification of the company have to be filed under Form INC 22 as per Rule 25 along with the requisite documents. 

Clause 5 of Section 12 contains the provision for changing the registered office. It states that the registered office of a company could be changed with the passing of a special resolution by the Board. Rule 28 and 30 outline the process for transferring registered offices within the same state, from one state to another, or within a union territory, respectively. Rule 27 further mandates the filing of Form INC 22 to give notice of a change in registered office. 

One person company 

INC 2 form is required to be submitted along with the application for registering an OPC company as per Rule 12. Who is qualified to form an OPC, as well as who is and is not eligible to be an OPC member, are covered in Rule 3. Further, this Rule also lists out the activities that an OPC is not permitted to engage in, as well as restricts the incorporation of an OPC or its conversion to a Section 8 company.

Further, Section 4 and Rule 4 provide for the criteria for nominating a person by the subscriber of the OPC’s memorandum, who will then join the OPC as a member if the subscriber dies or when he/she cannot enter into a contract. Rule 4 further has provisions regarding the withdrawal of consent by the nominee, a new nominee, and other additional compliances.

Section 8 Company 

A Section 8 company refers to a company formed for charitable purposes, such as promoting art, science, education, etc., for which the Central Government provides it with a license. In other words, a Section 8 company is a “non-profit” company. For incorporating a Section 8 company, an application has to be made in this regard in the SPICe + form along with the requisite fee as per Rule 19. 

Memorandum and Articles of Association

A “memorandum of association,” or “MOA,” is the charter of the company; it contains the purpose for which the company is to be formed. Whereas “Articles of Association,” or “AOA,” are the bylaws and regulations governing the internal management of a company. Section 4 and Section 5 of the Act contain the provisions regarding memorandum and articles, respectively.

Rule 13 provides the manner in which the Memorandum and Articles are to be signed; it contains provisions regarding witnesses, particulars of identity, a provision for thumb impressions in case a subscriber is illiterate, the requirement of reading and explaining the content of the MOA to every subscriber, and provisions for a body corporate and a foreign national as subscribers.

First directors

The names of the first directors are given in the AOA. These individuals are appointed to the position of directors at the time of formation of a company. Details of the first directors are also required to be submitted to the Registrar as per Clauses (c) and (f) of Section 7. As per Clause C, it is mandated that a declaration be given in respect of the first directors that they are not disqualified to be appointed as directors, the format of which is given in Form INC 9 as per Rule 15. 

Further, it is also imperative to obtain the directors’ consent to act as director of the company and as per Rule 17, a particular is to be given on this behalf in Form DIR 12 and fee. 

Alteration of Memorandum and Article

Provisions to alter the Memorandum and the Articles are contained in Section 13 and Section 14 of the Act, both of which require a special resolution for approval. Amendments to the articles may vary depending on whether a private company becomes a public company or vice versa. Rule 33 and 33A further provide for the requisite Form that needs to be submitted by a company that intends to alter its articles. The MOA may be modified to reflect a change in the company name, a shift in the registered office, the issuance of a prospectus, etc. As per Rule 29, a company is prohibited from changing its name if it has not submitted annual reports or financial statements as required or if it has failed to pay or repay deposits, debentures, or interest on those obligations that are due. However, this restriction can be lifted if the company submits the necessary documents and pays its debts.

Entrenchment provision in articles

A restrictive provision known as an ‘entrenchment’ needs a supermajority rather than a special majority to alter certain specified AoA provisions. Such provisions, as per Section 5, are made in the AoA at the time of incorporation, along with the SPICe+ form or under Form MGT 14, by an amendment, along with fees as provided under the Registration of Offices and Fees Rules, 2014; the same is provided in Rule 10.

Conversion of a company into another kind

Private Company into OPC

Section 18 of the Act allows the conversion of any class of company into another class, which implies that a private company may convert into an OPC. This section is read in line with Rule 7. As per the Rule, excluding a Section 8 company, a private company can convert into an OPC on the adoption of a special resolution. Further requirements include the filing of Form INC 6, a consent declaration by the directors of the company allowing conversion, a NOC by secured creditors, and other financial documents. 

Section 8 company to other company

In line with the requirements of Rules 21, 22, and 23, a Section 8 company may, if it so chooses, convert itself to any other sort of company which is likewise covered under subclause 4(ii) of Section 8 of the Act. However, as mentioned above, it cannot be converted into an OPC.

Rule 21 outlines the criteria for the conversion requirement. To get the conversion approved, a Section 8 company has to get it approved by passing a special resolution, of which a certified copy is submitted with the application in Form INC 18. Further, the notice of the meeting contains particulars such as the company’s incorporation date, its objects as per the MoA, the reason behind changing the structure from a Section 8 company, the main objectives that are being  altered, and the rationale behind the same; as well as the filing of Form MGT14, which includes information about the effects the conversion will have on the members.

Additional compliance for Section 8 company’s conversion is discussed in Rule 22. It includes the requirement of filing a notice in Form INC 19 and publishing it in a newspaper and on the company’s website. The notice is also sent to various authorities, including the CIT of Income Tax, IT officer, Charity Commissioner, etc.; proof of notice served; obtaining a NOC from various regulatory authorities, certificate of experts validating that the conditions are in full compliance, and obtaining approval from any particular authority of conversion. Once all requirements have been met and the application has been approved by the Regional Director, the Registrar issues a fresh certificate of incorporation.

Company limited by guarantee to limited by shares

Excluding a Section 8 company, any company limited by guarantee can convert itself into a company limited by shares. The prerequisites of the same are; 

  1. Share capital must be equal to the amount of guarantee.
  2. Amendment to the MoA and AoA.
  3. Filing of special resolution in Form MGT 14.
  4. Filing INC 27 with the revised articles attached.

Following the fulfilment of these requisites, the converting company receives an incorporation certificate.

Unlimited liability company to company limited by shares or guarantee

The procedure to convert an unlimited liability corporation into a limited liability company by virtue of shares or guarantee is outlined in Rule 37. This kind of conversion needs to be authorised by a special resolution at a general meeting, for which an application is submitted using Form INC 27. Following the passing of the special resolution, the company has to publish notice of the conversion in a newspaper and on its website in order to seek objections from interested parties. A list of supporting documents, among other things that need to be submitted along with the applications, includes a copy of the resolution passed, publication in the newspaper; a certified copy of revised MoA and AoA, a declaration by the directors; NOCs. After conversion, it is also essential to follow all the requirements outlined in sub-rule 7.

Frequently Asked Questions (FAQs) 

What was the status of incorporation requirement before the introduction of the Rules in 2014?

The Companies (Central Government’s) General Rules and Forms, 1956, and Companies Regulation, 1956, which were supplemental to the Companies Act, 1956, were in place until the introduction of the Rules in 2014.

What is the difference between SPICe and SPICe+ forms?

The primary difference between the SPICe+ and SPICe forms is that the former is an enhanced version of the SPICe form known as an integrated web form offering 10 services from three Central Government Ministries and Departments. In contrast, the latter is an electronic form, replaced by the SPICe+ form on February 15th, 2020.

Is resubmission of SPICe forms allowed?

Yes, SPICe can be resubmitted as per Rule 38 of the Incorporation Rules.

What does an artificial legal person mean in relation to a company?

A company is an artificial legal person, which implies that although it is not a natural person and was created by law, it has rights equivalent to those of natural persons.

Is it mandatory to register a business as a company in India

No, it is not mandatory to register a business as a company in India. There are several other business structures that can be opted for, such as a sole proprietorship, a partnership firm, or a limited liability partnership. One-person companies, which are set up similarly to sole proprietorships but offer the benefits of a private business, are also an alternative.

References 

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Immovable property

By
Sneha Mahawar
-
0
bill of sale

This article is written by Diksha Paliwal, a practising advocate in the High Court of Indore and a student of LLM (Constitutional Law). The article titled ‘Immovable Property’ briefly discusses the scope and meaning of the word property, followed by a short explanation of the two significant realms under the purview of property, i.e., immovable and movable property. The article’s main aim is to develop a deep understanding of what constitutes immovable property by taking the help of various definitions, legislations, and judicial precedents. 

This article has been published by Sneha Mahawar.​​ 

Introduction 

A word can be interpreted in as many ways as one might choose. Similarly, the term ‘property’ is said to have a wide range of connotations. Even the Indian legislature has accorded the term with a multitude of elements. It has been used in an array of senses.

Property constitutes an essential element of the common English terminology, and its importance in today’s world can’t be ignored. Before diving into the peculiarities of this term, it is crucial to understand the term in its ordinary sense without any complexities. The most general classification of the term can be as; Incorporeal’ or ‘Corporeal’, ‘Tangible’ or ‘Intangible’, ‘Personal’ or ‘Private’, and ‘Movable’ or ‘Immovable’ Property. However, this article focuses on diverse aspects of immovable property by considering the legislation as well as some important judicial decisions in the light of immovable property.

What is property 

As very well quoted by Frederic Bastiat, a former member of the National Assembly of France, “Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.” 

The concept of property is dynamic. It has evolved drastically and has been elucidated in diverse manners in the domain of the legislature, society, and different eras of the time. The term property is transitional, just like the other inventions and creations of the human mind, and is rich with meanings. 

The word ‘property’ is derived from the Latin word ‘proprius’, meaning ‘one’s own’. Though there exist several explanations and definitions of the word, which may not be very much similar to each other, the Sanskrit term ‘Swatva’ closely resembles the meaning of the Latin term ‘propirus’. The root of the term ‘propirus’ is ‘proprietas’, which is in turn very much similar to the English word property. This English term is formed from the noun ‘proper’ with the suffix ‘ty’. To sum up, all these terms from different languages etymologically hold a single meaning, i.e., something that an individual owns.

In an ordinary sense, property is something that a person exclusively owns and something peculiar to a person. Property is ownership of something, thus, giving an exclusive and unrestricted right. In the case of McAlister v. Pritchard (1921), the Supreme Court of Missouri, Division One, held that the term ‘property’ is believed to be extended to every category of valuable rights and interests. Thus, anything that a person owns can be considered to be a person’s property. 

However, in the recent judgements and the evolving concepts of law, it is of no surprise that the term property is now found to be used in an extended notion. For instance, now, even a man’s reputation is considered property, and often much more valuable than any other property. This view was opined in the case of Dixon v. Holden (1996) by the Supreme Court of Missouri. Alternatively, even the ideas of intellect and expressions fall under the category of property. For example:- trademarks, copyrights, patents, etc. fall under the category of intellectual property. 

Thus, it is clear from the above discussion that the term property is not just confined to ownership when looked at from a broader perspective, considering both political and sociological factors, along with its most acceptable sense. It confers upon an individual a bundle of powers. Property not just includes the things that are the subject matter of the ownership but also extends to the right of ownership or dominium or partial ownership, as the case may be. In legal notion, the term property is to include a bundle of rights and especially in the case of tangible rights, its scope extends to the right to enjoy, retain, alienate, possess and much more. In light of the Transfer of Property Act, 1882, the property is suggestive and illustrative of every possible interest a person can possess. In Indian legislatures, the term is mostly used in a broad sense.

Immovable and movable property as per the Indian property regime

The term property concerning this article can be broadly classified under two subheadings, namely, movable and immovable property. A brief explanation of the two is as follows;

Immovable property

Generally speaking, the word immovable property connotes anything that a person owns which cannot be moved from one position to another. It can be said that anything which is affixed to land under someone’s ownership falls under the category of immovable property. The immovable properties are entitled to be protected by legal statutes and are liable to taxation. Such an immovable property has rights of ownership attached to it.

The General Clauses Act, 1897 defines immovable property under Section 3(26), stating that the term shall include land, things affixed to earth or permanently fastened to anything affixed to earth, and any benefits arising out of the land. On the other hand, Section 3 of the Transfer of Property Act, 1882, does not provide an exhaustive definition. It states that immovable property is not to include standing timber, growing crops, or grass. None of the above definitions is exhaustive. These definitions just denote what is to be included or excluded from the purview of immovable property.

Thus, after clubbing the definitions provided under the two statutes, immovable property can be defined as permanently affixed to the earth, like land, trees and other substances that do not include standing timber, growing crops, or grass. There are further qualifying nuances to the term ‘immovable property’, and they have been addressed suitably later.

Section 2(6) of the Registration Act, 1908 also provides for the definition of the term immovable property. As per this Section, lands, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries, any profit that arises out of the land, and any other thing that is attached to the earth, or something permanently fastened to anything which is in turn attached to the earth, provided it shall not include standing timber, growing crops, nor grass falls under the category of immovable property. 

Even the definition provided under the Registration Act, 1908, is not exhaustive; however, it helps to a certain extent to understand the nature and concept of immovable property. In the case Shree Arcee Steel P. Ltd. v. Bharat Overseas Bank Ltd. (2005), the Karnataka High Court held that the term ‘immovable’ in immovable property means permanent or fixed, which cannot be moved and which is attached permanently to the immovable property.

Movable property

The term movable property in common parlance constitutes any physically mobile property or something that can be easily moved by any person. Movable property connotes almost everything that is not affixed to land, irrespective of appearance, shape, size, colour, etc. The items that fall under the category of immovable property are subject to various conditions and restrictions as stated under various Indian statutes. 

The term movable property has been defined diversely in various Indian statutes.

The General Clauses Act, 1897, in Section 3(36), defines the term to include property of every description, except immovable property. 

The Registration Act, 1908, in Section 2(l)(9), provides an inclusive definition of movable property. According to this, it is to include standing timber, growing crops and grass, fruits on the trees, and juice in trees, along with the property of every description other than immovable property.

The term movable property is also defined under Section 22 of the Indian Penal Code, 1860. It states the term is to include corporeal property of every description, provided that the same is not affixed to the land. The main proposition to be understood here is that the property must not be attached to the land. However, the same immovable property might become movable as soon as severed from the earth.

The Supreme Court of India in the case of State of A.P. v. N.T.P.C. Ltd. (2002), held that electricity falls under the category of property, and merely because it cannot be felt or touched or moved, it will not cease to come under this category. Anything that possesses all the attributes of a property can be considered property, be it a book, a piece of wood, patents, copyrights, etc.

In the case of State Bank of Patiala v. Chohan Huhtamaki (India) Pvt. (1981), the Himachal Pradesh High Court held that standing timber, growing crops, grass, or other such things which are attached to the earth, but the intention of making them a permanent part of the land is not present, for example, machines that are attached to land but can be shifted, all these come under the purview of movable property. Apart from this, the right to worship, promissory notes of the government, rights of a purchaser to register his land, royalty, etc also fall under the category of movable property.

When can property be classified as immovable property

To sum up, all the definitions provided under various Indian legislations, it can be said that mainly three things constitute immovable property, namely, land, benefits arising out of the land, and things attached to the earth. The last classification can further be divided into three categories: things rooted in the earth, things embedded in the earth, and things attached to what is embedded in the earth. Among the things attached to the earth, standing timber, growing crops and grass fall under the exceptional category. Let’s have an overview of the abovementioned classifications of immovable property.

Land

In common parlance, the term ‘land’ constitutes a proportion of the earth which is not covered by water. It can be connoted as an area of ground with regard to its ownership or use. The term is intended to include all the things on the surface of the earth, feasibly the column of space above the earth, and the ground below the surface of the earth. The word is comprehensive enough to engulf even the things below the surface of the earth, say sub-soil, mines, and minerals. It even covers the objects placed by the human agency on or under the earth’s surface, provided it shall be done with the intention of permanent annexation. The term also covers the things which are said to be land covered by water, for instance, well, tubewell, rivers, ponds, lakes, and streams, which are dug on the earth’s surface. These may be natural or artificial, as the case may be.

Benefits to arise out of the land

The phrase ‘benefits to arise out of land’ is considered under the purview of immovable property since it is an interest in land. Even the definition provided in Section 2(6) of the Registration Act, 1908 expressly includes this phrase under the category of immovable property. Some examples of benefits arising out of land include rent received from the house, revenue from agriculture, rent from shops and jagir, right to catch fish from pond or river, and right to collect lac from trees. Also, the right to collect dues from the market or fair situated on a plot of land, interest on the income from immovable property, lease of land, etc. even the right to extract any minerals, right to conduct an exhibition of a piece of land, right to possession, establish a hoarding or advertisement of the part of the land, right of the priest to recover dues from the funeral, management of Sarjan land, interest of the mortgagee in the property that has been mortgaged, etc. are all considered immovable property.

In the case of Ananda Behera And Another vs The State Of Orissa And Another (1955), the Supreme Court of India held that a person’s right to enter upon land and to take away fish from a pond is  ‘A profits a prendre’, which is the right to take something from somebody else’s land. Thus it falls under the purview of immovable property through the category of benefits arising out of the land.

Things attached to the earth

The above-stated expression is separately defined under Section 3 of the Transfer of Property Act, 1882, to include three categories: things rooted in the earth, things embedded in the earth, and things attached to what is embedded in the earth.

Things rooted in the earth

By virtue of the definition provided under the General Clauses Act, the things rooted in the earth are considered immovable property. Thus, trees and shrubs are considered immovable property. Similar is the case with plants and herbs. However, it is pertinent to mention that this expression does not include standing timber, growing crops and grass in this category.

In the case of Suresh Chand v. Kundan (Dead) By Lrs. And Ors. (2000), the Supreme Court of India held that standing timber is a part of the earth by virtue of it being rooted in the earth. When any transfer of property of such a land takes place with timber rooted in it, then the interest in the property is bound to include that standing timber or any other thing attached to the earth unless it expressly or impliedly provided otherwise. Thus, the thing attached or rooted will go to the transferee due to a legal incident of the property so transferred. Hence, the general rule says that trees, shrubs, herbs, and plants are immovable properties.

However, when detached or cut from the earth, trees and shrubs can be sold separately as movable property. This view was expressed by the Supreme Court in the case of Mathura Das v. Jadubir (1905). Trees and shrubs though considered immovable property, as soon as they get detached or are cut down, become movable property since it loses the character of immovable property.

Things embedded in the earth

Etymologically, the term ‘embedded’ connotes something that is firmly fixed in a surrounding mass. Embedding denotes a thing whose foundation is laid underneath the earth’s normal surface and which becomes a part of the earth. Take, for instance, where stone blocks are placed on one another to frame a wall. Though no mortar or cement is used, they will be considered immovable property since it has become a part of the land. However, when the same stone blocks are just stacked on top of each other in a builder’s yard in the form of a wall, they will be treated as movable property.

There may be instances where the article is firmly fixed in the land; however, if the same has not been done with the intention of it being a part of the land, then the same will not fall under the purview of immovable property. For example, an anchor stands firmly fixed to the ground to hold the ship, but the anchor was never fixed to the ground with the intention of it being a part of the land. Thus, it will not fall under the category of immovable property. Similarly, a road roller, heavy stone, etc will not be considered immovable property. In cases where the property is embedded only up to an extent where its weight forces, it shall not fall under the category of the term embedded. 

Attached to what is so embedded

The things falling under this category are the ones through which permanent beneficial enjoyment can be drawn from the immovable property to which they are attached. A thing will only be said to be attached to the earth when in some way or the other, its permanent beneficial enjoyment can be done. Doors, windows, shutters, etc are a few examples that fall under this category. These are said to fall under this because they are attached to the house. These things have no existence or meaning of their own. What good will a door do if there is no house? However, it is important to understand that these things must be attached with the intention of permanent fixation or attachment. However, fans, A.C., window blinds, sashes, etc. will not be considered immovable property, even though they may be attached to the house. 

Thus the two most important things that need to be established while dealing with the fact of whether a thing falls under this category or not are;

  • Permanent attachment of the thing must be there; and  
  • It must be attached in order to experience the beneficial enjoyment of the thing to which it is attached. 

Exceptions 

As discussed above, trees, shrubs, herbs and plants fall under the purview of immovable property. However, in cases where such trees, shrubs, and herbs constitute standing timber, crops and grass, they are movable property. 

In the above case the term ‘standing timber’ includes trees whose woods will be used to develop buildings, houses or any other infrastructure, to make ships, bridges etc. The English Law includes oak, ash or elm trees under this category. In India, trees like neem, babul, sheesham, teak, or bamboo are considered standing timber. However, ordinarily, the trees that bear fruit stand on a different footing. These do not fall under the category of standing timber. For example, mahua, mango, jack fruit, jamun trees, etc. are not considered standing timber. The reason is they were grown with the intention of using their fruit and not for the intention of cutting them and using them later on for construction or as wood. If their intention would have been otherwise, it shall then be considered immovable property. Since standing timber is not an immovable property, a document concerning it does not require registration.

As stated above, crops also do not fall into the category of immovable property. In this relation the term ‘crop’ means any plant grown for food mainly; it includes all the fruit plants, fruit leaves, barks or roots, etc. It is to be noted that these crops are movable. 

The third exception is grass. It consists of all the short plants having long harrow leaves. These are movable properties, whether they are cut or not. The main use of grass is for fodder purposes. 

Difference between movable property and immovable property 

As a general rule, a determinate or specified portion of land, or benefits that arise from that land, along with the things attached to the earth, falls under the purview of immovable property, whereas the movable property includes standing timber, grass, crops, stocks, shares or any other property that a person owns, and that is capable of being moved from one place to another. 

In the case of Baijnath v. Ramadhan and Anr. (1962), it was held that the intention of the owner while planting the tree clarifies whether a tree will be considered as standing timber or not. In another case of Kapoor Construction v. Leela Nagaraj & Ors. (2005), it was held that three factors, namely, intention, mode of annexation and degree of annexation, determine whether the property is movable or immovable. 

It is pertinent to note that while distinguishing between the above two, the first thing that is considered is that movable property can be transferred from its position without causing damage or change in its shape, size, colour or appearance. The same is not the case with immovable property. Any attempt made to move immovable property might affect the property. 

A sale deed of a mortgaged property, right of worship, promissory note, a piece of machinery or whole machinery, a right to recover maintenance or any allowance, royalty, gold or any jewellery that a person owns in his name, all these come under the category of movable property. Factory, right of the ferry, fishery, harvesting, right to collect rent, a reversion in property leased, right to collect the fruits of trees that are grown in one’s ownership, etc., are some examples of immovable property.

If a thing or even the slightest of its parts is attached to the earth and goes deeper, then it is considered immovable property. However, if something is just lying on the earth on its own weight, then the same is regarded as movable property. While considering the provision of transfer, registration is required in immovable property, but this is not the case in movable property.

Case laws 

Jagdish v. Mangal Pandey (1985)

Facts of the case

In the present case, the respondent herein filed a money suit against one Chingi and his son in regard to the execution of a decree. In this case, one-half of the share constituted agricultural land which consisted of trees and bamboo clumps attached to the land. The decree was passed by the lower court and also the execution took place, considering the trees, and bamboo clumps as movable property. These trees and standing timber were put to auction, which was later purchased by the respondents. The plaintiff objected to this auction and said it could not have been sold without their knowledge. The purchaser was trying to cut these trees and bamboo.

Issue before the Court

The question before the court was to decide whether these trees and bamboo clumps will be considered immovable property or movable property.

Judgement and Observation

The Allahabad High Court held that to determine whether a property will fall under the category of immovable or movable property, the nature and intention must be taken into account first. In the case of trees, the nature of the tree and the intention to cut will be considered first. If the intention is to let it remain attached to the earth, it will be deemed as immovable property, and if the intention is to cut it, the same shall be considered movable property.

State of Orissa v. Titagarh Paper Mills Company Limited

Facts of the case

In the case of Titagarh Paper Mills, a dispute arose concerning a notification issued by the government in view of Section 3B of the Orissa Sales Tax Act, 1917, where the Government of Orrisa stated that standing trees and bamboos are liable for taxation on the turnover of purchase. Several writ petitions were filed by the persons who entered into a contract with the state for the sale of timber and bamboo. The petitioners contended before the High Court that the subject matter in relation to the contract was not the sale or purchase of goods but for the lease of immovable property. Thus, the royalty paid in such a case is not liable for taxation under sales or purchase tax.

Issue before the Court

The court was to decide whether the above-mentioned trees and bamboo will fall under the category of benefits arising out of the land.

Judgement and observation

The Supreme Court affirmed in favour of the respondents stating that “felling, cutting, obtaining and removing bamboos from forest areas for the manufacture of paper” fall under the category of benefits arising out of the land. Thus, it amounts to interest in immovable property.

Conclusion 

The concept of property has been in existence for hundreds and thousands of years, and the same has seen a drastic evolution in its meaning, nature and scope. The term property as focused on in this article is divided into two subheads, namely, movable and immovable property. Both categories of property consist of certain rights and duties on the owner’s part as stated under the Indian Statute. To sum up, generally, it can be said that everything attached to the earth with the intention of permanently fixing the same comes under the purview of immovable property. Apart from this, everything else falls into the category of movable property.

Frequently Asked Questions (FAQs) 

What is meant by the degree of annexation and object of annexation in the context of immovable property?

The degree of annexation and object of annexation are generally the basis or a test based on which it is decided whether the thing falls under the category of ‘things embedded in the earth’. Both of them are crucial elements for consideration. In degree or mode of annexation, it means that the removal of any such property from the land will not cause any harm to the land. The object of annexation connotes permanent usage of the concerned property. Thus, if the object is for permanent usage, it is also termed immovable property. 

Does equity of redemption fall under the category of immovable property?

In the case of Suraj Prasad v. Mt. Aguta Devi And Ors (1958), it was held that in simple mortgage equity of redemption would fall under the category of tangible immovable property. Similarly, a mortgagee’s interest in the mortgaged property falls under the definition of immovable property.

References 

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Section 376 IPC punishment

By
Sneha Mahawar
-
0
Section 120A

This article is written by Gautam Chaudhary, a law student at Chander Prabhu Jain College of Higher Studies and School of Law, GGSIPU. The present article talks about the penal punishment for the offence of rape provided under Section 376 of the Indian Penal Code.

This article has been published by Sneha Mahawar.​​ 

Introduction

Rape is defined under Section 375 in Chapter XVI of the Indian Penal Code, 1860, which discusses offences affecting the human body under the heading of “sexual offences”. Further, the punishment for committing rape is defined under Section 376 of the IPC. Although the Code defines this heinous crime as one of the offences that affect the human body, such a barbarous crime is said to be a crime against the entire society since it shows the condition of law and order in the country. Rape inflicts the most painful physical and mental trauma on the victim, and also violates their fundamental right to have a dignified and free life, guaranteed under Article 21 of the Constitution of India, 1950. This is why the legislature has selected it to be directly triable by the highest criminal trial court, i.e., the court of sessions. India has witnessed some gruesome and tortuous sexual crimes against women, like the Nirbhaya gang rape case, the Hathras rape case, the Kathua rape case, the Shakti Mills case, and the Dr. Priyanka Reddy gang rape case, and because of these incidents, the Parliament has amended Section 376 of the Indian Penal Code, 1860, in order to stringently punish this atrocious act. 

The present article elucidates the statutory punishment for the offence of rape provided under Section 376 of the Indian Penal Code, 1860, along with the relevant landmark judgments.        

Rape under the Indian Penal Code, 1860

Rape is defined under Section 375 of the Indian Penal Code, 1860. The Section defines it as ‘an unnatural and forced sexual intercourse between a man and woman against her will and without her consent’ also providing various sexual acts to be termed as rape for the ambit of the criminal law, these are: 

According to Section 375 of the Indian Penal Code, 1860, a man is said to have committed rape when:

  1. A man penetrates his penis, to any such extent, into a woman’s vagina, mouth, urethra or anus or when he makes her do the same act with him or any other person. 
  2. A man inserts any object or any part of his body to any extent into a woman’s vagina, urethra, or anus or when he makes her do the same with him or any other person. 
  3. A man manipulates any part of a woman’s body in order to cause penetration into the vagina, urethra, anus or any part of her body, or when he makes her do the same with him or any other person. 
  4. A man applies his mouth to a woman’s vagina, anus or urethra or when he makes her do the same with him or with any other person. 

The Section further provides for the instances under which the above-mentioned acts will be considered rape. The description of the situation is discussed thoroughly below. 

According to the present Section, all the above-mentioned activities will be considered rape when the following circumstances fall under the following:

  1. When the above-stated acts are done against her will or without her consent. 
  2. When a sexual act is done with her consent but her consent is obtained by putting her or any other person in whom she is interested in a fear of death or of hurt. 
  3. When the above-said activities are done by a man, where he believes he is not her husband and where she grants consent to him bona fide believing he is her husband to whom she is lawfully married. 
  4. When the above-stated acts are done with her consent but her consent was not voluntary because she was of unsound mind at the time of giving consent or was in an intoxicated state due to a stupefying and unwholesome substance administration by himself, and the intoxication was of such an extent that she was unable to understand the nature and consequences of the activity to which she has given consent.
  5. When the above-said activities are done to a minor i.e. below 18 years of age.
  6. When the above-said acts are when she is unable to communicate her consent. 

Explanation 2 of the Section provides the definition of consent for the operation of Section 375 of the Code. According to the explanation, “consent” means an unambiguous voluntary agreement wherein women, by words, gestures, or any other form of verbal or non-verbal communication, communicate a willingness to participate in a certain sexual act.

Thus, as per the provisions mentioned above and provided by Section 375, it can be construed that the offence of rape consists of the following essential elements:

Sexual intercourse 

For the operation of Section 375 for penal punishment upon the accused, it is necessary that sexual intercourse take place, which is given under Parts 1 to 4, i.e., the penetration of the penis, the insertion of any object or body part, to any extent, into the vagina, mouth, urethra, or anus. Also, there should be manipulation of any part of a woman’s body to cause penetration and the application of his mouth to the vagina, anus, and urethra of a woman.

Against her will

Description 1 of Section 375 of the Penal Code provides that sexual intercourse done with a woman will be termed rape if it is done against her will. The term “an act against the will” in criminal law means an act is done to a woman despite her active or unambiguously expressed resistance or denial of its occurrence. The terms against her will and without her consent are often used interchangeably; however, the two terms are completely distinct from each other, as the former deals with denial while the act is occurring, while the latter refers to the agreement between the parties for a sexual act that is yet to take place.  

Without her consent 

When a sexual act is done to a woman without her consent, it will also be termed “rape” as per the penal code provisions. For proper comprehension of the term “without her consent,”  it is essential to understand the meaning of the term “consent.” As per explanation 2 of the Section, “consent” means a voluntary agreement without any doubt between a man and a woman, where a woman, by words, gestures, or any other form of verbal or non-verbal communication, communicates or agrees to a certain sexual activity. As a result, if a woman does not give such consent, the act is classified as “rape” despite her denial.

In Uday v. State of Karnataka (2003), the Supreme Court gave the meaning of consent, terming it “three things-a physical power to act, a mental power of acting, and a free and serious use of them.” 

A sexual act in fear of death or hurt

Further, according to description 3 of the Section, where the consent of a woman to a sexual act is taken by putting her or any other person in fear of death or hurt, the said consent has not been given in criminal law since it is the product of a fear that is exerted by a man on a woman or any person in whom she is interested. For the purposes of this Section, any other person can be her husband, child, or parents. 

Impersonation

A person is said to be liable for rape if he impersonates the husband of the victim. According to the Section, a woman’s consent to a sexual act with the accused in such a case is invalid because the agreement to sexual intercourse is not between the accused and the victim, despite the consent being given to that person, whom she believes to be lawfully married to. The person under this Section would be held liable for rape if he falsely and deliberately impersonates her husband and, after doing so, intentionally performs sexual intercourse with her.

Unsound and intoxicated  

Further, the Section provides another circumstance where the consent given by the woman will not be treated as valid consent and the act committed will be taken as rape. It provides that when a woman consents to an act, at the time consent is given, she is of unsound mind or is in an intoxicated state due to the administration of an intoxicant, and because of her unsoundness or intoxication, she is unable to understand the nature and consequence of the act for which she is giving her consent. 

Consent of a minor 

Sexual intercourse with a minor, according to description six, is rape. The Section makes it illegal to have sexual intercourse with a minor, whether she gave her consent at the time of the sexual act or not, because the consent has no value in such cases because the victim is a minor and has no knowledge of the act and its consequences. 

Unavailability of consent communication

Rape occurs when a woman is unable to communicate her consent for a sexual act for any reason, but the act is performed despite her inability. 

Punishment for rape under the Indian Penal Code, 1860

Section 376 of the Indian Penal Code, 1860, provides for the statutory punishment for the offence of rape. Sub-section 1 of the present Section provides that whoever commits the offence of rape shall be punished with rigorous imprisonment, which shall not be less than ten years and may extend to life imprisonment, and would be liable for a fine as well. 

Further, subsection 2 frames out the punishment for rape for specific individuals who commit rape in certain circumstances with a woman. It provides:

  1. A person being a police officer will be punished for the offence of rape if he commits forceful sexual intercourse on a woman who is either in his custody or his subordinate’s custody, within the limits of the police station in which he is appointed or in any police station house premises.  
  2. Sub-section 2(b) provides punishment for a public servant who commits rape on a woman who is in his custody or is in the custody of his subordinate custody. 
  3. The member of the armed forces will be open to punishment if he commits rape in an area where he is deployed through the authorisation of either the Central Government or any state government. For the operation of this subsection armed forces are defined under explanation (a) which states that armed forces would mean naval, military and air forces and any other forces which are constituted under any law for the time being. Also, it would include paramilitary forces or any other forces under the control of the central government or any state government.
  4. Commission of rape on any inmate by a member of staff or management of custody places established under any law for the time being in force, such as jail, remand home, or women’s or children’s institution.
  5. Commission of rape on a woman in a hospital by a member of the hospital’s staff or management. 
  6. Commission of rape on a woman by a guardian, relative, teacher, or any other person who is in a position of trust and authority towards her. 
  7. Commission of rape on a woman during communal or sectarian violence.  
  8. Commission of rape of a pregnant woman. 
  9. Commission of rape of a woman who is incapable to communicate her consent. 
  10. Commission of rape on a woman by exerting control or dominance over her. 
  11. Commission of rape on a woman who is suffering from mental or physical disability. 
  12. Commission of rape of a woman while causing grievous bodily harm or maiming or disfiguring or endangering her life.  
  13. Commission of rape repeatedly on the same woman.

For all the above-stated instances provided under sub-section 2 of Section 376 of the Indian Penal Code, the punishment for the offender shall be imprisonment, which shall not be less than ten years. It may extend to life imprisonment with a fine.  

Section 376 also includes a provision for punishment for rape on a woman under the age of sixteen. In this case, the statutory punishment would be rigorous imprisonment, which shall not be less than twenty years and may also extend to life imprisonment; he shall also be liable to pay a fine to the victim. 

Major amendments in Section 376 

The Criminal Law (Second Amendment) Act of 1983

Section 376 of the Indian Penal Code, 1860, was majorly amended for the first time in the year 1983. The aforementioned Amendment was the result or product of the surge caused by the infamous Mathura case, which caused a nationwide uproar in the country because the case attacked the core of Indian criminal law and system. 

It was the case of Tuka Ram and Anr. v. State of Maharashtra, (1978), wherein the accused persons, i.e., two policemen, allegedly raped a teenage Adivasi girl while she was in their custody. The criminal trial of the gruesome crime was what sparked the sudden urge for change in our criminal law because the trial court acquitted the two accused persons after observing that the prosecutrix was habituated to sexual intercourse and the sexual act was done voluntarily on her part, and the prosecution has not proven the case to bring back the charge. In its appeal, the High Court overturned the trial court’s decision and convicted the accused based on the prosecutrix’s “passive submission,” reasoning that the victim’s consent was the result of fear and pressure exerted by the accused’s authority, making her feel helpless, and thus no consent was communicated in the eyes of the law. Thereafter, the accused reached the Supreme Court, where the High Court’s decision was reversed, thereby acquitting the accused of the charges, with the explanation that there were no marks found on the body of the prosecutrix and that she did not raise any alarm or any kind of objection towards it. 

The Supreme Court’s verdict left the court’s observation open to widespread protests and criticisms by various feminist groups and the public, where all the people and various law professors questioned the true meaning of the term “consent.” 

Due to all the unrest in the country and protests in 1983, an amendment was introduced in the legal reforms with the passing of the Criminal Law (Second Amendment) Act, 1983. The Act brought various new penal provisions, and Sections 376-B, 376-C, and 376-D were inserted in order to deal with custodial rape. This particular Amendment also inserted Section 114A in the Indian Evidence Act, 1872, which provides for the presumption that the court holds in support of the victim that no consent was given for the sexual activity when she denies the same. In such cases, according to the Section, the onus lies upon the accused to rebut this presumption in order to obtain an acquittal. The Amendment further introduced Section 228A in the IPC, which stated the prohibition on the disclosure of the victim’s identity.

Nirbhaya case and Criminal Law Amendment Act, 2013

In 2012, the country saw the most torturous crime that anyone could commit against a human being. Nirbhaya, a young woman was gang-raped in the country’s capital in such a barbarous manner that anyone could ever imagine. She was brutally gang raped by six men on a bus in Delhi, where, after the sexual act, her internal organs and private parts were mutilated to such an extent that her internal organs were pulled and her private parts were mutilated in a very inhuman manner that caused grave injuries that eventually took her life.

The four defendants were convicted of rape, kidnapping, murder, and destruction of evidence in September 2013 and sentenced to the death penalty, which was upheld by the Supreme Court in 2017 by stating that the case clearly came within the category of “rarest of rare cases.”

Justice Verma Committee Report

After the horrific case of human mutilation, the public took to the streets, showcasing massive outrage towards the then-present criminal law provisions. In response to the same, the government set up Justice J.S. Verma’s committee to suggest amendments to reform the penal provisions. The committee made recommendations on all kinds of sexual crimes.

With respect to the punishments for rape, the Committee was of the view that such offences need to be graded. The Committee was of the opinion that, while rape is a deterrent act for the victim’s soul, it does destroy a woman’s moral structure. However, the death penalty in such cases is not fit to be called for. 

The Criminal Law Amendment Act, 2013

As per the suggestions edified by the Justice J.S. Verma Committee, the Criminal Law Amendment Act, 2013, came into existence on the 3rd of February, 2013. It introduced a wide range of subsequent changes in the Indian Penal Code, 1860, the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872.

Along with various statutes and provisions, the scope of Section 376, i.e., punishment for rape, witnessed some essential changes. The current amendment introduced a new sub-section of sub-section (2) that now provides punishment for rape committed by a member of the armed forces deployed in an area by the Central or a State Government in such an area.

Further, Section 376A was also inserted in the Section, providing rigorous imprisonment for an accused of not less than twenty years, which may extend to life imprisonment or even death if the act of rape committed by him leads to the death or vegetative state of the victim.  

Subsequent to all the above-stated Sections, Section 376 B, Section 376 C, Section 376 D, and Section 376 E were also inserted in the Indian Penal Code, providing various new sexual offences relating to sexual intercourse by a husband with his wife during separation, rape by a person who is in authority, gangrape, and punishment for repeat offenders. 

Kathua rape case and the Criminal Law (Amendment) Act, 2018

In 2018, the nation once again sparked outrage against the country’s criminal laws when an eight-year-old girl was gang raped by six accused persons for a week before being killed. Reforms were made after this alleged incident with a minor girl. The Criminal Law (Amendment) Act of 2018 introduced harsher and stricter penal punishment for rape for those individuals who target minor girls who are between the ages of 12 and 16. The Act introduced rigorous imprisonment of not less than twenty years with a fine that may extend to life or death in the case of rape committed on a minor girl below the age of 12, and gang rape will be punishable with life imprisonment with a fine that may extend to death. 

In case the victim is below the age of 16 years then the punishment for the committed sexual offence shall be imprisonment for 20 years which may extend to life imprisonment.      

Rape and capital punishment in India

Capital punishment, or the death sentence, is the last punishment a court imposes on any accused person to deliver justice in society. Capital punishment means taking a person’s life judicially or through a judicial order. Regarding the concept of capital punishment in the penal law of the country, there is a constant debate among moralists, human rights activists, and the judiciary on whether such a punishment should be implemented or not and when it should be exercised.

The constitutional validity of capital punishment came before the Supreme Court’s constitutional bench in the case of Bachan Singh v. the State of Punjab (1980). The case emerged as a vital issue to put for adjudication before the highest court because of the conflicting judgments in regard to it. In Jagmohan v. the State of Uttar Pradesh (1973), it was observed that the imposition of the death penalty is constitutionally valid, whereas the case of Rajendra Prasad v. the State of Uttar Pradesh (1979) gave entirely opposite and conflicting views. In the Rajendra Prasad case, Justices Krishna Iyer and D.D. Desai ruled that when the trial court concludes a case convicting the accused, it is the duty of the court to ask the prosecution whether the highest punishment is required or not. And if the prosecution calls for such a penalty, then it should state or provide the crucial circumstances on whose basis the punishment is required. Thus, in this particular case, the Bench provided the essential element of special reasons and circumstances to be looked at for imposition. 

The idea of “hanging the rapists” is widely condemned by the general public. After the most horrific cases like the Nirbhaya case, and the Kathua rape case, inter alia, people in society are generally filled with rage and come down to the streets to get justice for the victim and their families. The concept of capital punishment for rape is always demanded by the public. However, this is not the case with the judiciary, as the courts of law do not follow the emotions and rage of society, but rather the well-established law in India regarding capital punishment. 

To impose capital punishment on a convicted rapist, it is essential for the court to ascertain and find through its keen skill of adjudication whether the case falls in the category of “the rarest of the rare.” This principle mainly applies to cases where the action is of such a barbaric and inhumane nature, like in the Nirbhaya rape case, which only resorts to doing justice through the judicial hanging of the accused. In  Bachan Singh v. State of Punjab (1980), the Supreme Court required capital punishment to be done only in the “rarest of the rare,” where the crime committed by its very nature forecloses the scope of life imprisonment and only leads to death punishment.

Further, the court of law, while dealing with rape cases, cautiously observes the effect of the accused person on the victim. These effects would refer to the death or mental trauma of the prosecutrix as a consequence of the forceful sexual intercourse. The court imposes a death sentence in cases where the victim’s private parts or herself are ravished to such an extent that it leads to her death. Therefore, in order to impose capital punishment in India for the offence of rape, it is essential for the case to show through its facts and circumstances that it falls under the “rarest of the rare” category, but what constitutes this rarity is a matter of the facts and circumstances of the case.            

Judiciary and rape punishment

In Indian democracy,  one of its pillars, i.e., the judiciary, keeps a check on the law and order of the nation. It acts as an authority over all the matters that affect the public at large. Rape is one of the biggest social evils that affect society since it scares and spreads horror among the common public about how women in society will be safe from such a heinous offence. 

The courts in India have since time immemorial acted, adjudicated, and punished the offenders who commit the barbaric offence of rape in the intoxication of their animal lust. However, it is to be noted that in the Indian Penal Code of 1860, the punishment for rape provided under Section 376 is a minimum of ten years of rigorous imprisonment with a fine that also may extend to life imprisonment and, in the case where the woman is below the age of 16, a minimum of 20 years. 

From a plain reading of the Section, it cannot be said that the Code provides for the death penalty for the offence of rape since it only talks about imprisonment. But, in certain cases dealing with the rape of a woman, the Supreme Court has punished the offender with the death penalty. What the court follows is the doctrine of “the rarest of rare cases.”

The case of Machhi Singh v. State of Punjab (1983) provides for a number of elements that are to be looked at for imposing death punishment on the accused. According to the 3-Judge Bench, the offence committed must be of the most heinous nature that anyone could ever imagine in order for the highest punishment to be applied. It further provides the following factors. 

  1. The manner of the commission of the offence;
  2. The motive for the commission of the offence;
  3. The impact of the offence on the whole society;
  4. Facts and circumstances leading to the offence;
  5. The vulnerability of members of society at the hands of the offender;
  6. The magnitude of the crime;
  7. The personality of the victim of the offence.

Landmark judgements on the punishment of rape 

Mukesh & Anr v. State for NCT of Delhi & Ors, (2017) (Nirbhaya case)

In this case, a paramedical student was tortured and raped by a group of six men, who inserted an iron rod into her vagina and her intestines, abdomen, and genitals. Due to this, her private parts were completely destroyed. For the crime committed, one of the accused, who was a juvenile, was sent to a reform facility for three years. One of the accused committed suicide in jail, and the rest were given the death penalty. During the hearing, the Supreme Court stated that punishment or sentencing in these cases is a matter of discretion that must be exercised while weighing the circumstances that are aggravating or mitigating. Aside from that, what must be seen is the protection of society as a whole, balancing the concepts and spirit of the criminal’s rights and the rights of society as a whole. 

Rameshbhai Chandubhai Rathod v. State of Gujarat (2011) 

In this case, the victim was raped and murdered by the accused. The Supreme Court ruled that imposing a sentence on the accused without considering its impact on the social structure of society is potentially ineffective. The court, while dealing with sentencing, has at times applied the “crime test” or “rarest of the rare test” to ascertain whether the crime committed has shaken the conscience of the common people and if it has elicited an extreme rage in the public in relation to its criticism. Courts have also ruled that when the prosecutors are helpless women, children, or elderly people and the accused exhibits a savage animal mentality, committing the crime in a tortious manner, there is no mercy and the death penalty should be imposed.

Dhananjay Chatterjee alias Dhana v. State of West Bengal (1994)

In this case, the accused, who was a security guard by profession, raped and murdered a minor schoolgirl in retaliation for his transfer because of the victim’s complaint. The Supreme Court of India, in its verdict, imposed a death sentence on the accused person while observing that the measure or rule of punishment in a criminal trial must depend on the atrocities and inhuman acts done by the accused person on the victim, along with his conduct and the victim’s helplessness. 

Bantu v. State of Uttar Pradesh (2008)

In this case, the victim, a five-year-old girl, was raped and murdered in the most horrific manner by the accused person, who committed sexual intercourse with her and then inserted a wooden stick in order to kill her with the motive to prevent her from informing anyone afterwards. The Supreme Court found the accused guilty and awarded capital punishment, observing that, on the issue of imposition of appropriate punishment, the court must try to balance social order and criminal deterrence in a society where it has to impose the highest penal punishment. It further stated that at every step in a criminal trial, the present mitigating and aggravating factors must be keenly judged.

Conclusion 

From the nineteenth century to the present, Indian penal law has undergone numerous critical and changing reforms through amendments that shaped criminal law in accordance with changing societal notions. Although rape laws are in place to deliver justice, they lack strict authority. An offence like rape must be dealt with with an iron hand because it does not only destroy the person of the victim; it thrashes and mitigates the very soul as well. Stricter punishment, like rigorous life imprisonment, must be the only punishment given to the accused person since the scope of capital punishment is very limited in India due to the “rarest of rare” principle. Above all, what has to be looked at by the judiciary is the implementation of punishment by examining the aggravating and mitigating factors, or whether the committed offence calls for a stricter punishment or not.       

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:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

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Section 354 IPC

By
Sneha Mahawar
-
0
Section 120A

This article is written by Upasana Sarkar, a student at Jogesh Chandra Chaudhuri Law College. This article aims to provide an understanding of Section 354 of the Indian Penal Code, 1860. It provides a detailed analysis of the crimes and punishments that a man faces if he outrages the modesty of a woman.

This article has been published by Sneha Mahawar.​​ 

Introduction 

In this 20th century, where people are given various rights and freedoms, there is still a long way to go in safeguarding the modesty of women in India. Many laws and provisions are enacted by the legislature to protect women from any type of domestic violence, criminal force, rape, assault, molestation, sexual harassment, and many more. Women should be made aware of these rights so that they can protect themselves with the law. It is the duty of every citizen to respect women and act accordingly. But many people still try to violate those provisions. 

In India, various provisions have been enacted for safeguarding the rights of women, like Section 304 (Punishment for culpable homicide not amounting to murder), Section 312 (causing miscarriage), Section 313 (Causing miscarriage without woman’s consent), Section 314 (Death caused by act done with intent to cause miscarriage), Section 354 (Assault or criminal force to woman with intent to outrage her modesty), Section 354A (Sexual harassment and punishment for sexual harassment), Section 354B (Assault or use of criminal force to woman with intent to disrobe), Section 354C (Voyeurism), Section 354D (Stalking), Section 494 (Marrying again during lifetime of husband or wife), Section 498 (Enticing or taking away or detaining with criminal intent a married woman), Section 498A (Cruelty), and Section 509 (Word, gesture or act intended to insult the modesty of a woman) of the Indian Penal Code, 1860, and many other provisions. Section 354 of the Indian Penal Code is an important provision that pertains to outraging the modesty of a woman with the use of criminal force or assault. 

Section 354 of IPC 

Section 354 of the Indian Penal Code deals with criminal force or assault with the intention of outraging her modesty. Section 354 states that whoever 

  • assaults or uses criminal force on any woman,
  • With the intention to outrage the modesty of women or knowing that the act will most likely outrage their modesty,

The person will be punished with imprisonment for a term that shall not be less than one year but may extend to five years and will also be liable to a fine. 

Essentials of Section 354 IPC 

The circumstances that determine if the modesty of a woman has been outraged are given in Section 354 of the IPC. The essential ingredients are as follows:

Presence of assault or criminal force

Section 350 of the Indian Penal Code deals with criminal force, and Section 351 of the Indian Penal Code deals with assault. 

Criminal force states that anyone who uses force intending to cause any harm, injury, fear, or annoyance to any person without his permission, knowing that it will create fear and cause harm is called criminal force. 

Illustration: ‘A’ encouraged ‘B’ to throw a stone at ‘C’ with the intention of creating fear and causing harm to ‘C’. ‘A’ is guilty of using criminal force on ‘C’.

Assault states that any person who makes any gesture or any action with the knowledge that it will make the other person apprehend the meaning of the gesture is to harm, injure or create fear is said to have committed an assault. Assault is said to take place when the opposite party from the gesture of the person comprehends the danger.

Illustration: ‘X’ with the intention to create fear in the mind of ‘Y’ went towards him with a knife in his hand. ‘X’ has committed an assault against ‘Y’.

Therefore, the essential ingredient is the presence of intention and knowledge in criminal force and assault.

Assault must be on a woman

Section 10 of the Indian Penal Code defines a woman as a female human being of any age, which means a newborn to any old-age female. The victim of assault needs to be a woman, as it deals with crimes against women.

Presence of intention and knowledge

The intention is the main factor on the basis of which an accused is either convicted or acquitted. The presence of knowledge is also equally important for committing the act. On that basis, the charges are weighed, and the punishment is given accordingly.

Outraging the modesty of a woman 

The definition of modesty is not given in the Indian Penal Code. The meaning of modesty for a woman is determined by various judgements of the Apex Court. 

“Criminal force” and “modesty” defined 

Section 350 of the Indian Penal Code states that if a person intentionally uses force against any other person, without the consent of that person, for the purpose of committing an offence or intending to cause harm by using such force, or knowing that the use of such a force will cause injury, fear, or annoyance to the person, it is said to be the use of criminal force against that person.

Criminal force against a woman is defined in Section 354B of the Indian Penal Code. A man is said to have used criminal force against a woman when he assaults or uses criminal force towards any woman or abets such an act with the intent to disrobe or compel her to be naked. 

Illustration: ‘X’ intentionally pulls a woman’s veil. He uses force to do that without the woman’s consent, knowing it will create fear or annoyance. He has used criminal force against her, as his intent was to annoy her.

Modesty is not defined in any section of the Indian Penal Code. The court, from time to time, determines whether a woman’s modesty is being outraged by going through the facts and circumstances of a case.

The Supreme Court of India defined ‘modesty’ as female decency and a virtue that girls possess as a result of their sex. The punishment for such an offence is usually between one and five years in prison along with a fine. If the offence is more serious, it may even extend up to seven years. There was a lot of ambiguity regarding the meaning of a woman’s modesty and diverse speculations regarding the definition of modesty for a girl. Various cases were determined by various courts, but no exact definition of a woman’s modesty could be determined from them.

In Raju Pandurang Mahale v. State of Maharashtra (2004), the Supreme Court concluded that the essence of the woman’s modesty was her sex. The Apex Court in its judgement defined ‘modesty’ in the same manner as it is given in the Oxford Dictionary in relation to a woman since the word ‘modesty’ has not been defined in the Indian Penal Code.

Punishment for Section 354 IPC 

In the past, stalking was not considered a criminal offence in India under the Indian Penal Code. The provisions that protected the rights of women were Section 354 of the IPC for sexual harassment and Section 509 for abusing the modesty of a woman.

Punishment for sexual harassment under Section 354A

This section states that a man is said to have committed sexual harassment against a woman when there is a:

  • physical contact and advances that involve explicit sexual gestures; or 
  • demand or proposition for sexual favours; or 
  • display of pornography against the will of a woman; or 
  • sign that gives sexually coloured remarks.

If a man commits the first three offences listed in the above-mentioned bullets, he shall be punished under Section 354A of the IPC with rigorous imprisonment for a term that may extend to three years, or with a fine, or both. But if a man commits the offence of the last bullet, he shall be punished with imprisonment for a term that may extend up to one year, or with a fine, or both. An offence under Section 354A is cognizable, bailable, and can be tried by a magistrate. 

Punishment for assault or use of criminal force against a woman under Section 354B

This section deals with the protection of women against men who assault or use criminal force towards any woman or encourage such an act with the intention to disrobe or compel her to be naked. 

If a man commits such an offence, he shall be punished with imprisonment for a term of three years, which may extend up to seven years, and shall also be liable to a fine. An offence under Section 354B is cognizable, non-bailable, and can be tried by any magistrate. 

Punishment for voyeurism under Section 354C

This section deals with the privacy of a woman. Voyeurism is an act committed when a man watches or takes photos of a woman engaged in a private act without her knowledge. 

If a man commits such an offence, he shall be imprisoned for a minimum period of one year, which may extend up to three years, and shall also be liable to a fine in case of a first conviction. In case of a second or subsequent conviction, he shall be imprisoned for a minimum period of three years, which may extend up to seven years, and also be liable to a fine. 

This section punishes a man who captures images of a woman or intentionally watches her doing a private act. Nevertheless, if a woman consents to have her photos taken or allows for any activity but does not consent to disseminate the same to any third party, and where such image or act is disseminated by any other person, he shall be liable under the Code. An offence under Section 354C is cognizable and bailable at the first conviction but cognizable and non-bailable at the second or subsequent conviction.

Punishment for stalking under Section 354D

This section deals with the protection of women against stalking. Stalking refers to a form of harassment that involves repeated and persistent intent to cause fear or harm to the person who is being followed. It can be in any form, be it physical or online. Thus, Section 354 is not a gender-neutral offence. Only a woman can seek justice under this section. Stalking was introduced as an offence under Section 354D in the Amendment Act of 2013 along with other offences such as trafficking, voyeurism, and others. 

If a man commits such an offence, he shall be punished with imprisonment for a term that may extend up to three years and shall also be liable to a fine for his first conviction. For his second or subsequent conviction, he shall be punished with imprisonment for a term that may extend to five years and shall also be liable to a fine.

Landmark case laws 

  1. In the case of State of Punjab v. Major Singh (1967), the offender interfered with the epithelial duct of a seven-and-a-half-month-old female child, which led to an injury in the vagina of the infant. The accused was held guilty under Section 354 of the Indian Penal Code. It was observed that there is no age limit, no measure of understanding of the abusive act and that the consciousness of a female is not essential to constitute the offence. The criminal intention and knowledge of the offender are at the crux of the matter. The provision of Section 354 would be applicable when a reasonable man believes that the act he is committing is sufficient to tarnish the modesty of the victim. The court further stated that the act of removing a woman’s saree coupled with a request for sexual intercourse would be an outrage to the modesty of a woman. 
  2. In the case of Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995), the accused hit the back of a lady at a public gathering. The petitioner was an I.A.S. officer who lodged an F.I.R. against the accused. The learned Chief Judicial Magistrate of Chandigarh held the accused guilty under Section 354 and Section 509 of the IPC. The Supreme Court referred to the Oxford Dictionary to find the meaning of the word ‘modesty’. It was observed that the behaviour of the offender outraged the decency of the woman. This case is also known as the “butt-slapping case” in the media.
  3. In the case of Ram Pratap v. State of Rajasthan (2001), the offender entered the victim’s house when she was alone at home. The accused made her lie on a cot and misbehaved along with her. It was observed that no preparation for committing rape was done. So instead of convicting him under Section 376 or Section 511 and Section 452 of the IPC, he was held guilty under Section 354 and Section 451 of the IPC. He was sentenced to simple imprisonment for a period of six months, along with a fine. 
  4. In the recent case of the State of Maharashtra v. Rovena Aadnya Amit Bhosle (2020), it was held that women could also be held guilty of outraging the modesty of women. The accused was a woman who assaulted her neighbour by tearing her nightdress in the passage of the building in front of several people. The victim was left completely naked and was beaten with a shoe. The metropolitan magistrate of the Mumbai Court held the accused guilty under Section 354 of the IPC as being gender neutral. She was convicted and sentenced to one year of rigorous imprisonment for outraging another woman’s modesty. As she was the mother of three, the youngest being only one and a half years old, she was awarded the minimum punishment stated under Section 354 of the Indian Penal Code.

Conclusion 

Section 354 is a special section that protects women from the criminal acts of men. It safeguards the ‘modesty’ of women by giving rigorous punishment to those men who try to outrage the modesty of women. As crimes against women are rising rapidly day by day, the provisions of this section act as a shield and protect women from exploitation. Therefore, this section serves its purpose by granting these rights to women and punishing those men who commit indecent and immoral acts and try to exploit them.

Frequently Asked Questions (FAQs) 

Is Section 354 of the IPC a compoundable offence?

Compoundable offences are those that can be compounded or compromised outside of court. Offences that are committed under Section 354 of the IPC were, in the beginning, compoundable. But the same has been made non-compoundable after the amendment to the code that was made in 2009.

When was Section 354 added to IPC?

Section 354 of the IPC was already there in the original Indian Penal Code, 1860. But the nature of offence has changed after criminal law amendments. The ambit of Section 354 has been expanded with the Amendment of 2013 with the insertion of Sections 354A, 354B, 354C and 354D. 

What is the punishment for molestation under Section 354 of the IPC?

The punishment for molestation under Section 354 of the IPC is rigorous imprisonment for a term that may extend up to three years, or a fine, or both. There are various offences under this heading, such as physical contact, making sexual remarks, showing pornography, and many more. So the punishment also varies accordingly. 

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.

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Section 14 of Hindu Marriage Act, 1955

By
Rachit Garg
-
0
Marriage

This article has been written by Naveen Talawar, a student at Karnataka State Law University’s Law School.  The article deals with Section 14 of Hindu Marriage Act, 1955, which prohibits filing a divorce petition with the court before a year has passed since the date of marriage. Further, the article deals with its scope, application, exceptions, and judicial pronouncements.

It has been published by Rachit Garg.

Introduction

Marriage, according to all matrimonial laws, is the union of a man and a woman that imposes certain marital duties and confers certain legal rights on each of them. It was regarded as a samskara, or holy sacrament, in ancient Hindu law. The idea of divorce was not present because marriage was thought to be a union divine in nature. Divorce is not mentioned in either of the Smritis or in the Vedic texts. When two people were united through the sacramental ceremony of marriage, there was no such thing as separation or divorce; instead, they were bound to abide by the laws and rules that were imposed on them as part of the institution of marriage.

However, marriage as we understand it today is entirely different. The couples start thinking about getting a divorce whenever there is a disagreement between them. As a result, Section 14 of the Hindu Marriage Act, 1955 was enacted, which states that no divorce can be filed within a year of marriage in order to prevent hastily made mistakes and poor decisions.

The Hindu Marriage Act permits divorce on the grounds of dissatisfaction or if the marriage can no longer be maintained. Normally, a divorce petition can only be filed after the completion of one year of marriage. A court may, however, permit a petition to be filed earlier than one year in certain exceptional circumstances, such as when the petitioner is harmed or the respondent is mentally unstable. Section 14 of the Hindu Marriage Act, 1955, prohibits the filing of a divorce petition within the first year of marriage. Since temperamental differences between the partners can be resolved over time and should not be used as grounds for divorce, it establishes a window for reconsideration and reconciliation.

Scope of Section 14 of Hindu Marriage Act,1955

Section 14 establishes the principle of a fair trial, which states that provisions of law that are advisory rather than mandatory in nature can be said to be complied with if there is sufficient, rather than absolute, compliance with those provisions of law. Although Section 14(1) of the Hindu Marriage Act begins with a non-obstante clause (a non-obstante clause is added to a provision to support its enforceability over another provision that conflicts with it), the provision to that subsection changes the nature of the provision of law so that it is “directory” rather than “mandatory.” Once a provision of law is directory in nature, as previously stated, what is to be seen is sufficient and/or ample compliance with the provision of law, not strict compliance with the relevant provision of law.

This Section states that no court shall entertain a divorce petition before the one-year of the marriage. Before the Marriage Laws (Amendment) Act, 1976, no court could entertain a divorce petition three years from the date of marriage; however, the aforementioned Amendment Act reduced the waiting period to one year.

The Section also states that in cases of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent, the court may consider a petition even before the passing of a year. If it is discovered that the leave was obtained through misrepresentation or withholding of information, the court has the discretion to dismiss the main petition or postpone the implementation of the decree for a year from the date of marriage.

The court shall also consider the interests of any children born of the marriage and the likelihood of a peaceful reconciliation between the parties while deciding an application made under Section 14(2).

Subject matter of Section 14 of Hindu Marriage Act, 1955

According to Section 14, a divorce petition cannot be filed within the first year of marriage. Therefore, one year might be seen as the time allotted by the law for resolving, classifying, comprehending, and communicating problems with one another. Therefore, until a year has passed, no court may hear a divorce petition. The Court may permit the petition to be presented after receiving an application in accordance with the rules of the High Court in cases of exceptional hardship to the petitioner or great depravity on the part of the respondent.  However, the court may decide to dismiss the petition without prejudice if it finds that there has been a misrepresentation of facts or concealment of the nature of the matter after hearing the petition.

No divorce petition within a year of marriage

The rules enumerated in this Section are meant to give each marriage a fair chance to succeed. The general rule established in Section 14(1) is that until the one-year period specified by this Section has passed, the court cannot entertain a petition for a decree of divorce based on any of the grounds specified in Section 13 for divorce. Apart from exceptional cases covered by the proviso, the court would have no jurisdiction to entertain any such petition before the statutory period expired. 

Section 14(1) states that no petition for dissolution of marriage may be presented to the court unless one year has passed since the date of marriage. According to Derrett, “this one-year period is illusory. It is woefully inadequate given that, in Indian circumstances, animosity within the first year is frequently caused by “in-law” and dowry manoeuvring rather than other factors. The “in-law” problem will, without a doubt, be resolved over time, especially in the beginning.” However, it is argued that the one-year embargo does not mean that divorce will be possible after a year but rather that the aggrieved spouse will be able to file for divorce after that time period has passed.

In the case of Meganatha Nayagar v. Shrimathi Susheela (1957), the Madras High Court noted that Section 14 contains restrictions presumably intended to prevent parties’ recourse to legal proceedings before they have made sincere efforts to save their marriage from dissolution. The objective is to prevent hasty legal action taken by spouses without giving them enough time to adjust and give their marriage a trial. It is based on public policy because marriage is the cornerstone of civil society, and no part of the laws and constitution of a country can be more crucial to its citizens than the rules governing the manner and conditions of forming and, if necessary, dissolving marriage contracts.

Provision is only directory and not mandatory 

The requirement in Section 14 that there must be a year between the date of marriage and the filing of a divorce petition is only a directory, not mandatory. Section 14 opens the door to reconsideration and reconciliation. It acknowledges that temperamental differences between the parties can be addressed over time and should not be used to end a marriage. The mandatory one-year period provided by the Section encourages couples to calm down and reconsider their marriage in order to save it.

In the case of Rabindra Nath Mukherjee v. Iti Mukherjee (1991), the husband filed a suit against his wife on the ground of cruelty under Section 13 of the Act. The trial court dismissed the petition on the grounds that it was filed just a few days before the completion of one year from the date of marriage, in violation of the provisions of Section 14(1). In an appeal to the  Calcutta High Court, it was determined that the provision is not mandatory.

In Indumathi v. Krishnamurthy (1998), it was held by the Madras High Court that if a petition for divorce is filed within one year of the marriage, that is, within a few days of the marriage, without any application under Section 14 seeking leave of court to entertain the divorce petition, then there is no harm in entertaining such an application by the court because Section 14(1) of the Hindu Marriage Act, 1955, is only directory in nature, and by filing a subsequent application there is considerable adherence.

The High Court of Delhi ruled in Sankalp Singh v. Prarthana Chandra (2013) that the court may permit a petition to be filed before one year of the marriage in certain circumstances of unusual hardship or depravity on the part of the respondent.

Discretion of the court

The proviso confers discretion on the court. The court may allow such a petition to be presented pending a preliminary determination of the matter. The first issue that would come up is whether the situation falls under the category of “exceptional depravity” or “exceptional hardship.” If the case fits into one of the aforementioned categories, the court may, at its discretion, allow the petition to be presented. The court has the discretion to decide whether to grant leave under this Section and whether to grant an ex parte order. If the court decides to grant leave, it must first determine if there is a chance that the parties will reconcile. Furthermore, the court must consider the interests of any children of the marriage during this preliminary stage of granting leave, as expressly provided in Section 14(2).

The possibility of reconciliation is a crucial factor in all applications for divorce. If there is a child from the marriage, the interests of the child should be a very important factor to take into account. The appellate court will not interfere with the district court’s discretion unless it followed the wrong legal principle, neglected to take into account a crucial factor, or committed a grave injustice. The proviso is meant to change the impact of the one-year limit in extremely rare circumstances. It enables the court in these situations to consider a petition for a divorce decree before the completion of the statutory period.

The procedure for requesting special leave to file such a petition will be governed by any rules the High Court may make in this regard. Rules regarding the application for special leave under the Section, service of the order granting leave ex parte, and the subsequent procedure have been developed by various courts in the event that the respondent desires to contest the divorce petition on the grounds that the leave for filing the petition has been improperly obtained or erroneously granted.

When leave is obtained by misrepresentation

The proviso also states that, even though the court may grant a divorce, it may suspend the decree’s effectiveness by adding a provision stating that it will not take effect until after the passing of a year. If it appears to the court during the hearing of the petition that leave had been granted and not revoked due to misrepresentation or concealment of the true nature of the case, the court will be satisfied that the grounds for relief exist. However, the court is not required to do so and may, at its discretion, completely reject the divorce petition. In this case, a petition may be filed on the same grounds after the time period specified in the Section has expired.

In Rabindra Nath Mukherjee v. Iti Mukherjee (1991), the court stated that when permission to file a petition within a year has been obtained through misrepresentation or concealment of the facts of the case, the court may, if it grants a divorce, delay the implementation of the decree until the end of the expiry of the period. The provision to Section 14(1) states that “the court may dismiss the petition,” but without prejudice to any petitions that may be brought after the expiration of one year. A leave obtained by suppressio veri (suppression of the truth) or suggestio falsi (suggestion of an untruth) should be treated as vitiated to the extent of being non-est.

Applicability of Section 14 of Hindu Marriage Act, 1955

This restriction only applies to divorce petitions that may be filed under Sections 13 or 13(B) of the Act; it does not apply to petitions filed under Section 12 seeking a decree declaring a marriage voidable on the basis of voidability.

In Ravulapalli Yogamma v. Thellamekala Venkata Ratnam (1998), the wife filed a petition for the dissolution of marriage on the grounds that there had been no consummation because of the husband’s impotence. It was denied by the trial court since the application was submitted within a year of the date of her marriage. Since the said court denied her request for a review, she appealed. Accepting the appeal, the Andhra Pradesh High Court determined that the Section only applies when a divorce decree is sought to dissolve a marriage, not when an annulment on specific grounds is sought.

Exceptional situations under Section 14 of Hindu Marriage Act, 1955

Although it is a good idea to prevent hasty divorces, the provision does not completely prohibit divorce petitions filed before the end of the first year of marriage. The provision of the Section comes to the aid of exceptional cases, and the court will decide on each case based on the merits because there may be difficult cases that justify early court adjudication. Exceptional circumstances could include:

  1. Exceptional hardship to the petitioner; or,
  2. Exceptional depravity on the part of the respondent.

The Act doesn’t define the terms “exceptional hardships” or “exceptional depravity.” These expressions cover a wide range of topics and are filled with extraordinary circumstances. Therefore, it would be possible to grant a divorce decree without waiting for the predetermined one-year period to pass in cases where the petitioner is experiencing so many hardships that life has become an absolute tragedy or the respondent has committed such a heinous moral offence that it has become completely intolerable to the petitioner.

The court must determine whether the allegations made in the petition are of such a nature that, if proven, they would constitute exceptional hardship or depravity. While doing so, it is anticipated that the court will decide the application based on the preliminary facts and contentions and will exercise its discretion in accordance with that decision. The term “exceptional hardship,” as used in the Section, can refer to allegations that, while speculative, may be sufficient to support a prayer for a divorce decree. The trial court must specify the reasons that it found to be of exceptional hardship in order to consider a petition for divorce filed within a year of the marriage. 

Section 14 is based on public policy that adopted language similar to that found in the Matrimonial Causes Act, 1950, in England, including the provision for reconciliation. Following Denning, L.J.’s observations in Bowman v. Bowman (1949), the Madras High Court stated in Meghanatha Nayagar v. Shrimathi Susheela (1956) that some general principles in English law can be used as a guide in determining what could be considered exceptional hardship or depravity:

  1. It was observed that the use of the word “exceptional” will determine the answer. This entails an investigation into the level of alleged depravity or hardship which, it is obvious, may prove to be a challenging task, or both. Naturally, adultery or cruelty are the only situations in which the issue is raised.
  2. Adultery committed by one of the spouses within a marriage may be regarded as ordinary depravity. It may not involve exceptional hardship on the innocent spouse.
  3. However, if the adultery is combined with other matrimonial offences, such as if a husband not only engages in adultery but also deserts his wife in favour of another woman or abuses her, not only causing her pain through his adultery but also harm through his abuse,  constitutes exceptional hardship to the wife.
  4. Even if adultery is not coupled with desertion or cruelty, it may still be committed in circumstances that show “exceptional depravity” and even if adultery is not coupled with another matrimonial offence, the consequences may still result in exceptional hardship for the applicant, as in the case of a wife who has a child by another man as a result of her adultery.
  5. The husband who commits adultery within a few weeks after getting married, or who does so in a promiscuous manner with multiple women, or with his wife’s sister, or with a servant, may be considered to be exceptionally depraved.
  6. Again, cruelty by itself is not exceptional.  If it is combined with aggravating factors like neglect or drunkenness and it is particularly brutal or harmful to health, combined with perverted lust, it does not show the respondent’s exceptional depravity but results in exceptional hardship for the applicant. 

Determining whether there is a chance for reconciliation in each of these cases is a significant factor. It is important to find out what the applicant has already done to try to make the marriage successful or find reconciliation at that point. The application may be rejected by the court if it determines that nothing reasonable has been done in his favour.

In Chandrima Guha v. Sumit Guha (1994), it was observed by the Calcutta High Court that allegations that the wife was an ultra-modern lady, unfit for a simple middle-class family. Her conduct and actions caused members of the husband’s family to suffer mental and physical pain and torture, to the point that the matter had to be brought to the police on multiple occasions. It was held not to constitute hardship within the meaning of the Section.

In Vinod Arora v. Manju Arora (1982), the Delhi High Court observed that the hardship required to move an application under Section 14 of the Act must be exceptional. The husband would not be entitled to move the petition for dissolution before the expiration of one year from the date of marriage based solely on the fact that the wife refused to engage in sexual intercourse with him after three days of marriage or that she frequently avoided the matrimonial home without a valid reason or justification.

The Kerala High Court ruled in Gijoosh Gopi v. Shruthi S. (2013) that Section 13(B) of the Act is subject to Section 14.  In a joint petition for divorce, the parties in this case, who had been living separately for two weeks after their wedding, claimed that there had been no mutual coordination and that they had never shown each other any love or affection during their marriage. This, according to the Court, clearly represents an exceptional hardship for them. It was ruled safe to invoke the proviso to Section 14 as they could not possibly stay together.

Thus, while under Section 13(B), a period of one year should elapse from the date of marriage, Section 14 is an exception to this necessity. The family court had dismissed the divorce petition on the ground that the parties had not been living separately for at least one year since the solemnization of the marriage. On appeal, the proviso to Section 14 was invoked, and divorce was granted.

In Rishu Aggarwal v. Mohit Goyal (2022), the Delhi High Court made the observation that a  mere incompatibility of marriage or one with irreconcilable differences resulting from temporal or behavioural differences would not, in and of itself, result in the causing of exceptional depravity by either party to the other. A mere denial of sex by one or both parties to the other cannot be characterised as an act of exceptional depravity. The denial of sex by one spouse to the other, or by both of them to each other, may undoubtedly result in “hardship,” but it cannot be deemed to be “exceptional hardship” under Section 14(1).

Recent judicial pronouncement

Rishu Aggarwal v. Mohit Goyal (2022)

Facts

In the aforementioned decision, the Family Court denied the wife’s application for dissolution of marriage by mutual consent filed under Section 13(B) of the Hindu Marriage Act, 1955. The appellant, the wife, filed the current appeal under Section 19 of the Family Courts Act, 1984, in an attempt to overturn and nullify the order of the Family Court.

The respondent and appellant barely cohabited as husband and wife and had no children of their own. Due to temperamental issues, the parties allegedly began living separately. A petition under Section 13(B)(1) of the Act was filed, along with an application for permission to file the petition before the one-year cooling-off period under Section 14.

By asserting that both parties denied having any sexual interactions, which resulted in a situation of ‘extraordinary hardship’ and ‘extreme depravity.’ Hence, the parties attempted to satisfy the requirements of exceptional conditions under Section 14.

Issue

The issue raised before the Court was whether it was possible for a married couple’s refusal to engage in sexual activity due to a temperamental difference to be deemed ‘extraordinary’ enough to result in the dissolution of the marriage without even waiting a year for a chance to reconcile. In response to the same, the Court said that it is reasonable to assume that a married couple will not be able to maintain a good conjugal relationship if they have significant, temporal, or behavioural challenges.

Judgement 

The Delhi High Court observed that a marriage with simple incompatibilities or one with irreconcilable differences caused by temporal or behavioural inequalities would not, in and of itself, result in either party inflicting extreme depravity upon the other. An act of extraordinary depravity cannot be deemed to have occurred when one or both parties simply refuse to engage in sexual activity with each other.

Although the refusal of sex by one spouse to the other, or by both of them to each other, can be deemed ‘hardship,’ it is not ‘extreme hardship’ as defined by Section 14(1). The High Court ruled that denying cohabitation within a marriage cannot be justified as an instance of ‘exceptional hardship’ or ‘extraordinary depravity.’ As a result, a one-year requirement cannot be waived. The waiver must instead be granted as an exception as opposed to a rule.

The refusal to enter into or failure to complete a conjugal relationship due to behavioural or temperamental differences is the only cause for divorce if done with cruelty, according to the Court. The decision of the Family Court was therefore upheld, and the appeal was denied.

However, the Court reserved the rights of the parties to move before it after the expiration of the mandatory waiting period.

Conclusion

Restrictions present in Section 14 of the Hindu Marriage Act are presumably intended to prevent parties from seeking legal action before they have made an honest effort to save their marriage. It is based on public policy because the rules governing how marriage contracts are created and, if necessary, dissolved are among the provisions of a nation’s laws and constitution that are most important to its citizens, as marriage is the cornerstone of civil society.

The expressions cover a broad range of subjects and are filled with extraordinary circumstances. The interests of children born out of a marriage and the question of whether there is a real possibility of a reconciliation between the parties must be taken into consideration by the court while making a decision. These factors are unrelated to the assessment of exceptional hardship or depravity. The likelihood of reconciliation must always take precedence in every circumstance.  Even if there is no immediate chance of a reconciliation and relations between the spouses are strained, the child’s best interests should always come first.

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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Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

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Indemnity bond

By
Sneha Mahawar
-
0

This article is written by Ishani Samajpati, who is pursuing B.A. LL.B. (Hons) under the University of Calcutta. This article seeks to provide detailed insight into an indemnity bond, including the different types of indemnity bonds,  parties to the bond, importance, purposes, terms, and conditions. It also briefly deals with the laws, legal enforceability, and judicial views relating to indemnity bonds in India. Finally, it also offers a glimpse as to what differentiates an indemnity bond from an indemnity contract, affidavits, insurance, or other available bonds. 

This article has been published by Sneha Mahawar.​​ 

Table of Contents

Introduction

Let’s imagine a scenario where your friend, X, is in dire need of monetary support and decides to borrow a certain amount. You, despite being her well-wisher, are not in a position to lend. So, you ask her to approach some third person, Z, who you think can help in this situation. However, Z hesitates to lend X since he doubts whether your friend will ever be able to pay the money back. You, in turn, take the lead and ensure Z that it is entirely your responsibility to see if Z is fully and properly paid back within a reasonable time.

In such a case, an indemnity bond fulfils the legal requirement. As can be understood, it is a type of bond. In a legal context, a “bond” refers to a legal document where the obligation to perform any specific act is mentioned in writing. The word ‘indemnity’ originated from the Latin word ‘indemnis’ which means “unhurt, uninjured, and free from loss.” Hence, the sole purpose of an indemnity bond is to reduce risks in transactions, businesses, and other matters.

An indemnity bond is a widely used legal instrument to fulfil contractual obligations in the event of failure of a certain party. The aspects, related laws, and how an indemnity bond is different from other legal instruments are further discussed in the following article.

Concept of indemnity

Before discussing an indemnity bond, it is important to understand the concept of indemnity. Indemnity is a legal agreement for compensation for any loss or damage. The loss or damage can be caused by certain individuals or by an uncertain event. In this case, one party assures to make up for the losses or damages, either financially or in any other way. The most common form of indemnity is a contract of insurance.

Related terms and conditions

  • Period of indemnity: The specific time period for which the indemnity is valid is known as the period of indemnity. 
  • Concerned subjects: Indemnity normally arises between an individual and a business. Often, in large business operations, the individual may also include the governments of any country. Sometimes, the government may provide the businesses or larger industries on behalf of its citizens, especially during the outbreak of any pandemic. For example, the foreign vaccine manufacturers demanded indemnity for any future claim of adverse effects by its citizens.
  • Forms of compensation: Indemnity is usually paid in three forms. They are either monetary payments or by repairing or replacement for the loss or damage caused. It largely depends on the situation.
  • Indemnity for acts done in good faith: It is applicable for public servants, especially government officials, police authorities and army officers, who may be required to execute certain illegal acts to fulfil their duties. For example, Section 74 of the Indian Forest Act, 1927 provides forest official indemnity for any act done in good faith.
  • Indemnity insurance: Indemnity insurance protects the holder from indemnity claims and provides costs of indemnity when required. Professional indemnity insurance is a common example of indemnity insurance which protects them against alleged negligence or inadequate service. It is used in professions where lawsuits are common, such as in the medical or legal field. The insurance limit is chosen based on the scale of the practice. Besides indemnity claims, it also covers litigation and settlement costs.
  • Letter of indemnity (LOI): Letters of indemnity (LOI) are similar to indemnity insurance. In LOI, the third party is responsible and should expedite any damages caused to a party by another. This is the reason why LOIs have also been termed “bonds of indemnity” or “indemnity bonds” which is the subject matter of this article.

Meaning of an indemnity bond

An indemnity bond is a legal document containing certain contractual obligations. It ensures an individual will not suffer in the event of any loss or damage caused by another. It assures that specific conditions between two parties will be met, even if the other party is unable to fulfil them. 

The difference between an indemnity and an indemnity bond lies in how they work. Indemnity ensures compensation for any loss or damage caused by another, including unforeseeable events. On the other hand, an indemnity bond mentions specific measures describing how compensation will be provided. 

According to the Cambridge Dictionary, an indemnity bond is a legal agreement that a financial organisation can use to recover a loan given to an individual by another financial organisation if the individual fails to repay the loan. In this case, a third-party financial institution will be required to repay the funds.

The literal meaning of the word “indemnity” given by Oxford Dictionaries is “protection against damage or loss, especially in the form of a promise to pay for any damage or loss that happens.”

Black’s Law Dictionary defines an indemnity bond differently in each of its editions. For example, the Second Edition simply defines an indemnity bond as a bond for the compensation of any loss. The Fourth Edition provides the definition as “a bond for the payment of a penal sum conditioned to be void if the obligor shall indemnify and save harmless the obligee against some anticipated loss.” Again, according to the definition given in the Ninth Edition, an indemnity bond is a bond that is used to reimburse the bondholder for any loss, actual or claimed, caused by the conduct of the issuer or some other person.

In simple words, an indemnity bond is a legal document that requires a third party to compensate, monetarily or otherwise, in the event of a loss caused to the party. Indemnity bonds also provide protection to multiple parties or both parties, depending on the individual situation.

Things to know about indemnity bond

Indemnity bonds are commonly used between individuals and financial transactions. Again, if there are losses or damages during the transportation of goods by another party, indemnity bonds ensure that the owners of the goods are compensated. It also applies if the goods are lost or stolen. Indemnity bonds are also used when borrowing, stating that the borrower has the responsibility for any damages caused.

Parties

An indemnity bond mainly involves two parties. They are principal and surety. The number of persons representing the principal and surety can be more than one if the situation requires it. Both the principal and surety jointly promise to indemnify the party, but the responsibility and obligation of each of the parties are different. 

The subject matter of the indemnity bond is executed for another party, known as the obligee. Hence, there are a total of three parties to an indemnity bond. The principal is also known as the “obligor” because he is obliged to follow the terms of the indemnity bond.

For example, by executing an indemnity bond for a death claim in a bank, both the principal and the surety agree to keep the bank indemnified against all future claims and demands in respect of the said assets deposited in the bank. In this case, the bank is the obligee to whom the indemnity bond is issued. The surety ensures that no future claim is brought against the bank.

The principal is the party that takes responsibility for issues such as failure of payment, non-payment, loss, or any damage caused. On the other hand, the surety promises to provide compensation in case of failure of the principal. Although the surety takes the responsibility to compensate, the principal is not completely discharged of liability. The surety only ensures that the obligee does not suffer from any damages caused by the principal. In some cases, such as to execute an indemnity bond for the transfer of shares or debentures, one or more witnesses may also be required.

Rights provided by indemnity bond

An indemnity bond safeguards the rights of the obligee through indemnification if the principal fails to fulfil his obligations or causes any loss or damage. Indemnification is the right to recover for any harm caused.

It ensures that the obligee remains entirely harmless. Hence, it provides the obligee with the entitlement to recover compensation for any issues if the principal deviates from what was promised.

An indemnity bond covers the obligee’s personal losses in particular. It also generally covers all compensation, including litigation costs and other charges as required.

Rights of the principal and surety

At a glance, it may seem that the indemnity bond only empowers the obligee in the event of any personal loss. Though the main function of an indemnity bond is to protect the obligee, the principal and the surety also have certain rights.

The most important right the indemnity bond provides to the principal is the right to negotiate the bond. The principal has the right to settle the total value of the bonded sum. However, the amount of the sum should be justified and reasonable.

Even if the principal fails to pay the already agreed sum, he has the right to decide the mode of settlement. It usually includes using his own personal and business assets.

Both the principal and the surety have the right to negotiate the terms and conditions of the indemnity bond. It includes how the obligee is supposed to be indemnified and the timeframe.

The surety is entitled to finalise an indemnity bond. Without the surety’s signature, the indemnity bond is completely invalid. In this case, the surety also loses any right of authorisation.

It is important to understand the provisions and aspects of the indemnity bond. The principal and surety should ensure it before finalisation. Otherwise, future failure to indemnify the obligee may have serious implications, including legal action or even insolvency. 

Characteristics

An indemnity bond has certain characteristics. They are as follows:

  • An indemnity bond is a legally enforceable contract only in the event of any loss or damage. Since it is a type of contract, it consists of all the characteristics of a valid contract.
  • The consideration of the object of an indemnity bond must be lawful.
  • An indemnity bond is executed on the good faith, reliance and mutual trust of each of the parties.
  • All the parties, including the obligee, should be persons of sound mind and not minors. An indemnity bond, however, can be created on behalf of minors. For example, the Government of West Bengal requires a person (who is not a natural guardian and producing a guardianship certificate would delay the process) to execute an indemnity bond if he wants to draw Provident Fund money, an amount upto Rs 10, 000/- on behalf of the minor child/ children. In this case, both the obligor (principal) and the surety are bound to the Government of West Bengal (represented by the Governor) a specific sum of money. The Governor of the state is the obligee here.

The Government of Karnataka also requires an indemnity bond in similar situations, though the limit is Rs. 5,000/-.

  • The indemnity in the indemnity bond on the parties may be either implied or expressed. In the case of an expressed indemnity, the terms of the indemnity bond specifically and directly mention how the obligee is supposed to be compensated. Whereas an implied indemnity is an indemnity that is created due to the situation. For example, if the obligee suffers losses due to the behaviour or refusal of the principal, he should be compensated.
  • An indemnity bond only covers the actual loss if and only if it is caused by events mentioned in the conditions. Hence, proper drafting of an indemnity bond is mandatory.
  • All the terms and conditions of an indemnity bond must be valid and acceptable in any court of law.
  • It is only valid for one-time or any specific period as dictated by the terms. It can even be valid for legal heirs or successors if such terms are mentioned in the indemnity bond, which once again reinstates the importance of proper negotiation and drafting of the indemnity bond, discussed later in this article.

Execution of indemnity bond

An indemnity bond is executed on non-judicial stamp paper of appropriate value. Sometimes, the obligee institutions asking to submit indemnity bonds themselves mention the value of non-judicial stamp paper. Often, the obligee institution requires the indemnity bond to be submitted as an annexure or as part of other annexures.

Laws related to indemnity bonds in India

A composite definition of an indemnity bond does not exist in any law in India. Indemnity bonds in India are subject to the provisions of two pieces of legislation: the Indian Contract Act, 1872 and the Indian Stamp Act, 1899. Contracts related to indemnity have been described in the Indian Contract Act, 1872, while bonds and the related stamp duties have been dealt with in the latter Act. Under Section 15 of the Government Securities Act, 2006, the bank is empowered to execute an indemnity bond with one or more sureties.

Provisions under the Indian Contract Act, 1872

Indemnity bonds are a type of contingent contract as defined under Section 31. A contingent contract is a contract that only takes effect if the event mentioned in the contract takes place. Otherwise, the contract becomes void.

A contingent contract is legally enforceable only after an “uncertain future event” mentioned in the contract happens. It cannot be enforced before then at all. If the event never happens or it becomes impossible for the event to happen, it can never be enforced, as laid down in Section 32 and Section 33 of the said Act.

Indemnity bonds are also only enforceable if the obligee suffers loss or harm. If the obligee does not get affected by the principal, he cannot get the benefit of an indemnity bond.

Reimbursement

Section 69 of the Act deals with the underlying principle of an indemnity bond. It states that by paying money due to another person by a person interested in the payment of money, that person is entitled to be reimbursed by the other who is originally supposed and bound by law to pay it. 

Contract of indemnity

As mentioned before, the Act does not define indemnity bonds as such. However, Section 124 defines the contract of indemnity. It is a type of contract between two parties where one party promises to save the other party from any loss, that is, to provide indemnity. The Act also states that loss or harm must be caused either due to the conduct of the promisor or by the conduct of any other person. This is called a contract of indemnity. 

The person who is committed to paying the loss is the indemnifier (promisor), and the person whose loss is required to be compensated is known as the indemnified or indemnity holder.

The definition given by the Act is not exhaustive. It includes:

  • Expressed promises to provide indemnity;
  • The loss should only be caused by the promisor or any other person on whose behalf he promises to indemnify.

But does not include:

  • Implied promises to provide indemnity;
  • Cases where the loss, harm or accident is not caused by the promisor or any other person on whose behalf he promises to indemnify.

Hence, if Section 124 is strictly interpreted using the literal rule of interpretation, as held by the Supreme Court of India in the case of B. Premanand and Ors v. Mohan Koikal and Ors (2011), even contracts of insurance and indemnity bonds have to be excluded from the definition.  

Relationship with English laws

The definition of a contract of indemnity under English law has a wider scope. The contract of indemnity has been defined as a promise to save “another harmless from loss caused as a result of a transaction entered into at the instance of the promisor.” It also covers losses or accidents that are not caused by the promisor or any other person on whose behalf he promises to indemnify. In respect of indemnity, Indian courts also follow this English definition.

A contract of indemnity may be expressed or implied. An implied contract of indemnity is inferred from the circumstances of the case or from the relationship of the parties.

The Unfair Contract Terms Act, 1977, under Section 4 had “Unreasonable indemnity clauses,”  by which an individual could not be charged unreasonably to indemnify another, but it was repealed by Schedule 4 Paragraph 6 of the Consumer Rights Act 2015.

Rights of each of the parties

Section 125 addresses the rights of the indemnity-holder/indemnified in the event of a lawsuit. According to it, he is entitled to recover from the indemnifier – 

  1. all damages in any suit relating to any matter of the contract of indemnity, which he has to pay;
  2. all costs to file or defend any such suit, which he may be compelled to pay. It is only applicable if there are no contraventions of the orders of the indemnifier/ promisor. However, it will be valid if the indemnity-holder acted as prudent as he would have acted in the absence of any contract of indemnity. Alternatively, the indemnifier/ promisor may  authorise him to bring or defend the suit;
  3. all sums paid for the compromise of any such suit if paid by following the instructions of the promisor.

However, the Indian Contract Act, 1872, is silent about the rights of the indemnifier in a contract of indemnity. On the authority of English law, it can be inferred that the rights of an indemnifier are similar to the rights of a surety under Section 141 of the Act.

Enforceability of indemnity bonds in India

An indemnity bond is only enforceable if there is a breach of contract under Section 73  and Section 74 of the Indian Contract Act, 1872. The breach creates a liability for the principal to provide compensation for the loss, and entitlement to compensation arises for the obligee. 

Provisions under the Indian Stamp Act, 1899

The definition of an indemnity bond is not also given under the Indian Stamp Act, 1899. The courts in India also use the definition under the Indian Contract Act, 1872, to interpret indemnity bonds under the Indian Stamp Duty Act, 1899. 

However, it provides the definition of a bond under Section 2(5). The term indemnity bond has been mentioned in Schedule 1, dealing with stamp duty payable on legal instruments under No. 34, though no definition is available. The procedure for how stamp duty is to be paid for an indemnity bond is given under Section 29. 

The following instruments are included under the bond:

  • According to Section 2(5)(a), a bond includes an instrument by which a person obliges himself the payment of money to another. The payment of money is based on the condition that the obligation will become void depending on if a certain act is performed or not;
  • By any instrument, a person obliges himself to pay money to another. It is attested by a witness, though not payable to order or bearer, under Section 2(5)(b);
  • An instrument containing the obligation of delivery of grain or other agricultural products to another, attested by a witness, under Section 2(5)(c).

Hence, a bond under this Act means an instrument whereby a person obliges the payment of money to another. The payment of money may be based on the principle of contingency. The instrument with the obligation to deliver agricultural products also constitutes a bond.

A promissory note can also be termed as a bond if there is an expressed promise that it is not payable to order or bearer under Section 2(5)(b) or any other clauses of the Section. In the case of Hanuman v. Fattu (1967), the plaintiff borrowed Rs 300/- from the defendant on a promissory note, attested by a witness. However, during the revision application filed by the defendant, the plaintiff contended that the document was a bond. The Rajasthan High Court rejected the plaintiff’s contention since there was an express promise to be payable to the order or the bearer.

Stamp duty payable for indemnity bond

An indemnity bond is also a type of bond under the provisions of the Indian Stamp Act, 1899. No. 34  of Schedule 1 of the Act mentions that the same duty payable for an indemnity bond of particular value is the same stamp duty as the security bond of the same value under No. 57. Again, No. 57 mentions that the stamp duty payable for any security bond not exceeding Rs. 1,000/- is the same duty as a bond of the same amount as mentioned in No. 15. For any other cases, it is Rs 5/-.

Therefore, the stamp duty payable for an indemnity bond exceeding is also the same as the stamp duty paid for Bond in No. 15. The stamp duty for an indemnity bond of a specific value is as follows:

Value of indemnity bondAmount of payable stamp duty
Less than or equal to Rs. 10Two annas (16 annas = 1 paise; 100 Paise = 1 Rupee)
More than Rs. 10 to Rs. 50Four annas 
More than Rs. 50 to Rs. 100 Eight annas
More than Rs. 100 to Rs. 200Re. 1/-
More than Rs. 200 to Rs. 300 One rupee eight annas
More than Rs. 300 to Rs. 400Rs. 2/-
More than Rs. 400 to Rs. 500 Two rupees eight annas
More than Rs. 500 to Rs. 600Rs. 3/-
More than Rs. 600 to Rs. 700 Three rupees eight annas
More than Rs. 700 to Rs. 800Rs. 4/-
More than Rs. 800 to Rs. 900 Four rupees eight annas
More than Rs. 900 and does not exceed Rs. 1,100Rs. 5/-

Thereafter, two rupees and eight annas are payable for every Rs. 500. The same applies to part thereof in excess of Rs. 1,000

Mentioned above is the list of stamp duties to be paid for a specific value of an indemnity bond, as stipulated by the Act. The list is not exhaustive since there are state amendments to the Schedule that ultimately decide the amount of payable stamp duty. All the state amendments to Schedule I can be accessed from here.

The stamp duty mentioned is not applicable in a contract of indemnity.

Who is liable to pay the stamp duty for the indemnity bond

Section 29 of the Act lays down that, in the absence of any specific agreement as to who will pay the expense of stamp duty for an indemnity bond. Under Section 29(a), the person who is drawing, making, or executing an indemnity bond is liable to pay the expense.

Purposes and types of indemnity bonds

Depending on the purpose for which it is to be used, an indemnity bond can be of the following types. The terms and conditions of an indemnity bond can be different based on the situation where it is necessary. Following are some of the purposes of using indemnity bonds:

  • Indemnity bonds for any property are usually executed during any acts of transaction or transfer of any property. For example, if the lease rights of any property are to be sold/ gifted or transferred, an indemnity bond will ensure that the original owners of the property face no loss or are compensated in the event of any damage or loss.
  • An employment indemnity bond is executed during an employee’s employment. It contains some specific terms, such as the mandatory service periods for which he must serve the employer and compensation to be paid in the event of failure.
  • Financial institutions such as banks usually ask for indemnity bonds to settle death claims from the legal heirs of the deceased for the final disbursement of a large amount of savings. The indemnity bond ensures that the bank or other financial organisation are indemnified if they face any issues from the parties.  It is usually required to be executed on a non-judicial stamp paper of a particular value and to be notarised by a notary or Magistrate.
  • While transferring the ownership of shares or debentures, an indemnity bond is required.
  • In the United Kingdom, medical indemnity is provided to patients for clinical negligence by healthcare professionals. In India, medical students need to follow the terms of an indemnity bond after the completion of their course. This is often subject to various speculations and controversies, which are discussed later in this article.
  • Under the Income Tax Act, 1961, the provision of indemnity is mentioned under Section 290. It is used for claiming a tax refund, waiver of income tax arrears demand, mismatching of TDS or outstanding tax demand. The legal heir of a deceased representative assessee also needs to submit an indemnity bond.
  • To stop payment and get a replacement on a lost cashier’s cheque from the bank, an indemnity bond is required for the mentioned amount on the cheque.
  • The Manual for Procurement of Goods, 2022 suggests taking an indemnity bond for items less than Rs. one lakh or for sending spares for repair to the original manufacturers.
  • Some other types of indemnity bonds include: declaration-cum-indemnity bonds, used for commercial purposes, undertaking-cum-indemnity bonds for any business transactions and tenders of large amounts, affidavit-cum-indemnity bonds for shipments cleared from customs etc.
  • Indemnity bonds used during commercial transactions and procedures are known as commercial indemnity bonds or simply as, commercial bonds. This includes auto dealer bonds, licence bonds, and mortgage broker bonds.

The purpose of indemnity bonds is to provide the parties with legal rights and protection from losses. An indemnity bond is an ethical step to ensure transparency in business and other activities.

Bond, agreement and contract vis-à-vis Indemnity bond, indemnity agreement and contract of indemnity 

There are some fundamental differences between bonds, agreements, and contracts. Agreements and contracts are subject to the provisions of the Indian Contract Act, 1872. Under Section 2(e), an agreement is a consideration formed with each and every set of promises from all the parties. An agreement becomes a contract when it is enforceable by law under Section 2(h). Furthermore, under Section 10 of the Act, all agreements made by the parties competent to contract with free consent for a lawful consideration and legal object are contracts. 

Though a bond is completely different from an agreement, it consists of all the characteristics of a valid contract. The basic difference between a bond and an agreement has been clearly defined by the Kerala High Court in the case of A.V. Ravi v. M.M. Abdulkhadar (2020). It states that a bond and an agreement can be distinguished by their differences in obligations. A document that simply acknowledges an existing obligation that can be enforced even without the document is an agreement. But if an obligation is created by the document itself and it expresses a promise to pay, it is a bond.

Indemnity bonds, indemnity agreements, and contracts of indemnity are special types of bonds, agreements, and contracts, respectively, with distinct differences. An indemnity agreement, also known as a Hold-Harmless Agreement, is commonly used in the United States of America. The purpose of an indemnity agreement is similar to that of an indemnity contract and indemnity bond, to provide indemnity. It is used by large businesses to protect themselves from external damages and by individuals to get protection for personal losses. The extent of indemnity can vary, commonly including limited, intermediate, and broad indemnity. 

Both contracts of indemnity and indemnity agreement have only two parties. Indemnifier and indemnified/ indemnity holder in a contract of indemnity and indemnitee and indemnitor in any indemnity agreement. However, an indemnity bond always consists of three parties: the principal (obligor), the surety, and the obligee. In this regard, an indemnity bond resembles a contract of guarantee under Section 126 of the Indian Contract Act, 1872. 

In Jindal Steel & Power Limited v. State Trading Corporation of India (2020), the petitioner asked to direct the respondent to release performance bank guarantees and not to encash. It was contended that the rights of the respondent could be safeguarded with an indemnity bond, in addition to the corporate guarantee already given, as interim protection measures under Section 9(1)(e) of the Arbitration and Conciliation (Amendment) Act, 2015.

Surety bond vs indemnity bond

A surety bond provides the principal with a guarantee that the terms and conditions of the contract will be followed properly. In case of any loss or failure, the surety bond protects the principal. Like the indemnity bond, a surety bond also has three parties. Surety bonds do not need large collaterals, but indemnity bonds often have high costs.

The definition of a surety bond is also not provided by the Indian Contract Act, 1872. However, Section 126 defines surety as the person giving the guarantee.

A surety bond is not an indemnity bond, but an indemnity bond can usually be said to be a subcategory of surety bonds. In specific situations, indemnity bonds are sufficient to give legal authorisation. In the case of Arvind Nanda v. State (2020), the petitioner filed a petition under Section 372 of the Indian Succession Act, 1925, for a succession certificate. He was the only child of his deceased parents. A trial court ordered him to file court fees and an indemnity bond with surety under Section 375. He submitted the required court fee and an indemnity bond but prayed for an exemption from furnishing a surety bond.

The Delhi High Court held that since the petitioner was the only legal heir and beneficiary, his request for exemption from the surety bond was granted. Submission of an indemnity bond in such a case was considered justified by the court.

Difference between an affidavit and an indemnity bond

The subject matter of an affidavit and an indemnity bond is completely different. An affidavit is a legal document containing a set of facts and statements, signed and notarized by a party. It is usually used in court to prove any contention. An affidavit is sworn to be true and accurate. The subject matter and procedures of filing an affidavit in court have been dealt with in detail in the Code of Civil Procedure, 1908. An indemnity bond, on the other hand, is used by individuals and organisations to protect themselves from uncertainty and loss. It is subjected to examination to prove its validity, applicability, and authenticity in court.

An affidavit is used in court as a document related to court proceedings for the legal battle. While in the same situation, an indemnity bond is merely used as a suit document or can be used to prove the legal obligation of each party at maximum. The indemnity bond can also be the subject matter of a suit, but it is never conclusive, unlike an affidavit. 

An affidavit may contain any type of statement depending on the nature of the suit, but an indemnity bond only contains statements regarding the situations, events of indemnity and the process of how indemnity will be paid if such a situation arises.

Judicial views regarding the indemnity bond

There are no specific judicial rulings involving the legality or the issue of an indemnity bond. However, some of the significant judicial pronouncements involving indemnity bonds in India are as follows:

Hindustan Sugar Mills Ltd. v. State of Uttar Pradesh (1971)

In this case, the amount of sales tax for Hindustan Sugar Mills Ltd. was assessed. A stay appeal was filed for the realisation of the sales tax. It was stayed on the condition of security of Rs 10,70,260/- which was subsequently executed with two persons as surety. A separate stamp duty was levied on the document. The board of Revenue declared two separate stamp duties were payable since it was both a surety bond and an indemnity bond.

The issue of the case was to decide whether the document was an indemnity bond or not and the payment of stamp duty thereafter.

The Allahabad High Court held that it is an indemnity bond since it was executed to save the government from loss due to non-payment of sales tax. Hence, the stamp duty payable for an indemnity bond should only be paid. 

Fakirasab v. Syedusab And Ors (2004)

In this case, the ancestral property of the defendant’s deceased father was acquired in return for compensation money. Both the plaintiff and defendant were relatives. An application for a temporary injunction was filed under Order 39 Rule 1 and 2 in the execution petition to restrain defendants 1 and 2 from withdrawing the money. According to the defendants, their father had been the individual tenant, and they applied for compensation. So, the plaintiff had no rights. 

The trial court, although rejecting the petitioner’s application for a temporary injunction, ordered the defendants to execute an indemnity bond with a bank guarantee for Rs. 10,00,000/- undertaking to withdraw the money. It was also held that since it was joint property, everyone was entitled to a 1/3rd share. The plaintiff filed an appeal.

The issue, in this case, was to decide whether the order asking them to execute an indemnity bond was arbitrary.

The Karnataka High Court held that since it was the property of an Imam, the provisions of a joint family as in Hindu Law would not arise. Also, the plaintiff is entitled to get 1/3rd of the total compensation. It was ruled that the trial court erred in the law and directed the trial court to dispose of the suit fast.

Sri B J Sagar v. The Karnataka State Khadi (2013)

It is a case where the petitioner, a former employee, and a pensioner made a request for retrospective promotion, which was granted. During his service, he was involved in some irregularities, and the respondents sought to recover Rs. 6,97,188/- from his pension based on the audit report for the year 2004. 

The issue, in this case, was whether the indemnity bond of 1985 could be enforced to collect the sum.

The Karnataka High Court held that even though the purpose of an indemnity bond was to recover any loss, there is a specific timeframe. Invoking the indemnity bond after 18 years is arbitrary and violative of Article 14 of the Constitution of India. The Court further directed the employer organisation to refix his monetary benefits of pension.

63 Moons Technologies Ltd. v. Deputy Director, Directorate of Enforcement, Mumbai (2019)

This is an appeal filed by the National Spot Exchange of India Ltd. (NSEL) against the order of the Enforcement Directorate (ED) on Provisional Attachment Orders (PAO). The owners of 63 Moons Technologies Ltd. (63 MTL), Jignesh Shah and his family, were barred from any property rights until the final order was given. They were asked to furnish an indemnity bond in the amount of Rs. 1095,27,17,055/-. Any properties of NSEL were not attached.

The Appellate Tribunal for the Prevention of Money Laundering observed that 63 MTL was granted an exemption under Section 27 of the Forward Contract Regulation Act (FCRA), 1952. The Court also ruled that the offence should be tried under the scheduled offence of the Prevention of Money Laundering Act, 2002. Since the chargesheets were not ready, the applicants did not have to furnish any indemnity bonds and were not restrained from any property rights.

The Joint Director, Directorate of Enforcement v. A. Raja & Ors (2020)

This is a plea filed after the acquittal of A Raja and other accused in the notorious 2G-spectrum scam for the release of the attached properties held by the Directorate of Enforcement (ED). 

There are lots of legal issues involved in the case. For the scope of this article, the issue of whether the attached properties can be released after furnishing indemnity bonds is discussed.

The counsels for the applicant submitted before the Court for permitting the applicants to execute an indemnity bond with the value of the attached property as surety.

The Delhi High Court held that, though there are plenty of instances where the attached properties were released after furnishing an indemnity bond, in this case, the properties were attached under Section 5(1) of the Prevention of Money Laundering Act, 2002. The applicants were also guilty under Section 3 of the said Act. The court subsequently disposed of the matter.

Drafting an indemnity bond

The style of drafting an indemnity bond depends on the specific situation, including the subject matter that is to be covered, how much indemnity is to be provided, etc. Needless to say, an indemnity clause is mandatory for an indemnity bond. 

The obligee or third-party financial institutions, such as banks or insurance companies, usually draft the indemnity bond after deciding all the terms and conditions. The principal and surety must negotiate the terms for their own benefit. The main purpose of drafting an indemnity bond is to have a legal instrument which will save a party in case of another’s failure, refusal, or delinquency.

An indemnity bond should also have the promise of ensuring compensation. The events or reasons for which the compensation will be provided should also be mentioned. Both the signatures of the principal and the surety should be on the indemnity bond. 

Must-have clauses

The indemnity bond must have the full names and permanent addresses of the principal, surety, and obligee. The cause and type of indemnity and consideration amount should also be mentioned, among others. The date of the execution of the indemnity bond is another important aspect that should be mentioned. The following are the must-have clauses in any indemnity bond:

  • The day on which the indemnity bond is executed;
  • Names and addresses of all the parties; 
  • Purpose(s) and consideration(s) of the indemnity bond;
  • Scope, limitation and the time period for which the indemnity bond is valid;
  • Clause of indemnification including the event(s) on whose occurrence is to be indemnified and exceptions, if any;
  • Procedures for how to enforce the indemnity bond in case of damage, whether any notice of claim is required or not;
  • Clauses on consent and authorisation;
  • Clauses regarding settlement and enforcement of the indemnity bond.

Apart from the abovementioned clause, any other clauses that the parties think are applicable may be added to an indemnity bond. However, it must be remembered that the drafting of an indemnity bond should always be precise and to the point. It is advisable to avoid adding unnecessary clauses to make it wordy.

The legal position of India on the use of indemnity bond

In absence of any composite legal statutes regarding the execution of an indemnity bond, the use of an indemnity bond is sometimes subject to controversy. Some of the instances are discussed hereunder.

Indemnity bond for medical students

Medical students in certain Indian states must provide an indemnity bond stating that they will provide mandatory government service in rural areas for a specified period immediately following the completion of their respective undergraduate or postgraduate medical course from any government institution. In case the person fails to abide by the terms, he/ she is supposed to pay the entire bond amount to the state government.

Health and related facilities are state subjects under the State List of the Seventh Schedule of the Constitution of India. Hence, the matters related to medical indemnity bonds are also decided by the respective states, and the policy is not uniform at all. The amount payable also varies across various states, ranging from  Rs 5 lakh to Rs 1 crore after graduation and up to Rs 2.5 crores for post-graduation and super-specialities. The central government is apparently concerned with the non-uniformity and is trying to implement a uniform bond policy.

Legally speaking, all the parties do not get a fair chance to negotiate the terms and conditions of the bond. All the terms are dictated by the obligee, including the amount, and the parties are just expected to comply with them. However, the purpose of an indemnity bond for a definite period is to provide adequate medical assistance in rural areas, and the candidates are paid stipends during the bond period.

In the case of Dr. Rahul Bansal and Ors v. State of West Bengal (2018), the writ petitioner was a student of post-graduation in psychiatry at the Institute of Post Graduate Medical Education and Research Centre, Kolkata, and completed the said course successfully. He submitted an indemnity bond to work in any government hospital in West Bengal for two years continuously; otherwise, he will pay an amount of Rs. ten lakhs, i.e., the amount payable for indemnity in West Bengal. The indemnity bond also contained the provision of keeping the petitioner’s documents in the custody of the department of that said institution. These documents were supposed to be returned after the completion of the bond period or on payment. He requested multiple times the return of his document upon payment of the bond money and wanted to stop continuing his services, but he received no response. Thereafter, he filed a writ petition.

The main contentions, in this case, were the facts that he was a government servant and whether such kinds of acts violate the underlying purpose of indemnity bonds. He was also presented to the Court by the respondent, who said that allowing him to discontinue his service would open a floodgate where people with financial strength would follow his path, avoiding the mandatory serving of patients in hospitals.

The court held that he was not a government servant but a contractual employee for two years. Furthermore, the rights to equality under Article 16 were violated. The Court also dismissed the appeal filed by the Government of West Bengal on the grounds of frivolity and lack of merit. Moreover, the Court held that he is entitled to get back all the submitted documents and a ‘no-objection’ certificate. 

While the intention of such a bond is to eradicate the prevalent disparities between urban and rural healthcare systems in India, some medical professionals have different opinions. According to their opinion, the bond system is equivalent to bonded labour and does not ultimately provide successful results in healthcare, mostly due to a lack of proper infrastructure. Some also think that certain perspectives regarding the bond need to be changed.

Indemnity bond for approving new drugs in India

When bringing new drugs or vaccines to market, drug companies often ask for an indemnity bond. The purpose of requesting this indemnity bond is to provide them with protection if any adverse effects from the drug occur in the future.

The processes of approval of new medicinal drugs in India are usually governed by the Drugs and Cosmetic Act, 1940 and the Drugs and Cosmetics rules, 1945. However, there is no provision for individual indemnity bonds for the approval of any new drug or vaccine in India. Only the government of India can execute an indemnity bond to the manufacturer in exceptional circumstances; more commonly, the provision of indemnity may be mentioned in a clause or set of clauses in the contract signed by the manufacturer and the government. Apparently, there is no precedent for giving indemnity to any drug manufacturers.

The absence of a provision for an indemnity bond created huge turmoil and legal difficulties during the approval of the COVID-19 vaccine in India. All the foreign vaccine manufacturers, including Pfizer, Moderna, and even Serum Institute of India, the manufacturer of the vaccine Covishield, widely used for mass vaccination during the COVID-19 pandemic, asked the government to provide them with an indemnity bond against all vaccine-related lawsuits and other frivolous claims.

Even though the efforts of India need to be highly appreciated, creating a historic achievement for successfully running the largest mass vaccination drive against COVID-19, the absence of indemnity is said to be one of the reasons for delaying the arrival of vaccines, especially from American manufacturers.

Legal validity of employment indemnity bond

There are some controversies regarding the mandatory signing of an indemnity bond for employment in some industries. Such indemnity bonds prevent an employee from leaving the job before a specific time period ends. Such a clause may be present in the employment contract instead of executing a separate indemnity bond. This is often said to violate Article 19(1)(g) of the Constitution of India. Furthermore, according to Section 27 of the Indian Contract Act, 1872 any agreement restricting one from practising his profession or trade is void.

In the case of Superintendence Company of India  v. Krishan Murgai (1980), the Supreme Court was of the opinion that such a restriction is not totally against the law and is subject to a particular situation. In the case of  Sant Langowal Institute of Engineering and Technology and Another v. Suresh Chandra Verma  (2013), the employee, a lecturer in a government college, took a paid three-year study leave to pursue his Ph.D. degree at IIT, Kanpur; however, he failed to produce his Ph.D. certificate. The Supreme Court said that the educational institution was entitled to be awarded indemnity since the employee himself caused them damages.

The answer to the question of the legality of employment indemnity bonds is not conclusive. It is mostly decided based on the facts and situations of the individual scenarios. However, the terms of the indemnity bond must be considerate and not punishing to the employee. On the other hand, the employee is also expected to maintain mutual trust and fidelity with the employer.

Conclusion

Despite the fact that indemnity bonds are widely used, the term has yet to find its place in Indian legislation and the judiciary. Surprisingly, an exhaustive definition of an indemnity bond is not even mentioned in any of the existing Indian statutes. It is a widely used legal instrument in business, finance, and other organisations where the likelihood of future uncertain events is high. It does not merely reimburse the losses but also protects from any uncertain loss. Hence, the importance of an indemnity bond can never be undermined.

Frequently asked questions (FAQs) on the indemnity bond

Who can issue an indemnity bond?

An indemnity bond is usually executed between the principal and surety, with a large business, the government, or any financial institution acting as obligee. The obligee has the right to draft and execute an indemnity bond, jointly with the signatures of the principal and surety.

Can relatives act as surety in an indemnity bond?

Anybody can act as a surety, provided they are ready to take on the responsibility of indemnification. Some indemnity bonds require the signature of one or more witnesses. In that case, the surety and the witness cannot be the same person.

Is it necessary to register indemnity bonds?

In the case of M/s Synapse Communications Pvt. Ltd. v. Abhishek Mittal (2016), the Delhi District Court held that an indemnity bond should have basic sanctity in the eyes of the law. 

The indemnity bond in the mentioned case was neither registered nor on stamp paper. The defendant was an employee of the organisation. He was asked to sign some blank pages after joining. Later, those signed blank pages were misrepresented when the defendant left the job. It was also held that an indemnity bond without specific conditions is barred under Section 23 of the Indian Contract Act, 1872.

How many witnesses are necessary for an indemnity bond?

A witness is not required for all types of indemnity bonds. Some types of indemnity bonds do not require any witnesses at all. But two witnesses are mandatory while executing an indemnity bond for the transmission of share certificates and debentures.

What is the value of the stamp duty of an indemnity bond in India?

The stamp duty for an indemnity bond differs in each state and the Union Territories of India, having their own Acts on stamp duties. The state and UT Acts are mostly amendments to the Indian Stamp Act, 1899, but the states individually determine the value of stamp duty to be paid.

Should an indemnity bond be notarized?

The purpose of notarization is to provide legal validity to the document and the identity of the parties. An indemnity bond is not mandatorily notarised. However, financial institutions such as banks, insurance companies, and educational institutions may require a notarized indemnity bond. Sometimes, the value of the stamp paper for the indemnity bond is also specified.

References

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Section 34 CPC

By
Rachit Garg
-
0

This article has been written by Sarthak Mittal, a student at the Vivekananda Institute of Professional Studies of Indraprastha University, Delhi. It explains how courts can charge interest in civil cases under Section 34 of the Code of Civil Procedure, 1908.  

it has been published by Rachit Garg

Introduction 

Interest is like compensation given to the decree-holder for being deprived of money that is due. The interest can be claimed from the moment such money was due to the decree-holder until the moment it is paid to him. However, it is pertinent to understand various connotations relating to the right to claim interest, including how the rate of interest will be adjudged, whether it is a non-derogatory right of the decree-holder, and whether interest for any period will be excluded or not. Section 34 of the Code of Civil Procedure, 1908, is the provision that generally embodies all the rules relating to the award of interest by the court concerning decrees that are passed for the payment of money. 

What is Interest 

In the case of State Bank of India v. Vijay Lakshmi Thakral (2011), the Delhi High Court expounded the definition of the word “interest” wherein it referred to the judgement by Lord Wright in the case of Riches v. Westminster Bank Ltd. (1947), wherein he defined “interest” as the payment that is to be given by the creditor when he does not have the money on the due date. It can be regarded as the profit that the debtor might have had if he had gotten the money on the due date; conversely, he suffers the loss due to creditors and is compensated by charging interest. If it is observed carefully, then the court here recognizes the concept of the “Time Value of Money”, which provides that the money in our hands today is worth less than the same amount of money in the future. This happens due to inflation which reduces the buying capacity of money over some time and due to the power of money to be invested to earn profits. In all cases, if anyone is unreasonably kept devoid of the money he is entitled to should be compensated with interest, as with each passing day the purchasing power of money decreases and he loses the opportunity to invest and earn profits from such money. 

In Black Law Dictionary (4th Edition), the word “interest” with respect to money has been defined in consonance with the case of Peabody v. Beach (1856) as compensation allowed by law or fixed by parties for use or forbearance or detention of money, whereas, the interest fixed by the agreement of the parties has been classified as conventional interest and the interest provided by law in the absence of an explicit term stipulating the interest as legal interest, which can be further classified as “simple interest,” wherein a specific percentage of the principal sum is provided as interest, and “compound interest,” wherein the interest is calculated for a specific period and then added to the principal sum, and later that sum becomes the new principal. 

The term “interest” in the Usurious Loans Act, 1918, under Section 2(1), is defined to mean and include the return made over and above what was actually lent, this excess can be charged specifically or can be sought to be recovered by way of interest or otherwise in any other manner.  

Section 34 CPC : an overview 

When a court passes a decree, the court may grant interest on the amount to which the decree-holder is found to be entitled, and Section 34 provides for relevant provisions relating to the granting of such interest. The Section clarifies the sum on which the interest is granted, which is termed the “principal sum adjudged.” It includes the principal sum of money to which the decree-holder is entitled, along with the interest charged on such a sum for the period preceding the institution of the suit. As a result, in general, it is the entire amount claimed by the litigant in court to which he becomes entitled prior to the filing of the suit.

Further, Subsection (1) of Section 34 can be divided into two parts as it provides for interest being granted on two kinds of periods which are as follows:- 

  1. From the date of suit to the date of the decree: The interest on the principal sum adjudged is from the date of suit to the date of the decree. The interest rate should be at the discretion of the court and there is no upper limit to such kind of interest. 
  2. From the date of the decree to the date of payment of money to the decree-holder: Herein, the court can grant interest on the principal sum adjudged at its discretion. However, an upper limit on such interest rate has been cast by the Section which is six percent per annum; such kind of interest has been referred to as “further interest”. Proviso to this subsection provides that in case of commercial transactions the further interest can exceed the rate of six percent per annum and the upper limit in such cases will be the contractual rate of interest. The proviso further explains, that where there is no contractual rate of interest provided the upper limit will be the rate at which money is lent or advanced by the nationalised banks in relation to the commercial transaction. 

The first explanation to the proviso provides that the meaning of the term “nationalised banks” is to be construed as per the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, wherein the Act has classified a bank as a “corresponding new bank.” The term “corresponding new bank” has been defined under Section 2(d) of the Act, wherein this is the list of body corporates listed as banks, and the list of such body corporates has been provided under Column No. 2 of the first schedule of the Act. 

The second explanation to the proviso provides that the term “commercial transaction” will refer to those transactions that are connected with the industry, trade, or business of the party who has incurred the liability. It is pertinent to note that the party who has incurred the liability will be the judgement debtor. 

Subsection (2) of Section 34 provides that where the court has passed the decree but the decree is silent on granting further interest, it should be deemed that the court has refused such interest. The following provision also bars a subsequent suit for claiming such an interest. 

Scope of Section 34 CPC

In the case of Bhagwant Genuji v. Gangabisan Ramgopal (1940), it was held that Section 34 applies only in cases where the decree is for payment of money, and the fact that the suit included claims of unliquidated damages or liquidated damages is inconsequential to the application of this Section. Further, in the case of Dwarkanath v. Debendra (1906), it was held that no analogy can be drawn between mesne profits and Section 34 as the former aims to remedy the situation of loss caused by wrongful possession and the latter aims to remedy the unjust enrichment of the judgement debtor by prolonging the suit.of

It is pertinent to note that Section 34 does not apply in cases where the decree is for enforcement of a mortgage or charge as the same is governed by Order 34 Rule 11 of the Code. However, a decree passed under Order 34 Rule 6 that relates to an amount payable when the proceeds from the sale of mortgage  property are found to be insufficient to cover the debt given in lieu of a mortgage is governed by Section 34 as it is a personal decree. 

Amendment to Section 34 CPC

Amendment Act, 1956

Section 34 was amended by the Amendment Act of 1956, wherein certain words were substituted to clarify the concept of “further interest” and the bar of 6 percent per annum on such interest was added. The following amendment also substituted the words “aggregate sum” in Sub-section (2) with the words “principal sum.” 

Amendment Act, 1976

Section 34 was later amended by the Amendment Act of 1976, which provided the proviso and two explanations that provided clarity in cases where further interest was to be granted in commercial transactions. Section 97(e) of the Amendment Act provides that the amendment in Section 34 with respect to commercial transactions will be of a prospective nature.

What is an award of interest 

There can be three types of interests that can be observed under Section 34 which are as follows:- 

  1. The interest levied prior to the institution of the suit, that is generally stipulated by an agreement between the parties. 
  2. The additional interest levied by the court for the time taken by the court for adjudication of the suit, which is the period from the date of institution of the suit to the date of the decree. 
  3. Further interest is also awarded by the court for the period from the date of the court’s decree to the date of actual payment. 

It is necessary to understand all three types of interests and the discretion of the court for granting these interests, which are as follows: 

The interest levied before the institution of a suit 

Such an interest can either be stipulated or unstipulated. It is to be kept in mind that when this kind of interest is stipulated, then the court, as per the judgement in the case of State of India v. B. Gupta (Tea) Ltd. (1985), has less discretion to reduce or increase such interest. Further, as a general rule, where no such interest rate is stipulated, the plaintiff has no right to levy interest except in cases where the interest is levied as per any mercantile usage or where there is any statutory right to interest. These given exceptions were expounded in the judgements in the cases of BN Railway Co. Ltd. v. Ruttanji (1937) and Union of India v. Watkins Mayor and Co. (1966), respectively. Interest Act, 1978, can be applied to claim interest for all those periods to which Section 34 does not apply; the same proposition of law has been upheld in the case of CT Xavier v. PV Joseph (1995). 

The interest levied for the time taken for adjudication of the suit 

The rate of interest for this time period is a matter of discretion for the court, and this discretion cannot even be curbed by a rate of interest stipulated in the contract; the same was held in the case of Mangiram v. Dhowat Roy (1886). Further, in the case of Union of India v. Muffakam Jah (1995), it was held that the court should strike a balance between the competing equities and can also take judicial notice of facts like inflation while charging interest pendente lite. This being the rule, it is pertinent to note that if the contractual rate of interest provided is equitable, then the court should have due regard for the rate of interest so provided. It is justified to provide interest for this period of time due to a principal also embodied in the legal maxim “Actus Curiae Neminem Gravabit,” which means that an act of court should not prejudice any man; thereby, it is important to understand that this is the time period that is taken by the court to decide the case and there is no fault of the decree-holder. Then, the interest is awarded to the decree-holder by the court. 

In the case of Satish Solvent Extractions Pvt. Ltd. v. New India Assurance Co. Ltd. (1996), it was held that, as a general rule, interest is given to the decree-holder for this period of time; however, if there are cogent reasons to deprive the plaintiff of such interest pendente lite, then the court may not grant any interest for the given period. Further, in the case of Kalyanpur Cold Storage v. Sohanlal Bajpai (1990), it was held that the court was justified in awarding minimal interest, which was 3 percent per annum for this period, since for the period preceding the institution of the suit, a higher rate of interest was being charged. This becomes an ideal example to show how the court can use its discretion to fix the rate of interest for interest pendente lite. 

The interest levied from the date of the decree to the date of realisation

This interest is levied to make the decree efficacious, as it acts as a deterrent for the judgement debtor to prevent him from delaying the execution of the decree. In the case of Gordhandas Madhavji and Ors. v. Valmji Khetsi (1966), it was held that where the court, in accordance with Order 20, Rule 11, has postponed the payment of money or has made the money payable in instalments, then in such a case Section 34 will not be applicable and a higher rate of interest can be charged by the court. There is an embargo that the statute provides on the granting of such interest, which is that it cannot be above six percent per annum as a general rule. As an exception, in cases where there is a contract that stipulates the rate of interest for this time period to be more than six percent, the rate of interest stipulated in the contract will be the maximum interest that the court can levy. It is pertinent to note that if the decree passed by the court is silent on such a rate of interest, then it shall be deemed that the court has refused interest for this time period.  

Proviso to Subsection 1 of Section 34 CPC

The provision states that if interest is charged for the time period between the making of the decree and payment under the decree, the rate of interest may exceed 6% per annum if the payment is for a liability arising from a commercial transaction; however, the rate of interest should never exceed the rate of interest stipulated by the contract’s parties. In the case of State Bank of Travancore v. K. Vinayachandran (1989), the Court held that all the statutory notifications by legislature aimed at invoking the proviso under Section 34 should be taken judicial notice under Section 57 of the Indian Evidence Act, 1872. Where the court fails to take judicial notice of any such fact, it becomes a patent defect, and a review is maintainable on this ground. In the same case, it was held that, as a general rule, such grants are granted only at a contractual rate, except where there are sufficient reasons for the court to make an exception. However, it is pertinent to note that such exceptions are to be made in rare cases only, and the court should exercise its wide powers granted under Section 34 with great circumspection. The same legal proposition was reiterated in the case of Syndicate Bank v. WB Cements Ltd. (1989), where the Court also substantiated its findings by reasoning that, except in exceptional circumstances, a borrower cannot be given the benefit of a reduced rate of interest on the pretext that the bank has the option to take legal recourse if the borrower fails to pay again after the making of a decree. 

The proviso has an interesting connotation in that where there is no contractual rate of interest stipulated between the parties and the transaction is still commercial, the court can move beyond the upper limit of 6 percent per annum by invoking the proviso under Section 34; however, in such a case, the upper limit will be according to Section 2(b) of the Interest Act, 1978, which defines “current rate of interest” as the different rate of interest. The burden of proof in such cases will lie on the claimant to prove the current rate of interest being charged by nationalised banks. 

Judicial pronouncements related to Section 34 CPC

Interest pendente lite

A division bench of the Supreme Court clarified in the recent case of Small Industries Development Bank of India v. M/s Sibco Investments Pvt. Ltd. (2022) that interest pendente lite is a discretionary matter of court that the court decides based on equitable considerations. The Supreme Court in the following case denied interest pendente lite as the claim was not pressed by the respondent in the trial court and there was also no mention of such a claim in the appeal memo, which in toto manifested the lack of seriousness of the respondent regarding such a claim. 

The interest levied by arbitrators

In the case of Alimenta S.A. v. N.A.C.M.F. of India (2018), two prominent issues were raised before the Delhi High Court. The first issue is that where interest is charged for the period between the making of the award and payment of the money, the interest charged will only be on the principal sum and not on the composite sum, which includes the principal sum adjudged and interest pendente lite charged by a court. The second issue is that since the post-award interest charged by the arbitrators is more than 11 percent, Section 34 of the CPC cannot be applicable, as only up to 6 percent of interest can be charged under the section. Concerning the first issue, the Division Bench of the Hon’ble Court held that interest can be charged on the composite sum and that there is no bar to granting such interest under Section 3(3) of the Interest Act, 1978, or any provision of the Arbitration Act, 1940. The Court further clarified that if the post-award interest is not granted by the executing court on the composite sum, then the same will amount to the executing court going behind the decree. Regarding the second issue, it was held that Section 34 of the CPC does provide for an upper limit of 6 percent, but the provision can still operate as it grants powers to the court to grant post-award interest. 

The arbitrator’s powers to award interest pendente lite were always seen with a sceptical lens, as it was argued that statutes grant civil courts powers to provide interest for the time taken by the court to adjudicate the case to do complete justice. Still, the post of an arbitrator who is a creature of an agreement should not be allowed to charge such interest where the agreement does not stipulate it explicitly. In the case of Board of Trustees for The Port of Calcutta v. Engineers De Space Age (1996), the Supreme Court’s constitutional bench enunciated the reasoning behind the grant of interest pendente lite by civil courts under Section 34 and clarified why arbitrators should have the power to grant such interest. The court further clarified that where arbitrators are an alternative forum for dispute resolution chosen by the parties and where the powers to grant such interest are not extended to the arbitrators, then the parties will file applications in the civil courts for grant of such interest, which will lead to the grant of such interest. The Court went ahead and clarified that such interest is not a matter of substantive law, like interest charged on the principal sum prior to the reference to the dispute resolution forum; thereby, these powers can be inferred to facilitate the authorities in doing complete justice. The Court also held that the arbitrator should duly consider all the principles of Section 34 before granting such an interest. 

Suit by banks 

In cases where the suit has been filed by the bank, the court has some additional considerations that are to be kept in mind related to the workings of the bank. The same proposition of law was manifested by the Kerala High Court in the case of Catholic Syrian Bank Ltd. v. NV Varkey (1987), where the Court, while awarding interest at the rate of 12 percent per annum in a money suit, noted that banking businesses are of such a peculiar model that they can run only when the recoveries of advances are effected. Further, in the case of Vijaya Bank v. Art. Trend Export (1992), the Calcutta High Court held that where, in a contract between banks and an entity, a rate of interest has been stipulated for the period prior to the institution of the suit then the courts have no discretion to ignore the same as per Section 21A of the Banking Regulation Act, 1949. Furthermore, in the case of Indian Bank v. Textile Inland Agencies (1992) Calcutta High Court held that wherein a person has executed a promissory note in favour of the bank and the bank sues on basis of such promissory note, the rate of interest then as per RBI Circulars and the purpose of the section the interest rate stipulated in the pronote should be the interest rate charged as interest pendente lite unless there are vehemently compelling reasons to disregard the same. 

Conclusion 

Interest is granted by the court to remedy the loss caused to the decree-holder by being deprived of money he is legally entitled to by the judgement debtor. It is a medium of compensation used to maintain the status quo by restoring the parties to their original positions. Section 34 of the Code has to be construed in accordance with the provisions of equity and reasonableness, as it solely aims to provide the decree-holder with the actual benefit which he could have had from the money which the judgement debtor is being compelled to pay. The Section does not focus on the recovery of money but on the interest that is to be levied on the sum recovered during pre-lite, pendente lite, and post-lite. The provision is of an exhaustive nature relating to the levying of interest in cases of personal decrees for payment of money. 

Frequently Asked Questions (FAQs) 

Can the court levy compound interest under Section 34 CPC?

As held in the case of Kaluram v. Chimniram (1934), the court can levy compound interest from the date of institution of the suit wherein the compound interest was being charged during the ordinary course of dealings between the parties. However, in such cases, the burden of proof will lie on the decree holder to prove that the charging of compound interest is justifiable.  

Does Section 34 CPC apply in the cases of negotiable instruments?

It is pertinent to note that cases related to negotiable instruments are dealt with in accordance with the Negotiable Instrument Act, 1881, where Section 79 of the Act provides for the levying of interest in matters related to negotiable instruments. In the case of United Bank of India v. P Krishnaiah (1989), it was held that Section 34 of the Code of Civil Procedure, 1908, would prevail even over the Negotiable Instrument Act, 1881. The rationale is that the Code came into force after the Act, and the Code was cognizant of the existence of provisions like Section 79, but the legislature consciously omitted to insert any exceptions in Section 34, which shows legislative intent to make Section 34 prevail over Section 79. 

References 

  1. The Code of Civil Procedure (Vols.1, 19th edition), 2017 by Sir Dinshaw Fardunji Mulla 
  2. The Code of Civil Procedure (Vols.1), 2019 by M P Jain
  3. https://www.lawinsider.in/columns/interest-code-of-civil-procedure-1908
  4. https://articlesonlaw.in/i-n-t-e-r-e-s-tsection-34-of-cpcinterest-in-civil-suit/
  5. https://www.tclindia.in/section-34-of-cpc-empowers-the-court-to-grant-post-award-interest-even-where-the-statute-does-not-provide-for-payment-of-interest-on-awarded-sum/ 

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Section 161 CrPC

By
Sneha Mahawar
-
0

This article is written by Tushar Singh Samota, a law student from the University Five Year Law College, Rajasthan University. The article discusses the concept of the examination of a witness by police, which is mentioned in Section 161 of the CrPC. The discussion will be supported by various judicial pronouncements.

This article has been published by Sneha Mahawar.​​ 

Introduction

The examination of witnesses by police under the provisions of the Code of Criminal Procedure, 1973 (CrPC) is an important stage in settling cases and punishing criminals. During a witness examination, the police take the person’s statement to proceed with the investigation under the provisions of the Criminal Procedure Code, 1973. However, the word ‘statement’ is not defined under the CrPC. According to the Encyclopedia, a statement is defined as a proclamation or explicit expression of anything in speaking or writing. 

Section 161 of the CrPC deals with the examination of witnesses by the police, and this provision allows the police or gives them authority to interrogate the witnesses whenever they need to record the statements of the witnesses. The major goal of this Section is to present the evidence before the court throughout the trial. This information is also valuable to the court in formulating charges against the perpetrator.

Witness

Before we go into the details of the examination of a witness, let us first define the term ‘witness’. A witness is a person who sees an event happening, especially a crime or an accident, or who testifies under oath in a legal trial. The term ‘witness’ itself reveals the meaning: any individual who observed the crime and has firsthand knowledge of any occurrence in a criminal case, which assists the lawyer in testifying the evidence as well as the courts in delivering judgments. During a criminal trial, a summons is frequently issued to the witness to appear in court and make her statement. Witnesses are also grouped into several kinds based on their function in providing information about an event that occurred in a criminal case. As a result, the law allows for a total of three types of witnesses.

Eyewitness

An eyewitness is a witness who witnessed the alleged crime. This witness is frequently seen as untrustworthy in comparison to circumstantial evidence, which is more authentic and dependable. However, if numerous persons observed the incident with their eyes, lawyers will perceive the recurrence of the same event by different witnesses.

Expert witness

An expert witness is a person who has excellent knowledge and is knowledgeable in a certain subject, which aids in witnessing the evidence gathered. These individuals are regarded as superior to regular witnesses since they are specialised in a specific field. These individuals include forensic specialists, ballistic experts, psychiatrists, and others.

Character witness

A character witness is a witness who, under oath, affirms the excellent character or reputation of a person in the society in which he lives, and these sorts of witnesses are primarily there to recollect and assert that person’s positive characteristics and ethics in front of the court. These witnesses are only summoned and recorded when the defendant’s reputation and characteristics are brought into question.

But one aspect is missing, i.e., trustworthiness in all sorts of witnesses. There is a lot of disagreement about the trustworthiness of witnesses in criminal cases. Many times, witnesses make misleading statements, resulting in incorrect judgments. This is a major issue not only in India but also in other countries.

Statements recorded under Section 161 CrPC

Interrogation is a critical component of the inquiry. The authority to conduct an inquiry is fundamentally one of the first stages toward imparting justice, and such power becomes increasingly vital when the offence is serious in such circumstances. Oral statements supplied by witnesses, if properly documented while adhering to due process of law, might go a long way toward assisting prosecutions in obtaining convictions.

On the other hand, failure to follow established stages and procedures can be damaging to the victim/informant since the evidential value of the statement is decreased, which in turn will make the defence counsel’s case stronger. When an investigation begins, one of the first things an investigating officer must do is contact the persons who appear to be familiar with the facts and circumstances of the case, as provided under Section 160 of the CrPC. According to Section 160(1), an investigative officer may order any individual to appear before him if the following circumstances are met:

  1. The order demanding the person’s presence must be in writing.
  2. The individual looks to be familiar with the facts and circumstances of the case; and
  3. The summons issued under Section 160 of the Criminal Procedure Code should contain the name, rank, and address of the Investigating Officer and the particulars of the First Information Report (FIR) and the offence.
  4. The individual summoned for investigation is within the jurisdiction of the investigating police officer’s police station or any neighboring police station.
  5. In line with the rules, the police officer must also pay this person’s reasonable expenses when they appear at a site other than their house.

But this Section’s proviso states that men under the age of 15 and females shall not be required to visit the police station, and the examination and recording of their statements may take place at their house. This provision is designed to provide specific protection to children and women from the potential humiliations and inconveniences caused by the abuse of police authority under Section 160(1).

On a simple reading of this Section, it is evident that this Section gives the police officer broad authority to record statements from anybody familiar with the facts and circumstances of the matter under investigation. Such authority will be rendered ineffective unless it is backed up by some severe measures. This gap has been filled by making it a legal duty for the person summoned to comply with such a notification unless they are exempted from it by the Section’s proviso. Failure to comply with such a public servant’s command is punishable by one-month imprisonment, a fine, or both under Section 174 of the Indian Penal Code, 1860 (IPC).

Once the attendance notice has been delivered and the witness has arrived at the police station, the investigating officer can conduct an oral examination under Section 161. According to this Section, the witness is obligated to answer these questions truthfully. Refusing to answer, willful omission, and providing false information are punishable under Sections 179, 202, and 203 of the IPC.

Examination of witnesses under this Section

The goal of Section 161 is to acquire evidence that can subsequently be used in court. In the event of a trial before a court of the session or a warrant-case trial, a charge may be filed against the accused based on the statement recorded by the police under Section 161. This Section gives the police the authority to question witnesses during an investigation.

Section 161(1) allows for oral examination of anybody who is supposed to be familiar with the facts and circumstances of the case. A police officer examines the person in this segment. Section 161 (1) uses the phrase ‘any person’ to encompass a person who may be accused of the offence as well as suspected. In the case of Pakala Narayan Swami v. Emperor (1939), it was determined that the term ‘persons’ encompassed any person who may be accused subsequently.

Section 161(2) binds a person who is interrogated by police during an inquiry to answer all questions honestly, but it also shields the person from answering questions that would subsequently lead to the person’s incrimination. It was held in the case of Nandidni Satpathy v. P. L. Dani (1978) that we cannot force or compel a person accused of an infraction to submit or make a statement that is against himself. The individual is free to keep silent. However, it is critical to safeguard such a person since a person is presumed innocent unless proven guilty.

This subsection provides a shield against self-incrimination, which is recognised as a fundamental right under Article 20(3) of the Indian Constitution. According to the aforementioned Article, no person accused of a crime can be forced to testify against himself. When presented with damning questions, the accused may remain silent or refuse to answer.

Section 161(3) requires that witness testimony under Section 161 be recorded in the first person and not in an indirect form of speech. An oath or affirmation is not needed during a witness examination under this Section. It also forbids the preparation of a synopsis of a statement recorded and provides that the statements made under this subsection may be captured using audio-video technological methods. Apart from this, the statement given by a woman must be documented by a woman police officer or any female officer. 

In Sewaki v. State of Himachal Pradesh (1981), it was determined that statements made by investigating officers under Section 161 are neither recorded under oath nor are they subject to cross-examination as required by Section 145 of the Evidence Act, 1872. As a result, according to the law of evidence, these statements are not substantive pieces of evidence because they do not provide proof of the facts stated in them.

Investigation of Crime by the Police

There are several legal processes before the start of a court proceeding, one of them being an investigation by the police. In H.N. Rishbud and Inder Singh v. State of Delhi (1954), the honourable Supreme Court of India decided that a criminal police inquiry consisted of the following steps:

  1. Going to the crime scene.
  2. Investigation of the case’s facts.
  3. Detection and arrest of the alleged perpetrator.
  4. Gathering of evidence.
  5. Determining whether it is necessary to present the accused before a Magistrate for trial and if so, taking all required procedures by compiling a charge sheet by Section 173, CrPC, 1973.

The evidentiary value of police statements

Essentially, the witness signature on a statement is not necessary under Section 161 of the CrPC because this practice is prohibited under Section 162 of the CrPC. A violation of this Section may reduce the credibility of witnesses’ evidence when they appear in court. It is, however, not the law that anytime a person’s signature is acquired in a statement recorded during an inquiry, the statement shall be rejected. However, in such a case, the court must exercise caution in evaluating the evidence that the witness who made the forged statement may provide in court.

In the ruling of State of Rajasthan v. Teja Ram and others (1999), the Apex Court noted that Section 162 of the Criminal Procedure Code does not stipulate that a witness’s testimony in court is rendered inadmissible. Further, if it is discovered that the witness signed the statement of witnesses recorded during the investigation at the officer’s request, it simply cautions the court and may need a thorough examination of the facts.

Delay in the recording of statements

Witness statements must be acquired as quickly as possible; nevertheless, a delay of a few hours in recording the statements does not constitute a major infirmity. There must not be room for suspicion that the delay was intentional on the part of the police while, allowing him to put up a case of his own choosing. In the case of the State of NCT of Delhi v. Ravikant Sharma (2007), the court stated that any direction to give the ‘gist’ of such statements was unsustainable since such statements of witnesses recorded during the inquiry did not contain the interpretation of the Investigation Officer.

The investigating officer cannot compel the accused to answer all questions if the answers requested have a chance of exposing him to guilt in another charge either actual or imminent, even though the inquiry is not related to that accused. When there is a discrepancy between a statement provided to the police and evidence presented in court, the former statement may be used to contradict the latter, as decided in the case of P. Ailamma v. T. Zedson (1988). In an omission case, i.e., a skip or slip that signifies exclusion or leaving out, the court will determine whether it is a substantial omission or not, and if so, it will be referred to as a material contradiction.

Amendments to Section 161 CrPC

The major changes following the amendments are as follows:

  1. The Criminal Procedure (Amendment) Act, of 2008, went into force on December 31, 2009. This Amendment included a proviso in Section 161(3) which stipulates that the ‘statement shall be recorded by audio-video electronic means’.
  2. The Criminal Law (Amendment) Act, 2013, which took effect on February 3, 2013, was added in Section 161(3) that in a certain category of crimes against women or children under the Indian Penal Code, such as Section 354, Section 376, and so on, a statement must be recorded by a lady police officer or lady officer.

Conclusion

Though there are certain flaws in the recording of the Investigating Officer’s remarks, it nonetheless plays an important part in the commencement of court proceedings. The fundamental goal of Section 161 of the Criminal Procedure Code is to safeguard the accused from both overzealous police personnel and untrustworthy witnesses. So there should be stronger regulation and supervision authorities that would monitor the police during the examination of witnesses. This will almost certainly lead to a better means of scrutinising witnesses without police violence and rudeness, and this step will very certainly lead to voluntary witnessing in the near future.

Thus, we can say that the police’s ability to respond quickly and impartially is critical in this situation.

Frequently asked questions (FAQ)

Can the police submit a chargesheet in the absence of evidence?

When the police have completed their investigation and discovered sufficient evidence to continue with a criminal prosecution, they file a charge sheet. However, if no evidence of a crime is uncovered following an investigation, they will recommend dismissing the case by submitting a closure report to the Magistrate.

What is the evidentiary value of a statement made under Section 161?

The statements recorded by the police under Section 161 of the Criminal Procedure Code are not admissible in court. They can be utilised by the defence to refute the prosecution’s witnesses. However, if the prosecution witness becomes hostile, the Public Prosecutor can, with the consent of the court, cross-examine the witness and use the statements made by the witness under Section 161 to prove the inconsistency in his testimony.

References

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