This article is written by Arundhati Pawar, a graduate of Fergusson College in Pune and currently a practising advocate in Pune. This article discusses the concept of a compromise decree, the scope of the provision, its types and its appeal provisions.
Table of Contents
Introduction
In India given the lengthy litigation compromise is a common practice adopted by the parties to the civil suit for the speedy redressal of the suit. The word “compromise” means the act of negotiation where both parties exchange something to obtain a middle ground and arrive at a mutual conclusion. It is a give-and-take to settle the dispute.
In other words, a compromise is an agreement between the parties arranged to settle the dispute by mutual consensus. It is a tradeoff parties choose to avoid lengthy litigation and put an end to the dispute.
Conditions of compromise of suit
A lawful consent decree must have been passed
The parties to compromise should engage in the subject matter which is opposed by law. It should not be against public policy, immoral, or violated by statutory law. The compromise is void if the subject matter is illegal. An agreement not enforceable by law is void.
There must be an agreement or compromise
Parties should agree and arrive at a common conclusion. Both parties must have agreed and negotiated their terms and conditions in the agreement.
It must be in writing and signed by the parties
A compromise agreement should be in writing so as to avoid any ambiguity and future uncertainty.
It must be recorded by the court
The court, if satisfied with the compromise agreement of both parties to the dispute may record the compromise decree. Whenever the decree is recorded in a court of law, it is legally binding.
Minor cannot enter into compromise without appropriate representation by a proxy
Minor is to be represented by a guardian or any such person appointed to act on his behalf. The representative so appointed cannot, without the consent of the court, enter into a compromise agreement.
Order 23 CPC – Compromise of suit
Parties having a dispute come together and jointly decide to settle the conflict between them instead of taking the full course of a formal civil suit. Order 23 Rule 3 of the Code of Civil Procedure, 1908 states that when the parties have made an arrangement to settle the dispute entirely or in part the court if it is satisfied shall pass the decree to such effect and record the same. The agreement should be legal, in writing and signed by the parties. It should not be opposed to law and public policy.
Order 23 Rule 3 CPC
Where the court is convinced that the parties have mutually settled the dispute either completely or partly, the court shall record and order the decree for the same. Indian Contract Act (1872) stipulates agreement with mistake to the essential fact, unlawful consideration, agreement with the restraint of trade and legal proceeding, to do an impossible act as void or voidable under the Indian Contract Act, 1876 will not be considered lawful under this rule. An agreement void or voidable in accordance with the Indian Contract Act 1872 will not be considered lawful under this provision.
Order 23 Rule 3A CPC – Bar to challenge compromise decree in a separate suit
Order 23 Rule 3A expressly bars instituting a fresh suit for which a compromise decree is passed. It can only be probed by the same court which recorded the compromise. InTrilokiNath Singh vs Anirudh Singh (D) Thr. Lrs (2020), it was held that the suit for a declaration which was filed before the civil court was not maintainable in the light of Order 23 Rule 3A of CPC. The bar also applies to strangers to compromise proceedings. Not being a party to the compromise decree will confer the party cause of action and the right to invalidate the compromise decree passed by the High Court.
In Sree Surya Developers and Promoters vs. N.Shailesh Prasad and Others (2022), it was held that no independent suit could be maintained against a compromise decree. The main objective of the adjudicating forums is to attain conclusive decisions in order to avoid lengthy litigation. The intent of the legislation is to bar additional litigation where there exists a valid agreement between the parties. Hence the lower court was right in rejecting the claim on the grounds that a suit for relief sought to challenge the compromise decree would not be maintainable.
No independent suit on the ground of unlawfulness can be maintained against a compromise decree. The remedy available to the parties is to file an application where such a compromise was recorded.
Order 23 Rule 3B CPC – No agreement or compromise is to be entered in a representative suit without the leave of the court
Generally, all the parties involved in the subject matter are the parties to the suit. Representative suits are an exception to that rule. Representative suits are instituted by one or more parties either for themselves or on their behalf against one or more parties that have a similar vested interest in the subject matter of the suit. In representative suits, it is mandatory for the parties to obtain approval from the court to enter into such a compromise; failure to obtain the consent of the court will make the agreement void.
Representative suits include:-
Suit under Section 91 which envisages public nuisance as annoying and harmful acts which affect the public at large.
Suit under Section 92 which deals with public charities where trust property is misused.
Suit under Order 1 Rule 8 which deals with the right of a person to defend himself and others having the same interest.
Any other person who may not be a party to suit but will be affected by the decree of the court.
Here since the interest of numerous parties is at stake, notices are served to all the parties in the representative suit.
What happens when a compromise decree is vitiated
Parties to the compromise can be prevented from proceeding with the compromise decree. Compromise can be cancelled or prevented whenever the compromise decree is vitiated on the grounds of fraud, illegality, mistake of fact, coercion, undue influence or misrepresentation. In this case, the parties are to approach the same court which recorded and passed the decree. It needs to be proved why the agreement should be considered unlawful in the eyes of the law. After inquiring the court ascertains the effectiveness of the compromise decree and decides whether to set aside the decree.
In Lalitha Theresa Sequeria vs Dolfy A Pias @ Adolphys Joseph Pais (2014)the plaintiff, in this case, alleged that the decree was obtained by fraud and was called to defeat and shadow the provisions of the Urban Land Ceiling Act (1976). The plaintiff could not prove the alleged facts. There was no recorded evidence to establish his allegations. Therefore the court held that there was no ground or reason to interfere with the judgement and order by the High Court.
Execution of compromise decree
The compromise decree and other decrees of the court are executed similarly. Before the Amendment of 1976 compromise decree could only be passed for the matter related to the subject matter of the suit. After the amendment, the scope of the compromise decree was increased, where compromise can be decided if
Related to the parties of the suit.
Need not be related to the subject matter of the agreement but needs to be related to the suit.
Can a compromise decree be challenged?
Section 96 of the CPC provides a provision for appeal from the original decree. A compromise decree is an exception to this provision. Subclause (3) of Section 96 enumerates that an appeal cannot lie against a decree passed with the agreement of the parties.
An appeal cannot lie for setting aside a compromise decree on the ground that it is obtained unlawfully. A compromise decree can be challenged where there are unprecedented circumstances and evidence on the face of the information provided to the court.
In Ajitpalsingh s/o.Nirmal Singh Khalsa Versus Sanjay s/o.Shamrao Deulkar (2016) a compromise decree was passed before Lok Adalat, and it was held that the decree passed was conclusive and binding on the parties involved. The compromise decree cannot be challenged. The only relief one can obtain is by filing a writ petition under Article 226 or Article 227 of the Constitution of India subject to specific grounds.
Judicial pronouncements
In R. Rajanna vs S.R.Venkataswamy & Ors (2014) the appellant filed an original suit challenging the legality compromise decree. Here since the compromise decree was already passed the plaint was rejected on the ground that no separate suit can be filed once the compromise decree is passed. It was held that no independent suit could be instituted challenging the compromise decree; such a suit was barred by the provisions of Order 23 Rule 3A of the CPC.
In Daljit Kaur & Ors vs Muktar Steels Pvt Ltd & Ors (2013) it has been opined that if the litigants enter into a settlement and compromise decree was passed and recorded by the court. The court has recorded all the material documents and facts, and the same has not been challenged. In such a situation no appeal can lie against the consent decree. Section 96(3) of the Code of Civil Procedure states that no appeal can lie from a decree passed under Order 23 Rule 3.
No appeal is maintainable in case of a consent decree with reference to the specific bar contained in Section 96 (3) of CPC.
An appeal cannot sustain against the order of the court recording the compromise.
An Independent suit cannot be filed for setting aside the compromise decree.
A consent decree is official and obligatory except when it is set aside by the same court that passed it.
Conclusion
Order 23 Rule 3 of Civil Procedure Court 1908 plays a vital role in law as it puts an end to litigation. A compromise decree is the court’s approval of the settlement agreed upon by the parties. It is an easy way to resolve disputes where the parties are at a consensus. It saves the valuable time of the court, besides saving money and time of the parties too. Thus, it is always encouraged that the parties come to such settlements as permitted by the law.
Frequently Asked Questions (FAQs)
Whether a compromise decree requires registration?
Any decree or order creating a new right, title, or interest in immovable property of a value of Rs.100/- or above is compulsory for registration. Section 17 of the Registration Act, 1908 identifies the documents for which registration is compulsory.
InMohammade Yusuf and Others Versus Rajkumar and Others (2020) it was held that the compromise decree does not require registration, but if the subject matter deals with the immovable property of a value of Rs.100/- or more, then it is not excluded from registration under Section 17(2).
Can a compromise decree in a prior suit bar a subsequent suit by virtue of res judicata?
If the subject matter in question has already been decided and the rights claimed in the new suit are the same as decided in earlier legal proceedings in such circumstances subsequent suits will be barred. The parties are restrained from taking a contrary stand in the subsequent suit. If the parties exhibit a new ground, it is only in such a situation the subsequent suit will persist.
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This article has been written by Ishani Samajpati, pursuing B.A. LL.B. (Hons) under the University of Calcutta. The article explores the underlying concept of deferred tax, how deferred tax occurs, and how deferred tax assets and deferred tax liabilities are accounted for.
The term ‘tax’ is usually related to the contribution of an individual to the state revenue, paid to the government, over a period of time. However, the concept of deferred tax is completely different from all the commonly known taxes levied by the government.
The word ‘deferred’ means ‘postponing any action,” while tax refers to the amount of money contributed by an individual to the state’s revenue, levied by the government. In simple words, deferred tax is the tax payable at a later date or time.
Discussion about deferred taxes, its various aspects, related concepts and how deferred tax is completely different from other commonly known taxes are further discussed elaborately in this article.
What is deferred tax
The term ‘deferred tax’ refers to the approximate amount of tax payable in the future. Deferred tax is the amount of income tax to be paid in the future in order to adjust any differences that arise due to taxable profits and accounting profits.
The deferred tax amount in the financial statement is not an amount to be paid but is just an amount as a result of the difference between the calculation based on accounting standards versus the calculation based on tax regulations. It should be kept in mind that deferred tax is calculated solely for accounting purposes and the tax amount is not paid in reality. Rather, it is calculated to adjust the temporary differences between the income statement and the tax statement. Deferred tax is also not refundable from the revenue authority.
The deferred tax is usually seen on the balance sheet of any company. The financial statements of the balance sheet of any company usually consist of the taxes payable in the current year and the deferred taxes.
Every company prepares two types of financial reports in any financial year. One is the financial report containing an income statement of the company, and another one contains the tax statement of the company. This helps a company directly monitor the income generated and the amount of taxes paid in any particular financial year, thereby making the calculation of profit and loss easier. However, the amounts mentioned in the two statements may vary sometimes, often due to the present and past transactions. That is when the term ‘deferred tax’ comes into play.
Temporary differences in deferred tax
Deferred taxes are mainly created because of the temporary difference. Temporary differences are the differences that occur as a result of the difference between the carrying amount of an asset or liability in the statement of financial position and its tax base. The tax base of an asset or liability is the total amount or value attributable to that asset or liability for tax purposes. It is calculated on the basis of tax rules in a specific country.
The difference in tax arises because of the taxable incomes or profits earned by a company and the reported amount in the financial statements. It results in a future tax-deductible amount. The temporary difference results in deferred tax. The difference would eventually get reversed.
Sometimes, temporary differences are created where revenues are taxable after they are recognised in the financial statement. Any receivable accounts or investments may be recognised for revenues that will result in taxable amounts in future years (deferred tax liability) when the asset is recovered.
Creation of temporary differences
Following are some examples of situations where temporary differences are created.
i) Products sold in equated monthly installments (EMIs).
ii) Contracts accounted for under the percentage of completion method for financial reporting purposes.
iii) Investments where the return is due in the future.
In all these cases, revenue will be gained in the future. The amount has to be reported in the financial statement but not in the income statement, thus giving rise to a temporary timing difference.
Types of temporary differences
Temporary differences can be any of the following two cases:
Deductible temporary difference in case of deferred tax asset; and
Taxable temporary difference in case of deferred tax liability.
Reasons deferred taxes occur
Before discussing deferred tax, a basic concept of how taxation is normally calculated and mentioned in balance sheets is discussed. In normal circumstances, when a company is profitable, the revenue earned by the company and the cost incurred is added and the result is the earnings by the company before taxation. After applying the current tax rate levied by the government, the income tax expense will be deducted from the earnings before taxation, and the result will be the net income earned by the company for that particular financial year.
The entry for recording the income tax expense will be mentioned as the debit income tax expense in the income statement and credit income tax payable on the balance sheet. When the payable tax is subsequently transferred to the tax authorities, the payable income tax is debited and cash is credited.
The above-mentioned situation applies to a company that regularly generates profit. But in the case of a newly-formed or start-up company that has not generated any profit until now, the situation is completely different. That is when the deferred tax occurs.
Deferred tax arises because there are differences between taxable profits and accounting profits. Since the companies calculate both the taxable and accounting profits, some differences arise due to the application of different provisions of law. These temporary differences are accounted for, recognized and carried forward in the books of accounts. Accordingly, two types of deferred taxes are created. They are deferred tax assets and deferred tax liabilities, respectively.
Deferred tax assets
Deferred tax assets are created whenever taxable profit is more than the profit mentioned in the books of accounts.
Occurrence
Even if a company does not generate any revenue in the first year, it incurs costs and therefore generates negative earnings before tax. The income tax expense on those earnings before tax and the net income is also negative. In this situation, the company has to suffer losses in that particular year, and the tax deduction becomes more than the profit generated. However, the tax relief is given in the form of Net Operating Loss (NOL) Carryforward, i.e., the company has to adjust its losses from the initial years with profits from subsequent years. In the case of an NOL, the company does not owe any taxes. The payable income tax is calculated as the deferred tax asset on the balance sheet.
For example, let us take the case of a domestic company in India named X. In a particular financial year, it earned a revenue of Rs 1,000,000 and incurred a cost of Rs 9,00,000. Therefore, the earnings before taxes of the company are revenue minus cost, i.e., Rs. 100,000. Then, at a tax rate of 25%, the income tax expense will be Rs 25,000 and the net income will be Rs 75,000.
Here, the journal entry for recording the income tax expense is debit income tax expense in the income statement and credit income tax payable on the balance sheet. Once the tax payable is transferred to the tax authorities, the income tax payable is debited and the cash is credited.
Now, let us take the case of a startup named Y, which did not generate any profit in the first year, but incurred costs, thus creating negative earnings before tax. Hence, the income tax expense and the net income is subsequently negative. Here, Y should apply Net Operating Loss Carryforward, i.e. it should adjust the loss in the first year with the profit of the next year.
The negative income tax payable by startup Y is mentioned as the debited deferred tax asset in the balance sheet and credited income tax expense in the income statement.
Deferred tax assets on the balance sheet
The way the negative income tax gets booked is to credit income tax in the income statement and debit deferred tax assets on the balance sheet. Deferred tax assets reduce the amount of taxes paid in future periods.
For example, a newly formed company or startup generated no profit in the first year. So, it carries on the deferred tax asset on the balance sheet in the next year and generates a certain amount of revenue and earnings before tax. On these earnings before tax, an income tax charge equal to the amount of deferred tax is recorded.
In terms of journal entries, the income tax expense is debited in the income statement, and instead of crediting income tax payable on the balance sheet, the deferred tax asset is credited and depleted.
Hence, the company adjusted its loss in the first year with the profit in the subsequent year.
Creation of deferred tax assets
The common denominators of deferred tax assets are the temporary timing differences between tax and book accounting. Deferred tax assets occur when taxable income is higher than the accounting income. Some of the items that may create deferred tax assets are pensions, employee benefit plans, non-deductible reserves, accruals, allowances and claims, etc.
Deferred tax asset impairment
Deferred tax asset impairment is the reduction or decrease of the balance sheet asset. Such a decrease occurs when there is a tax rate change or when there is a change in the likelihood of being able to recover deferred tax assets against future sources of taxable income.
Deferred tax liabilities
On the other hand, deferred tax liabilities are created when the taxable profit is less than the accounting profit and there are temporary differences between the accounting tax and the actual payable income tax.
Occurrence
Deferred tax liability occurs when an obligation to pay income tax arises in one particular financial year but the income tax is due to be paid in another subsequent year. In simple words, deferred tax liability signifies that a company has to pay more income taxes in the future period. It occurs when the company postpones an event that would be recognised as an income tax expense.
Deferred tax liabilities are also created when the government and the tax legislators allow corporations to pay their corporate income taxes at a much later date. The main reason for providing this incentive to corporations is to give them a chance to increase their capital investment, which in turn helps to create more job opportunities.
Deferred tax liabilities in real life
Some of the examples of deferred tax liabilities in real life are as follows:
Expense of depreciation
Expense of depreciation caused due to different calculations by tax laws and accounting rules is one of the main reasons behind deferred tax liability. In India, depreciation is calculated differently in the Income Tax Act, 1961 and the Companies Act, 2013.
Products sold on EMIs
The products sold on equated monthly installments (EMIs) to customers create deferred tax liabilities on the companies since the sale took place at a much earlier date but the income tax will be paid on a much later date. In this case, the obligation to pay tax is created immediately the moment the product is sold to a customer, but the tax is to be paid only after the customer completes all the EMIs.
Conclusion
The recognition of a deferred tax asset or a deferred tax liability at the end of each accounting period is required by the Indian Accounting Standards (Ind AS). The temporary differences lead to the creation of a deferred tax asset or liability. Where the book profit is higher than the taxable profit, a deferred tax liability gets created, and alternatively, where the book profit is lower than the taxable profit, a deferred tax asset gets created.
Frequently asked questions (FAQs) on deferred taxes
What is deferred tax?
Deferred tax is the estimated amount of future tax payable as a result of current and past transactions by a company in the financial statements. It is used as an accounting entry and not the actual tax payable to or refundable from the tax authorities of the government.
Why do deferred taxes occur?
Deferred taxes occur as a result of temporary differences in the accounting profits and taxable profits.
What are the two kinds of deferred taxes?
Two kinds of deferred taxes are deferred tax assets and deferred tax liabilities.
What are the benefits of the calculation of deferred tax?
Deferred tax predicts the estimated amount of future tax payable by a company. It also offers a glimpse of the profit and loss status of the company. Apart from that, the calculation of deferred tax is required by Indian Accounting Standards.
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This article is written by Tarini Kalra, a student of B.B.A. LL.B. from Fairfield Institute of Management and Technology, GGSIPU. The present article deals with Order 38, Rule 5 and the circumstances wherein the defendant must attach the property before a judgement on the court’s direction.
It has been published by Rachit Garg.
Table of Contents
Introduction
“Can a defendant obstruct a property in a suit?” Absolutely not. A court has an extraordinary power to issue an interim order under Order 38 Rules 5 to 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) for the attachment of a property before judgement. Attachment of a property before judgement is the legal concept of seizing property to ensure the satisfaction of a judgement. The goal is to protect the plaintiff’s interests if the court is convinced that even if a decree is obtained, the plaintiff may not be able to relish it due to the obstruction that the defendant may cause.
Objective and scope of Order 38 Rule 5 CPC
The purpose and scope of Order 38 Rule 5 of the CPC and the regulations that follow it are only to safeguard the plaintiff from any damage caused by or likely to be caused by the defendant acquiring the suit property while the case is pending. ‘Attachment before judgement’ is a punitive remedy since it significantly interferes with the defendant’s property rights prior to the ultimate settlement of the dispute. A defendant is not forbidden from engaging with the suit property merely because a lawsuit has been filed against him. The burden of proof lies on the plaintiff. The plaintiff must establish prima facie that his claim is substantial and genuine, as well as satisfy the court that the defendant intends to impede the property by disposing of all or part of his property or delay the execution of any decision that may be made against him.
In the case of Raman Tech. & Process Engg. Co. & Anr. v. Solanki Traders(2007), the Hon’ble Supreme Court laid down the object, nature and scope of Order 38 Rule 5. The Hon’ble Court remarked that the objective of Order 38 Rule 5 CPC is to prohibit the defendant from resisting a prospective decree in favour of the plaintiff by seeking to dispose of or remove the suit property outside the jurisdiction of the court. The court must be satisfied that the case of the plaintiff must be prima facie and establishes that the defendant is seeking to remove or dispose of the suit property in order to resist any possible decree. The Court further pointed out that the defendant is not precluded from dealing with his property because a lawsuit has been or is likely to be brought against them. The transfer of a business from one location to another, or the transportation of machinery to another location, is not a sufficient ground for attachment before judgement.
In the case of Vandana Verma v. Roop Singh & Ors(2022), the Delhi High Court dismissed the application of the plaintiff under Order 38 Rule 5 on the ground that merely for the asking of the plaintiff, the application of attachment before judgement cannot be admitted. The plaintiff must prima facie prove the necessity of granting of temporary injunction where the defendant attempts to dispose of, transfer or create any interest to the third party in the suit property.
Concept of Order 38 Rule 5 CPC
Order 38 Rule 5 deals with furnishing security for the production of property by the defendant. It states that if the court is satisfied at any stage of a suit that the defendant may dispose of all or part of the suit property, or transfer all or part of their property beyond the local limits of the court’s jurisdiction, it may pass a decree against defendant along with the production of an affidavit by the plaintiff or as the court directs. The court may direct a time limit to furnish security and a specific amount in the order or to produce and furnish the property or its value as ordered by the court, or any portion adequate to comply with the decree or substantiate the reason for not furnishing security. On the direction of the court, the plaintiff is required to determine the property that must be attached along with its approximate value. The court may order the conditional attachment of all or part of the suit property. An order of attachment shall be deemed void if it is made without complying with the provisions of Rule 5.
In the case of Premraj Mundra v. Md. Maneck Gazi(1951), the Calcutta High Court stated that the affidavit supporting the plaintiff’s accusations must be concise and thoroughly verified. If something is stated to be true based on knowledge, information, or belief, the affidavit must specify which portion is true based on knowledge, the source of the information, and the grounds for the belief.
In the case of Huawei Technologies Co. Ltd. v. Sterlite Technologies Limited(2016), the Delhi High Court acknowledged that all of the prerequisites of Order 38 Rule 5, CPC must be met before the court may examine the plaintiff’s claim for securing the sum and that the court must exercise its discretion with extreme caution.
When the defendant fails to furnish security without any reasonable ground
Order 38 Rule 6 deals with the provision when the defendant fails to furnish security without any reasonable ground. If the defendant fails to provide any justifiable grounds for giving security or fails to furnish the security within the period prescribed by the court, the court may order that the suit property or any portion sufficient to comply with any decree, be attached. The court may order the attachment of the mentioned property or any portion of it, to be revoked or issue any other order it deems appropriate when the defendant presents sufficient justification and the required security.
In the case of M/S. Muthoot Leasing and Finance v. N.P.Asiya(2011), the Kerala High Court remarked that under Order 38 Rule 6, if the defendant fails to establish a reasonable cause for not furnishing security or fails to furnish security, the court may order an attachment. The court is obligated under Order 38 Rule 6(2) to revoke the previously imposed attachment if the defendant offers security or establishes reasonable justification.
Mode of attachment
The mode of attachment before judgement is outlined in Order 38 Rule 7. It specifies that the attachment must be made in accordance with the guidelines established for the attachment of property in the execution of a decree.
The procedure for arresting or attaching property beyond the jurisdiction of a district court is outlined in Section 136. It states that when an application is made for arresting any person or attaching any property under Section 136, not relating to the execution of decrees, and such person or property resides outside the local limits of the jurisdiction of the court to which the application is made, then, at the discretion of the court, an arrest warrant or an order of attachment may be issued and sent to the district court within whose jurisdiction the subject of the application is located, along with a copy of the warrant or order and the probable amount of the costs of the arrest or attachment.
In the case of Mohit Bhargava v. Bharat Bhushan Bhargava & Ors. (2007), the Hon’ble Supreme Court observed that Section 136 stipulates for an order of attachment of property outside the jurisdiction of the court and transferring the order of attachment to the district court within whose local limits the property is situated, and it excludes execution of decrees from within its ambit.
Adjudication of claim to property attached before judgement
The adjudication of a claim to property attached before judgement is outlined under Order 38, Rule 8. It states that the adjudication of a claim for property attached before judgement should be the same as claims to property attached in the execution of a decision for the payment of money.
In the case of M/S Value Advisory Services v. M/S Zte Corporation & Ors(2009), the Delhi High Court observed that Order 38 Rule 8 provides for adjudication of claims by the court for attachment qua properties or money in the possession of third parties. A third party can challenge the claim. While the party seeking attachment may claim ownership of the property on behalf of the party he is seeking a decree against, the third party may establish title to the property in himself or in yet another party, object to the attachment for other reasons, etc. It also stated that Order 38 Rules 7, 8, and 11A extend the attachment provisions in Order 21 Rules 46, 46A, and F to attachment before judgement as well. Order 21 Rule 46 C allows for the hearing of disputed matters where a third party disputes a suit.
Removal of attachment when security is furnished or a suit is dismissed
The removal of attachment when security is furnished or a suit is dismissed is outlined under Order 38, Rule 9. It states that the court shall order the attachment before judgement to be revoked when the defendant provides the necessary security along with the attachment fee or when the claim is dismissed.
In the case of Vareed Jacob v. Sosamma Geevarghese & Ors.(2009), the Hon’ble Supreme Court observed that Order 38 Rule 9 is an independent and substantive statutory right on the part of a defendant to notify the court about the procurement of the required security to satisfy the plaintiff’s claim, and as a result, an order of attachment is not required to be maintained. The order of attachment expires when the suit is dismissed in accordance with Order 38 Rule 9. The Court also noted that dismissing a suit does not render an order of attachment void ab initio because a sale of property pursuant to an order of attachment would be invalid even after the date of the sale and the attachment are dismissed.
Attachment before judgement does not affect the rights of strangers, nor bar decree-holder from applying for sale
Order 38, Rule 10 stipulates that attachment before judgement does not affect the rights of strangers or decree-holders to apply for sale. It states that attachment before judgement shall not impair the rights of people who are not parties to the suit that existed before the attachment, nor shall any person holding a decree against the defendant be barred from applying for the sale of the property under attachment in execution of such a decree.
In the case of C.V. Anandan v. K.V. Easwaran(2021), the Madras High Court ruled that under Order 38 Rule 10 CPC, an attachment made before judgement does not affect the rights of any individual who is not a party to the suit and does not prevent any individual who holds a judgement against the defendant from applying for the sale of property under attachment in execution of a decree.
Property attached before the judgement may not be reattached in the execution of the decree
Order 38 Rule 11 discusses whether the property attached before the judgement may not be reattached in the execution of the decree. It states that if a decree is issued in favour of the plaintiff and the property is attached in accordance with the provisions of Order 38 then, the property does not need to be reattached upon an application for execution of such a decree.
In the case of Usha v. S.K. Sikkaiyan(2022), the Madras High Court held that where a property has been attached before judgement, it need not be re-attached in the execution proceedings.
Provision applicable to attachment under Order 38 Rule 11 CPC
The provisions of Order 38 Rule 11A apply to an attachment established in the execution of a decree for the purposes of applying to an attachment made before the judgement that continues after the judgement under the provisions of Rule 11. An attachment before judgement in a dismissed suit for default should not be reinstated because the order dismissing the cause for the default has been set aside and the suit has been reinstated.
Property which can be attached
The properties that can be attached are outlined in Sections 60, 61, 62, 63, and 64 of the CPC.
Section 60 deals with properties which can be attached and sold in the execution of a decree. The following properties can be attached or sold in execution of a decree: land, houses or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, government securities, bonds or other securities for money, debts, shares in a corporation and all other saleable property, movable or immovable possessed by the judgement-debtor, or the earnings of which they have disposal right for their benefit, whether held in the name of the judgement-debtor or by another person in trust for them or on their behalf.
It excludes the following for attachment or sale:
The necessary wearing-apparel, cooking vessels, beds and bedding of the judgement debtor, his wife and children, and personal ornaments that, according to religious custom, cannot be parted with by any woman;
Tools of artisans, and, if the judgement-debtor is an agriculturalist, his husbandry implements, any cattle and seed-grain that may, in the court’s opinion, be necessary to enable him to earn his living as such, as well as any portion of agricultural produce or of any class of agricultural produce that may have been declared to be exempt from liability under the provisions of Section 61;
Houses and other buildings along with the materials, sites and land immediately pertinent and necessary for their comfort belonging to an agriculturist or a labourer of a domestic servant and occupied by him;
Books of account;
A mere right to sue for damages;
Any personal service rights;
Stipends, gratuities or political pensions permitted for government pensioners, or payable from any service family pension fund that has been declared in the official gazette by the Central Government or the state government;
The remuneration of labourers and domestic servants, payable in cash or in kind;
Salary of one thousand rupees and two-thirds of the remaining in the execution of any decree other than a maintenance decree, which is applicable for one-third of the salary. However, where any portion of such portion of the salary is liable to attachment has been under attachment, whether constantly or intermittently, for a total period of twenty-four months, such portion shall be exempted from attachment until the expiry of a further period of twelve months, and where such attachment has been made in execution of one and the same decree, shall be finally executed after the attachment has continued for a total period of twenty-four months;
All compulsory deposits and other sums derived from any fund to which the Provident Funds Act, 1925, applies or funds that the Act specifies are exempt from attachment;
All deposits and other sums in or derived from any fund to which the Public Provident Fund Act, 1968, applies or funds that the act specifies are exempt from attachment;
The funds payable under a life insurance policy on the judgement debtor;
The interest of a lessee of a residential building to which the laws governing the management of rents and accommodations are presently in effect;
Any allowance covered in the pay of any government employee, railway employee, or local government employee deemed free from attachment by the competent government through notification, or any subsistence grant or allowance paid to the employee while they are on suspension;
An expectation of succession through survivorship or prospective or potential right or interest;
A right to future maintenance;
Any allowance recognised by Indian legislation to be exempt from attachment or sale in fulfilment of a decree;
When a judgement debtor is a person liable for the payment of land revenue of any movable property that is exempt from sale for the recovery of an arrear of such revenue under any current statutory provisions.
In the case ofO. Laxmireddy v. Vadla Veeraiah (1999), the Andhra Pradesh High Court concluded that the benefits granted under Section 60(1) might be availed of when the attachment before judgement is sought under Order 38 Rule 5 CPC.
Section 61 exempts partial agricultural production by the state government. It states that any portion of agricultural produce or any class of agricultural produce that the state government deems appropriate for the purpose of providing until the next harvest, for the proper cultivation of the land, or the support of the judgement debtor and his family will be exempted from attachment or sale in execution of a decree by publication in the official gazette by general or special order and declaration in the case of all agriculturalists or of any class of agriculturalists.
Section 62 addresses the seizure of property in a dwelling. It specifies that no one who is carrying out any action ordering or sanctioning the seizure of moveable goods may enter any dwelling-house after sunset and before sunrise. No outside door of a dwelling house shall be broken open unless the judgement-debtor occupies the dwelling house and refuses or prevents access. However, once the person carrying out any such action has obtained entrance to any dwelling-house, they may break open the door to any room in which they believe the property is located. When a room in a dwelling-house is occupied by a woman who, according to country customs, does not appear in public, the person carrying out the process shall give such woman notice that she is at liberty to withdraw and after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, they may enter such room to seize the property, employing all precautions consistent with these provisions.
Property that has been attached to carry out judgements from several courts is covered under Section 63. Any property that is not in the custody of any court but is subject to attachment in execution of decrees of more than one court shall be adjudicated by the highest grade court, or, if there is no difference in grade between the courts, it must be adjudicated by the court under whose decree the property was first attached, for determining any claim to such property and objection to its attachment. No action will be taken by a court implementing one of these proceedings and any such proceedings will be deemed to be invalid within the ambit of Section 63. The proceedings exclude an order permitting the purchase price payable by a decree-holder who acquired property during a sale performed in the execution of a decree to be set off.
Section 64 addresses private alienation of property once the attachment is declared invalid. Any private delivery or transfer of the attached property or any interest, any payment of a debt, dividend, or other funds to the judgement-debtor in violation of the attachment, will be unlawful against all claims actionable under the attachment after it has been made. Any private transfer or delivery of the attached property or any interest made in accordance with any contract for such transfer or delivery entered into and registered before an attachment will be exempt from the ambit of Section 64.
Exceptions to Order 38 Rule 5 CPC
The exceptions to Order 38 Rule 5 are as follows:
Agricultural production is not attachable before the judgement
Order 38 Rule 12 outlines that agricultural production is not attachable before judgement. It stipulates that nothing in Order 38 shall be construed as authorising the plaintiff to file for the attachment of any agricultural products in the possession of an agriculturist or as granting the court the authority to order the attachment or production of such produce.
In the case of Vasu v. Narayanan Nambooripad (1961), the Kerala High Court observed that the provisions of Order 38 Rule 12 do not empower the plaintiff to claim the attachment of any agricultural products in the agriculturist’s possession or provide the court with the authority to do so.
Small cause court cannot attach immovable property
Order 38 Rule 13 states that small cause courts have no authority to issue an order for the attachment of immovable property.
Conversion of unsecured debt into a secured debt
The purpose of Order 38 Rule 5 is to safeguard the plaintiff from any damage caused by or likely to be caused by the defendant acquiring the suit property while the case is pending. A plaintiff should not use the provisions of Order 38 Rule 5 to coerce the defendant into settling the suit claim.
In the case of Y.Kesavulu v. T.Kalavathi(2016), the Andhra Pradesh High Court remarked that the purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. A plaintiff should avoid using requisites of Order 38 Rule 5 as leverage to compel the respondent to settle the suit claim. Before exercising authority under Order 38 Rule 5 CPC, a plaintiff must establish prima facie that his claim is genuine and valid and that the defendant is about to remove or dispose of all or part of his property with the intention of preventing or delaying the execution of any judgement.
Conclusion
Order 38 Rule 5 is an extraordinary and discretionary power of the court. The court can order attachment before judgement only when the plaintiff must establish prima facie that his claim is genuine and valid and that the defendant is about to remove or dispose of all or part of his property with the intention of preventing or delaying the execution of any judgement. Therefore, it is only up to the courts to examine any such prayer or request brought before them and harmonise the divergent claims of parties in order to aid in the administration of justice.
Frequently Asked Questions (FAQs)
What is the procedure for attachment before judgement?
An application is filed by or on behalf of the plaintiff to persuade the court that the defendant intends to delay or impede the execution of any order or is likely to give away the whole or any part of the suit property outside the court’s local jurisdiction. The primary reason for such an order of attachment before judgement is to satisfy the plaintiff that the decree, if made, would be satisfied.
What is Appendix F No 5?
Appendix F deals with supplemental proceedings. The number 5 under it has a format of attachment before judgement with the order to call for security for the fulfilment of the decree under Order 38 Rule 5.
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This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. This article provides the procedure where the defendant appears on the day of the adjourned hearing and gives a reasonable cause for his non-appearance at the previous hearing. It also mentions other Rules of Order 9 related to this matter.
Imagine that you and your batchmate had a fight. You decide to complain about him to one of your teachers. The teacher, after listening to the matter from your side, calls your batchmate to give him an opportunity to present his side. He comes and presents his case. When the teacher is still listening to both of your arguments, she is called to do some urgent work. She asks you and your batchmate to come tomorrow. Now, as per the order of your teacher, you are present in front of her, but your batchmate is absent. What will you do in this situation? Will the teacher be able to resolve your fight? What if, in the absence of your batchmate, she decides to punish him?
The next day, when your batchmate asks the teacher, she punishes him for his misbehaviour with you. Now, do you think your batchmate must be given a chance to state a reason for his absence?
A similar situation occurs when the defendant in a civil suit is not present for the hearing. In such a situation, can the court proceed to pronounce a final judgement? Should the defendant be given a chance to prove his innocence? If he has a reasonable cause for his absence, will the court reconsider the decree passed against him in his absence on those grounds?
All these questions are dealt with in this article. The article talks about Order 9 of the Civil Procedure Code, 1908 (CPC), which deals with the appearance and non-appearance of the parties in a court hearing. Order 9 Rule 7-11 specifically provides the procedure to be followed in case a defendant does not appear for the hearing. It further provides a procedure to set aside an ex parte decree passed against the defendant in his absence. Let us now understand the Rules of Order 9 in this regard.
Order 9 CPC
We are all aware that there are two parties in a suit, i.e., the plaintiff and the defendant. Generally, both parties must be present in court for the hearing. But if, in any case, any of them is not present, Order 9 is applicable. This Order provides rules for the appearance of parties in a suit and also gives the consequences for their absence. According to Rule 1 of the Order, both parties must be present either personally or through their pleaders in the court on the day fixed in summons issued to the defendant.
Rule 2 further provides that if it is found that no summons were issued to the defendant due to the plaintiff’s fault, the suit will be dismissed by the court. In the case of Begum Para Nasir Khan v. Luiza Matilda Fernandes (1984), it was held that the fundamental rule of law states that every party must be given a fair opportunity to present their case. The service of summons is a means to serve this purpose. Therefore, no decree can be passed against the defendant if no summons has been issued to him, or, if he has not been given a chance to represent himself. The Order further provides the procedure when either of the parties is present. The present article mainly deals with the defendant under Rule 7 of Order 9 CPC.
Rule 7 of Order 9 CPC
Rule 7 provides the procedure in cases where the defendant was absent in the previous hearing but appears in the subsequent hearing and gives a reasonable or good cause for his absence in the previous hearing. It provides that in a situation where the court has adjourned the hearing of the suit ex parte and the defendant provides a good cause for his absence, the court, on its terms and conditions, may hear him and deal with the suit as if he had appeared on the date fixed for hearing.
In the case ofArjun Singh v. Mohinder Kumar (1964), the Supreme Court held that if the defendant is able to show any good or reasonable cause for his absence on the fixed day of the hearing, he will not be penalised or forbidden to participate in further proceedings. However, he cannot claim his position back as it was at the commencement of the trial. Rule 7 of Order 9 CPC is based on the principle that the defendant has a right to defend himself until the suit is completely decided by the court, and this must be understood liberally as held in East India Cotton Mfg. Co. Ltd. v. S.P. Gupta (1985).
Essentials of Rule 7
For the application of Rule 7 in a suit, the following essentials or conditions must be fulfilled:
The defendant must not have appeared on the previous day fixed for the hearing.
He should have a good or reasonable cause for his previous absence or non-appearance.
The court must have adjourned the ex parte hearing in his absence.
The court has discretionary power to order him to pay the costs or impose any other condition.
Other Rules related to Rule 7, Order 9
Rules 8, 9, 10, and 11 of Order 9 CPC deal with the defendant’s appearance or non-appearance. Let us understand them in detail.
Rule 8
According to this Rule, when the defendant appears but the plaintiff is absent on the day fixed for the hearing, the court will dismiss the suit by passing an order. But if the defendant admits any of the claims of the plaintiff, even in plaintiff’s absence, the court will pass an order against the defendant in favour of the plaintiff with respect to that particular claim and dismiss the remaining suit.
It is applicable only when there is one plaintiff and he does not appear for the hearing; if there is more than one plaintiff, all of them must be absent for this Rule to be applicable. If any one of them appears, then Rule 10 will be applicable. However, the suit cannot be dismissed in case the plaintiff was not able to appear because of a death in his family or relatives. This was held in the case ofP.M.M. Pillayathiri Amma v. K. Lakshmi Amma (1967).
Rule 9
This provides that if a suit is dismissed according to Rule 8 of Order 9, the plaintiff is barred from instituting a fresh suit for the same cause, but he is allowed to file an application to set aside such an order of dismissal. But to get an order to set aside the order of dismissal of suit, he has to satisfy the court that there was a reasonable cause for his non-appearance on the day fixed for the hearing.
The court has the discretionary power to ask him to pay the costs or impose any condition in this regard. However, it is necessary for the plaintiff to prove that there was a reasonable cause for his non-appearance. The court while deciding the suit of dismissal must consider whether the plaintiff honestly tried to appear for the hearing on the fixed day or he was intentionally avoiding it (Motichand v. Ant Ram, 1952). This Rule further states that unless the other party has been informed through a notice, no order can be passed.
Rule 10
This rule envisages that where there are more than one plaintiff in a suit but only some appear on the day fixed for hearing, the court will proceed with the suit considering that all the plaintiffs have appeared for the hearing.
Rule 11
According to Rule 11, when there is more than one defendant in a suit and some appear but the rest do not, the court will carry out the proceedings, but during judgement, it may pass an order against those who did not appear. In such a situation, the court may pass a decree against or in favour of defendants who appeared, but it will be ex parte for those who did not appear.
Ex parte decree against the defendant
As given under Rule 7 of Order 9, the court will pass an ex parte decree in the absence of the defendant on the day of the hearing. But what if he appears on the next date of hearing and gives a good cause for his non-appearance? Will this decree against him be set aside?
These questions have to be considered carefully, and so according to Rule 7, if the court is satisfied with the cause given by the defendant, an ex parte decree will be set aside. Now the question that arises is: what is the procedure, and who can apply to set aside the decree? The answers to these questions lie in Rule 13 of Order 9 of the CPC.
Meaning of ex parte decree
A decree that is passed in the absence of the defendant against him on the day fixed for hearing but in the presence of the plaintiff is called an ex parte decree. This decree is neither null nor void and inoperative; rather, it is voidable unless it is annulled by the opposite party, i.e., the defendant, legally on valid grounds. Until then, it is operative and enforceable like any other decree and is covered under a valid decree. This was held in the case of Pandurang Ramchandra v. Shantibai Ramchandra (1989).
Procedure to set aside the decree
The procedure to set aside the ex parte decree is as follows:
The application to set aside the decree can be filed by the defendant against whom it passed. In the case of more than one defendant, any one of them can do so. In case of his death, his legal representatives can file the application.
This application must be filed in the court that passed this ex parte decree against him. However, if it is reversed or modified by a superior court, then the application must be filed in that particular court.
The defendant has the burden of proving that there existed a reasonable and sufficient cause for his non-appearance and that he tried to appear but could not do so.
While considering the application, the court has to consider whether the defendant honestly tried to appear or did not appear intentionally.
After the satisfaction of the court about the existence of a reasonable and sufficient cause, it may set aside the ex parte order. In the case ofParimal v. Veena (2011), the Supreme Court held that while deciding the application to set aside the order, the court must follow a liberal approach and give reasons for setting aside the order.
It must be noted that the court will not set aside the decree merely on the ground of irregularity in the summons if the defendant knew the date of the hearing and still did not appear.
Grounds and causes for setting aside ex parte decree against the defendant
There are two grounds for setting aside an ex parte decree. These are:
Sufficient cause
Failure to duly serve the summons to the defendant.
Illustration: X filed a suit against Y and Z in which an ex parte decree was passed against them. Later, it was found that Z had not been served the summons, and hence, the court had to set aside the decree against him, but Y had to give a reasonable and sufficient cause for his non-appearance to set aside the decree.
Sufficient cause
Whether a cause was sufficient enough to prevent the defendant from appearing in court on the day of the hearing must be decided on the basis of the facts and circumstances of each case. This was also observed by the court in the case of Salil Dutta v. T.M. and M.C. (P) Ltd. (1993).
Examples of sufficient cause recognised by courts so far are:
A bonafide mistake of date;
Delay in the arrival of the train;
Disease or sickness of the defendant or counsel;
Fraud;
Death of a known person;
Imprisonment;
Strikes, etc.
Remedies available to the defendant
If an ex parte decree is passed against the defendant, he is entitled to the following remedies:
File an application requesting the court to set aside the decree,
He can make an appeal against such a decree as per Section 96 of the CPC.
He can also file an application for review.
In the case of Bhanu Kumar Jain v. Archana Kumar (2004), the Supreme Court held that the remedies are concurrent in nature and can be used by defendants simultaneously.
Conclusion
Order 9 Rule 7 CPC clearly provides that in order to set aside the decree passed in the defendant’s absence, i.e., an ex parte decree, he has to give a good cause for his non-appearance on the day fixed for the hearing. The question to be considered in this regard is whether the rule of res judicata (according to this rule, if a suit is one decided by a competent court, it cannot be instituted by the same parties in the same court under the same jurisdiction for the same cause of action again) applies when an application is made to set aside the ex parte decree. It was observed that if the application made to set aside the decree is dismissed on legal grounds or merits, then the defendant will not be allowed to file a second application. In this situation, the rule of res judicata will apply. But if the dismissal is due to non-appearance or other circumstances, then a second application can be filed (Prahlad Singh v. Col. Sukhdev Singh, 1987).
It must be noted that Rule 7 gives the court discretionary power to order the defendant to pay costs for his non-appearance and impose terms or conditions as it thinks fit to proceed further with the proceedings. Whether the cause stated by the defendant is reasonable or sufficient is to be decided by the court individually based on the facts of each case. However, if a defendant files a separate suit in this regard, such a suit is not maintainable in court.
Frequently Asked Questions (FAQs)
What happens when neither party appears for a hearing?
According to Rule 3 of Order 9 CPC, the court will dismiss the suit if neither party appears on the day of the hearing fixed in the summons.
Is there any limitation period to file an application for setting aside an ex parte decree?
According to Article 123 of the Limitation Act, 1963, an application to set aside the ex parte decree must be filed within 30 days from the date of such a decree.
Can an ex parte decree passed against the defendant be revised?
According to Section 115 of the CPC, such a decree falls within the ambit of a decided case and therefore can be revised.
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The article is written by Tushar Singh Samota, a law student from University Five Year Law College, Rajasthan University. The article discusses the concept of the shops and commercial establishments legislation with special reference to the Kerala Shops and Commercial Establishments Act of 1960. The discussion will be supported by various provisions of the Act in the state of Kerala.
It has been published by Rachit Garg.
Table of Contents
Introduction
The employment of employees working in firms is frequently governed by an employment agreement, which protects the employees. On the other hand, employees working in shops and commercial businesses frequently do not sign an employment agreement. As a result, it is critical to understand whether there is any regulation that protects employees in such situations. The statutes on shops and commercial establishments, which are state-by-state laws, govern the employment of employees in shops and commercial establishments across the country. The legislation on shops and establishments acts governs the majority of Indian enterprises and their employees.There is no centralised labour law for shops, in contrast to the Factories Act, of 1948. Based on a model code, each state has its own shop legislation. The Department of Labour of that particular state controls the locations where any trade, business, or profession is practised.
In this article, the author has tried to discuss various provisions related to the Kerala Shops and Commercial Establishment Act, 1960 by discussing the relevant provisions of the Act. The article will also touch upon various judicial rulings in the state of Kerala related to the Act.
Provisions related to the Kerala Shops and Commercial Establishments Act, 1960
The Kerala Shops and Commercial Establishment Act, 1960 (hereinafter referred to as the “Act”) was put into effect to codify the laws governing the terms of employment and work in stores and other commercial establishments in the state of Kerala as well as to safeguard workers rights. The Act outlines requirements for business registration, employer responsibilities, salary payment, work schedules, breaks, overtime, forbidden employment for children, cleanliness, ventilation, and lighting, as well as penalties for noncompliance. It also regulates salary payment, terms of service, work hours, rest intervals, overtime work, opening and closing hours, closed days, holidays, leaves, maternity leave and benefits, work conditions, laws for child employment, record keeping, and so on.
The Kerala Shops and Commercial Establishments Workers Welfare Fund Board was established to promote the well-being and relief of self-employed individuals and workers covered under the Kerala Shops and Commercial Establishments Act of 1960. It also focuses on providing pensions to these employees and safeguarding their well-being.
Important definitions under the Act
Commercial establishment
Section 2(4) of the Kerala shop and commercial establishment Act defines “commercial establishment” as a commercial or industrial or trading or banking or insurance establishment, an establishment or administrative service in which the employees are primarily engaged in office work, a hotel, restaurant, boarding or eating house, cafe or any other refreshment house, a theatre or any other place of public amusement or entertainment, and any other establishment that the government declares to be a commercial establishment but does not include.
Employer
Section 2(7) of the Act defines an employer as a person who is an establishment’s owner or has ultimate authority over its operations and includes any manager, agent, or other person operating in that capacity under the Act.
Establishment
It refers to a store or a commercial establishment, restaurant, dining house, theatre, or another place of public enjoyment or entertainment, as defined by the State government under Section 2(8) of the Act.
Shop
Shop as defined under Section 2(15) refers to any location where a trade or business is conducted or where customers are served and includes offices, storerooms, godowns, or warehouses used in connection with such trade or business, whether on the same premises or elsewhere. However, it excludes commercial establishments and shops attached to factories where employees are not entitled to the benefits provided for workers under the Factories Act of 1948.
Exemptions provided under the Act
Section 3 of the Act specifies the following exceptions to which the provisions of this Act do not apply:
Individuals in administration positions in any company;
People whose primary job requires travel, as well as canvassers and caregivers whose names do not show on the muster records;
Establishments run by the Central or State governments, municipal governments, the Reserve Bank of India, and cantonment authorities;
Implantation in mining and oil fields;
Installations in bazaars in areas where temporary fairs or festivals are conducted for no more than fifteen days at a time;
Establishments that, although not factories within the definition of the Factories Act, 1948, are controlled by separate legislation now in force in the State of Kerala in respect of the topics dealt with in this Act.
Registration process under the Act
The registration process of an establishment(s) as defined under Section 5A of the Act states that every business’s employer must apply for a registration certificate for the establishment to the competent authority that the government may designate in this regard in the appropriate form and upon payment of the appropriate fees. Within 60 days after the start date of this Section, the aforementioned application must be submitted. As long as the establishment was founded after the start of this Section, the application must be submitted within 60 days after the establishment’s first day of operation.
The following details must be included in the application:
The employer’s and, if any, the manager’s names;
The establishment’s postal address;
The establishment’s name, if any;
The establishment’s category, i.e., if it is a shop or a restaurant
Business establishment;
The number and names of the establishment’s workers;
Any additional information that may be required.
On receipt of an application, the competent authority shall register the establishment and issue to the employer a registration certificate in the prescribed form, which shall be conclusive evidence that such establishment is duly registered under this Act if it is satisfied that the application follows the provisions of this Act and the rules made thereunder. A registration certificate issued under this Act is only good for the year in which it is issued. However, it may be renewed on an annual basis.
An application for the renewal of a registration certificate issued under this Act must be submitted at least thirty days before the expiration of the period for which it is valid, along with any applicable fees. If such an application is submitted, the registration certificate is deemed to remain in effect until it is renewed or, as the case may be, is rejected. The competent authority must be satisfied that the requirements of this Act and the rules issued thereunder have been substantially complied with before it can award or renew a registration certificate.
If it appears to the competent authority that an employer has violated or neglected to comply with any of the provisions of this Act or the rules made there under, or that a registration certificate granted or renewed under this Act was obtained through misrepresentation or fraud, the competent authority may, by order, cancel or suspend the registration certificate after providing the holder with an opportunity to be heard.
Appeals
Provision for appeal has also been provided under Section 5B of the Act which states that any person who is aggrieved by an order of the competent authority refusing to grant or renew a registration certificate, or cancelling or suspending the same, may appeal to the District Labour Officers on payment of costs withinsixty daysof receiving the order prescribed.
Duties of employer
Section 5C of the Act specifies the various duties of the employer such as
It shall be the duty of the employer to conspicuously display the registration certificate issued or renewed under this Act.
The employer must within seven days of the change notify the competent authority and the Inspector having jurisdiction over the area in which the establishment is located in the prescribed form of any change in any of the particulars contained in his application under sub-section (1) of Section 5A.
A notification issued under subsection (2) must be accompanied by the required fee.
Upon receipt of a notification under sub-section (2) and the necessary fees, the competent authority shall, if satisfied that the notice is correct, register the modification and modify the registration certificate or issue a new registration certificate.
It shall also be the duty of the employer that within ten days of shutting his establishment, he must notify the relevant authorities and the Inspector with jurisdiction over the region in which the enterprise is located.
Upon receipt of a notification under sub-section (5), the competent authority should, if satisfied that the notice is correct, remove the name of such business from the register and invalidate the registration certificate.
Duplicate registration certificate application:
If a registration certificate is lost, stolen, or destroyed, the employer must immediately notify the relevant authorities and apply for the issuance of a duplicate registration certificate, together with the necessary price.
Registration
Mandatory
Deadline for registration:
60 days
Renewal Period:
30 days before the expiry of the registration period
Hours of work
Hours daily and weekly
Any employee at a place of business is not allowed to be compelled to work more than eight hours per day and 48 hours per week. Except for stock taking and other special occasions, the total number of hours worked each day, including overtime, should not exceed ten. (Section 6)
Extra pay for extra work
An employee who works in any establishment for eight hours on any given day or for more than forty-eight hours in any given week is entitled to receive twice the regular rate of pay for such overtime labour. (Section 7)
Weekly holidays
Per person employed in a store or a commercial enterprise is entitled to a one-day holiday every week.
Intervals for rest
An employee must have at least one hour of rest before starting a four-hour shift at a workplace. (Section 8)
Closing of shops
Every store must close completely on one day of the week, and a sign indicating the day must be displayed there year-round. Shops in the area that have been granted government exemptions are not affected by this as provided under Section 11 of the Kerala Shops and Establishment Act.
Holidays and leave
Section 13 talks of the concept of annual leave with wages and thus mentions in subsection(1) that every employee in an establishment has the right after twelve months of continuous service in that establishment to twelve days of paid vacation in the following twelve months if such paid vacation is to be accumulated up to a maximum of 24 days.
During every twelve months of continuous service every employee in an establishment is also entitled as mentioned in subsection(2) of Section 13 to be:
Granted leave with pay for a period not to exceed twelve days due to any illness or accident suffered by him, and
To unpaid leave for a period not exceeding twelve days for any reasonable reason.
If an employee entitled to any holidays under sub-section (1) is discharged by his employer before the holidays are granted or if he quits his job after applying for and being denied the holidays it is the duty of the employer to pay him the amount payable under this Act for the holidays as mentioned in subsection(3) of Section 13.
Whereas subsection(4) provides that if an employee entitled to any leave under sub-section (2) is discharged by his employer while sick or injured as a result of an accident it is the duty of the employer to pay him the amount payable under this Act for the period of leave to which he was entitled at the time of his discharge along with the addition to the amount payable to him under sub-section (2),(3).
Subsection(5) provides that if an employee is deemed to have completed a period of twelve months of continuous service under this Section regardless of any interruption in service during those twelve months.
By sickness, accident, or authorised leave but not exceeding ninety days or
Through a lockout or
Through a strike that is not an illegal strike or
By intermittent periods of involuntary unemployment not exceeding 30 days in total and authorised leave shall be deemed not to include any weekly holidays permitted under this Act that occur at the start or end of an interruption caused by the leave.
Subsection(6) talks of that if an employee in a hostel attached to a school or college or in an establishment kept in a boarding school in connection with the boarding and lodging of students and resident masters are granted the privileges referred to in subsection (1) to (5) reduced however proportionately to the period for which he was employed continuously in the previous year or to the period for which he will be employed continuously in the current year along with the other privileges also.
Wages during leave period
Section 14 of this Act talks of the provisions of wages during the leave period, it states that
Employees who are granted leave under Section 13 or Section 13A are paid at a rate equal to the daily average of their full-time total earnings, along with the dearness allowance and the cash equivalent of any benefits received from the employer’s sale of foodgrains and other items at discounted rates for the days the employee worked during the month but it should be excluded from any overtime earnings and bonuses.
The sum payable to an employee for leave granted under Section 13A shall be paid only upon submission of a certificate from a competent authority also indicating that the employee has undergone sterilisation surgery.
Apart from this, the inspector can file procedures on behalf of any employee to collect any payment due to an employer which is not paid by the employer as mentioned in Section 15 of this act.
Dismissal notice
As mentioned under Section 18 of the Act, no employer may terminate an employee who has been employed continuously for at least six months, unless there is a justifiable reason, and without providing the employee with at least one month’s notice or pay instead of such notice, which is not required when the employee’s employment is terminated due to a charge of misconduct that is supported by sufficient evidence documented at an inquiry held for that purpose.
Appeal provision on dismissal
The appeal provision on dismissal as provided under Section 18(2) of this Act states that any employee whose services are terminated may file an appeal with such authority and within such time as may be stipulated, either because there was no legitimate basis for terminating his services or because he was not guilty of misbehaviour as determined by the employer.
After giving notice to the employer and the employee in the prescribed manner, the appellate authority may dismiss the appeal or direct the reinstatement of the employee with or without wages for the period he was kept out of employment, or direct payment of compensation without reinstatement, or grant such other relief as it deems appropriate in the circumstances of the case.
When ordering the reinstatement of an employee, the appellate authority must additionally order the payment of such compensation as he specifies if the employer fails to restore the employee in line with the orders. The judgement of the appellate authority shall be final and binding on both parties and shall not be subject to review in any court of law and will be implemented within the period stated in the appellate authority’s order.
Employment of women and children
Prohibition on employment of children:
A child under the provisions of Section 19 of this Act may not be forced or permitted to work in any company unless they are an apprentice performing a job that the government may specify.
Prohibition of employment of women and persons below seventeen years during the night:
Section 20 of the Act states that no woman or anyone under the age of seventeen may be forced or permitted to work as an employee or in any other capacity in any establishment before the hours of six in the morning or after seven in the evening.
Health and safety
For the health and safety of the workers, the following provisions are provided in the Act:
Cleanliness, ventilation, and illumination:
Section 21 of the Act states that every institution must keep its premises free of any effluvia from drains, urinals, or other annoyances. Cleaning must be done at all times by using lime washing, colour washing, painting, varnishing, disinfecting, and deodorising.
Every establishment’s premises must be ventilated in line with the requirements and must be adequately lit during all working hours. Every establishment’s premises must be ventilated in line with the norms and ways that may be set.
If an inspector believes that the premises of any establishment under his jurisdiction are not adequately maintained in terms of cleanliness, lighting, or ventilation, he may serve the employer with a written order and require them to be completed by a certain date.
Precaution against fire
Fire safety procedures must be performed at every facility following any applicable regulations as stated in Section 22 of the Act.
In addition to this, Section 24 discusses the distribution of expenses incurred for health and safety. It states that if any person whether the owner or the occupier of an establishment alleges that the entire or a portion of the expense should be borne by any other person with an interest in the premises then he may apply to the Munsiff’s court having jurisdiction over the area in which the establishment is located and any order issued under this Section may require that any such contract as aforesaid may cease to have effect in so far as it conflicts with the conditions of the order including the terms of any contract between the parties to be just and equitable.
Enforcement and inspection
The government may appoint any person(s) as inspectors under Section 25 within such local limits as the government assign to them respectively and these inspector(s) are deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code, 1860 and can demand all such registers, records and notices as required and such inspector shall have following powers and duties:
He can access any location that is or that he has reason to suspect is an establishment at any reasonable time, with any helpers, who are individuals working for the government or any local authority, that he deems appropriate;
He can also do any necessary site inspections, review any required registers, records, and notices, and gather any evidence of any individual that he deems essential to carry out the purposes of this Act.
He can also use any additional authority required to carry out this Act’s objectives but this provision will obligate nobody.
Penalty
Whoever violates the terms of the Act or Rules is penalised underSection 29of the Act, and for this purpose,
Subsection 1 states that any violation of Chapter 1A’s Sections 5A and 5C is punishable by law and includes the following:
After conviction for the initial violation with a fine that may reach 250 rupees and in the event of a subsequent violation with a fine that may reach 10 rupees per day of continued violation, or
With a fine that could reach ten rupees for each day the violation persists after being given the notice to stop by the appropriate authority.
Anyone who violates any of the rules in Sections 6, 8, 9 to 11, 13, on conviction, the following offences: 14, 18, 21 and 22 shall be subject to a fine that, for a first offence, may reach 250 rupees, and, for a second or any subsequent offence, may reach 500 rupees.
Subsection 2 states that anyone found guilty of violating any of the terms of Sections 7, 19, 20, 28, or 30 faces a fine that could reach fifty rupees. Whereas subsection 3 provides that unless a complaint is made, no court shall take cognizance of any offence punishable by this Act or any rule or order made thereunder.
Within three months of the date the alleged offence was committed, either by the employee of the establishment alone or through the union to which he belongs; or
By the Inspector within sixty months of the date he first learns of the alleged offence.
No offence punishable by this Act or any rules or orders made thereunder shall be tried in a court lower than that of a Magistrate of a Second Class as stated in subsection 4 of this Section.
Aside from this penalty clause, Section 35 of the Act states that the government has the power to suspend Act provisions by notice and to stop all or any of the Act’s provisions from being in effect during any special event connected to a fair, festival or a series of public holidays for a predetermined period of time.
Need for an amendment to the Act
The majority of employees working in shops and commercial establishments in Kerala are hired through security firms temporarily. They are not covered by this legislation and hence do not receive any benefits. As a result, the government has decided to change the definition of employee under the said legislation, authorising the government to notify any class of individuals as workers to bring them within the purview of the said act and to extend the benefits provided by the act to such persons as well.
Due to enormous complaints from employees, trade unions, and social workers about the absence of sitting areas at work, the government has decided to change the Kerala shops and commercial establishment legislation to include rules for providing employees with resting areas. By respecting the notion of gender equality, women employees who want to work at night are permitted to do so from 9 am to 6 pm, subject to specific requirements set to safeguard their safety. Employees working in stores and other enterprises can now take weekly leave only on certain days of the week. Employees are also calling for the restrictions requiring the mandatory closure of businesses on a specific day of the week to be removed.
Given the current economic climate and shifting consumer purchasing habits, the government believes it is preferable to enable establishments covered under the Kerala Shops and Commercial Establishment Act. To be open on all days with efficient monitoring to ensure that all employees get weekly off. The amendment also wants to improve the enforcement mechanism and also as the government intends to provide arrangements for the computerised maintenance of registers and records.
The Kerala Shops And Commercial Establishments (Amendment) Bill, 2018
The Kerala Government adopted an ordinance, the Kerala Shops and Establishments (Amendment) Bill, to further amend the Kerala Shops and Commercial Establishment Act, 1960. The aforementioned Bill makes various modifications, some of which are given below:
Amendment of Section 2
An amendment has been made to Section 2 of the Act. Under it, clause 6, Section 2 has been substituted. Now “employee” is a person entirely or largely engaged in connection with any establishment and includes apprentices or any other class of individuals as the government may determine.
Amendment in Section 11
Section 11 of the Act was amended. The substitution of this Section provides for the allocation of weekly holidays in the following manner-
Firstly, every person employed in a shop or commercial enterprise should be permitted a holiday of one complete day each week; however, this will not apply to any individual whose total term of employment in the week including leave day is less than six days.
Secondly, it was changed that no deduction from an employee’s pay shall be made for a day on which a holiday has been granted except if the employee is hired on the basis that he would not normally receive pay for that day, he shall nonetheless be paid for that day the wages he would have received had the holiday not been granted on that day.
Amendment of Section 20
In a recent amendment in this Section, it was held that no woman or anyone under the age of seventeen shall be forced or permitted to work either as an employee or in any other capacity in any establishment before 6 A.M. or after 9 P.M.
However, an employer may hire women between the hours of 9 p.m. and 6 a.m. with their consent if no female employees are hired during those times unless they are part of groups of at least five people in which at least two of whom must be female, and they are given adequate protection for their safety, dignity, and freedom from sexual harassment, as well as access to transportation from the store or establishment to their homes.
Insertion of new Section 21B
A newly added provision for seating facilitations has been inserted which states that in every shop and establishment, suitable arrangements for sitting shall be provided for all workers in order to prevent “on the toes” situations throughout the duty time and to ensure that they take advantage of any opportunity to sit that may arise in the course of their work.
Amendment of Section 29
The punitive provisions in Section 29 of the Act have been modified to increase the fine amount. Like previously, anybody who violated Sections 6, 8, 9, 11, 13, 14, 18, 21, and 22 of the Act was penalised with 500 rupees, but this has now been increased to fifty thousand rupees. Second, obstructing an inspector in the exercise of any of its powers is now punishable by a punishment of one lakh rupees.
Amendment of Section 30
The registers, records, and notice displays must be kept in both physical and electronic form, according to Section 30 of the Act.
The recently enacted regulation provides equal employment possibilities for women in the state of Kerala while also ensuring their safety and protection. Furthermore, the state Bill strives to provide comfort to workers by providing appropriate seating arrangements. Stricter fines have been introduced in order to ensure compliance with the Act’s requirements.
Case laws
Anamalais Bus Transport Private v. D. Ramakrishna Pillai And Anr. (1967)
The issue in this O.P. was whether Section 18 of the Kerala Shops and Commercial Establishments Act 1960 is inconsistent with, or repugnant to, the Motor Transport Workers Act, 1981. Anamalais Bus Transport Ltd’s Manager is the petitioner. The first respondent was a contract worker for the petitioner. The 2nd respondent, the appellate authority under Section 18 of the Kerala Shops and Commercial Establishment Act 1960, found that the 1st respondent’s service had been illegally terminated and ordered the 1st respondent’s reinstatement with a payment of Rs. 250 in lieu of back wages for the period for which he was kept out of employment. In the event of a default, the petitioner was ordered to pay the first respondent an additional payment of Rs. 500 in lieu of reinstatement and all other claims by a stated date.
As a result, the writ petition was dismissed in the case of Anamalais Bus Transport Private v. D. Ramakrishna Pillai and Anr. (1967) and it was determined that there is no provision in the Motor Transport Workers Act 1981 that corresponds to Section 18 of the Kerala Act. It was further argued that because the Motor Act dealt particularly with the terms of service of motor transport employees, it would preclude the Kerala Act from addressing the conditions of service of workers in other stores and commercial businesses.
V. Sasidharan v. Peter and Karunakar, (1984)
In this case, according to the Kerala Shops and Commercial Establishments Act of 1960, the appellant chose to appeal respondent No. 1’s decision to terminate his employment with a law firm. Because Respondent No. 1’s firm was not considered a commercial establishment under the Act, Respondent No. 1 made the preliminary objection that the appeal could not be maintained. The preliminary objection was upheld by the appellate authority, who also dismissed the appeal. His writ petition and Letters Patent appeal to the High Court challenging the Appellate Authority’s decision were similarly denied. Therefore, the appellant approached the Supreme Court, which was asked to decide whether the office of a lawyer or a legal firm is or is not a commercial establishment under the Kerala Shops and Commercial Establishments Act in the case of V. Sasidharan v. Peter and Karunakar (1984).
The Supreme Court ruled that there is no need for a compelling reason to support the judgement that a lawyer’s office or a legal firm’s office is not a “shop.” It is a given that, traditionally, lawyers do not operate a business or trade and do not provide services to clients, regardless of what the general public may believe about the function of today’s lawyers and the purported closing of the gap between a profession and a business or trade.
C.V. Raman, Etc v. Management Of Bank Of India, (1988)
An employee of the Bank of India, a nationalised bank, filed a writ petition to challenge Section 18 of the Kerala Shops and Commercial Establishments Act, 1960, against a decision made by the Bank dismissing him from service following a domestic investigation in the case of C.V. Raman, Etc v. Management Of Bank Of India, (1988). The appellant-Bank made a preliminary objection regarding the maintainability of the appeal on the grounds that because it is an establishment under the Central Government as defined by Section 3(1)(c) of that Act, none of the provisions of that Act, including Section 18, under which the appeal was preferred, apply to it.
However, the Appellate Authority rejected this objection, and the bank then brought an original petition to the High Court to appeal the Appellate Authority’s decision. The High Court rejected the appellant-argument Bank’s and dismissed the original petition; as was already mentioned, it is this judgement that is being appealed in this civil appeal.
Mohini K. v. General Manager, Syndicate Bank, (1994)
The question of whether an alternative remedy through a referral to the labour court is a bar to the exercise of jurisdiction under Article 226 of the Constitution of India did not arise in the case of Mohini K. v. General Manager, Syndicate Bank,(1994). In that case, their Lordships were considering the provisions of the Tamil Nadu Shops and Establishments Act, the Andhra Pradesh Shops And Establishments Act, and the Kerala Shops and Establishments Act in relation to their application to nationalised banks and the State Bank of India. However, no such question arises in the present case, nor does it involve the interpretation of any such local act for determining the validity of the employee’s dismissal.
Sarangadharan v. Asst. Labour Officer, (2001)
It was argued in this case of Sarangadharan v. Asst. Labour Officer, (2001) that a school is neither a shop where items are sold to customers nor a place of business where any kind of transaction involving commerce takes place. There is no commercial activity carried out within an educational institution; instead, the main goal is to educate the students. There have been some claims made that paying high school tuition, accepting gifts, and incurring additional costs are all examples of commercial activity because these schools are not conducted for charitable purposes.
In the case of educational institutions, some form of business transaction is almost certainly involved. With a simple reading and interpretation of the phrases “shops and commercial establishments”, it is possible to conclude that no trade or commercial business is carried out by educational institutions that have a nexus with clients. The Court relied on Ramanathan v the State of Kerala (1995), in which the Court stated that, while the government has statutory authority to declare anything as a part of this Act, it must nevertheless fall within the description of commercial enterprises before the statute’s application is extended. Thus, it was decided that there was in no way any trade or business going on that was commercial. Thus, the Kerala Shops and Commercial Establishments Act 1960 would not apply to educational institutions.
Critical analysis of the Act
As the Shops and Establishment Act is a state statute, each state has developed its own set of rules and regulations, which offer various meanings and interpretations. After examining the Kerala Shop and Commercial Establishment Act, it is possible to infer that different states have instilled diverse meanings in terminologies such as commercial establishments and shops. Even state courts have provided differing interpretations on whether educational institutions are covered by the legislation or not. For example, the concept of business establishment is restricted in states such as Tamil Nadu and Andhra Pradesh. It excludes establishments recognised under the Societies Act or created as charity organisations. States like Delhi and Maharashtra, however, have expressly added those establishments within the scope of their shop and establishment Act.
Different governments have offered their own interpretations and points of view. Being a state law, it stands to reason that the state administration and the judiciary will come to different conclusions about its meaning and applicability. But in reality, the Kerala State Government, in my opinion, has made its legislation that differs somewhat from state to state. But the fundamental aim and underlying notion remain the same in nearly every state’s statute.
Conclusion
The State-specific Shops and Commercial Establishment Acts give employees in retail and commercial establishments across the nation several significant rights. India has a high unemployment rate and a dense population, which makes labour readily available at reduced costs. Workplace health and safety are frequently jeopardised in such circumstances. The largest problem is these employees’ lack of understanding, which allows their bosses to take advantage of them.
These employees are frequently forced to work long hours with no breaks, are not granted as many leaves as they are entitled to, are forced to perform overtime without pay, and, most crucially, are dismissed suddenly at the will of their employer without pay. And these folks endure in silence. As a result, it was deemed necessary to enact legislation in support of workers’ rights. The inefficient execution remains the Act’s restriction, and the only way to improve the issue is to raise awareness.
Frequently asked questions
Is a shop or establishment licence required in Kerala?
The Shop and Establishment Act of 1960 requires all commercial establishments and manufacturers to register. This registration is required for all commercial establishments, including offices, who must apply for an online licence granted by the labour department of the relevant state.
What exactly is the Kerala Shops and Establishments Act?
It is an Act to consolidate and revise the legislation governing the regulation of working conditions and employment in Kerala’s Shops and Commercial Establishments Act, 1960.
Does the Shops and Establishments Act differ by state?
The Shop and Establishment Act is governed by state law, and each state has its own set of laws and regulations. Rules differ from state to state since they are framed by the state government. As a result, the requirements of the state in which registration is to be obtained must be observed.
What is the goal of the Shops and Establishments Act?
Every Indian state has implemented laws and regulations governing working conditions. The goal is to ensure equal benefits for employees working in a variety of enterprises, ranging from stores, commercial establishments, and residential hotels to restaurants, theatres, and other public amusement or entertainment venues.
To whom does the Shop Act application apply?
An Application for Shops Act is required in some situations for enterprises that qualify as an “Establishment” under the Shops and Establishment Act. So, if you own a business in Kerala, you must get a Shop Act Licence under the Kerala Shops and Commercial Establishments Act, 1960.
Does the Act apply to Central government and State government establishments?
All provisions of the Act apply to the creation of the Central government and the State government.
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This article is written by Satyaki Deb, an LL.M. (IP) candidate from the Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur. This article provides a comprehensive picture of the types of patents in relative detail across the jurisdictions of the US, Europe and India as far as practicable.
Generally speaking, patents are certificates given by the government which empowers the assignee or patent holder the right to exclude others (negative rights) from making, using, or selling the invention envisaged under such a certificate for a limited period of time. The first granted patent can be traced back to 1421 in Florence, Italy, where a three-year monopoly was granted to architect and engineer Filippo Brunelleschi for his industrial invention of a barge with hoisting gear for the purpose of transporting marbles. Fast forward six centuries ahead, there are many types of patents now that grant the patent holders negative rights over their inventions, and this article will portray such types in relative detail across the jurisdictions of the US, Europe, and India as far as practicable.
What is a patent
Before talking about types of patents, it is logically imperative to understand briefly, from a legal perspective, what a patent is. According to the World Intellectual Property Organization (WIPO), a patent is an exclusive right granted for an invention (product/process) that is either a new way of doing something or provides a technical solution to a problem, and these exclusive rights are granted in lieu of disclosing to the public technical information (like best mode enablement, etc.) regarding the invention.
In a patent application, there are usually various parts like specifications, drawings, and claims. It is this “claims” portion that is perhaps the most significant part of the application, as this encompasses the invention for which the applicant claims protection. The specifications, claims, etc. in a patent application must conform to the disclosure requirements as prescribed in the relevant jurisdiction. Section 10 of the Indian Patent Act, 1970, 35 U.S.C. 112 of the USPTO, and Article 83 of the European Patent Convention (EPC) and their corresponding rules deal with how technical information needs to be disclosed and claims need to be constructed, etc. There are generally two types of claims- independent claims and dependent claims, and they shall be discussed appropriately in a relevant context at a later stage.
Different types of patent
There are different types of patents that are granted across the world, and naturally, they vary across the world as patent rights are territorial rights (i.e., patent rights are enforceable only in the territory they are granted in). The different types of patents are discussed as follows:
Product patents
Simply speaking, sometimes the inventors develop a product and/or method that provides a technical solution to a problem or is a new method of doing something. As mentioned before, it is the claims in a patent application (if deemed fit as per patent laws and rules) by the concerned patent office that gets patent protection. So, when in one or more claims a product is claimed to be protected and gets the said grant, such a patent is called a product patent. It is pertinent to note here that generally more than one invention cannot be claimed under one application and needs to be claimed by separate applications with some limited exceptions of interrelated products etc. Patent applications generally get rejected for a plurality of inventions if more than one product is claimed. To phrase it a little more technically, the independent claims of a (product) patent application cannot seek protection for more than one product or for a group of products linked so as to form a single inventive concept. But there can be more than one independent claim pertaining to the same product.
Claims are basically boundaries that define the invention, and anything falling within such boundaries is what the applicant wants protection for. Independent claims are standalone limitations that sufficiently define the invention, whereas dependent claims further qualify/define/limit a previous independent claim. So, in a product patent, it needs to have at least one independent claim that sufficiently defines the invention (product) and other dependent claims (s) further limiting/defining such product.
The wordings in the claims help us to construe what is being sought for protection, i.e., a product or methods. It is always best to understand with examples from claims of granted patents.
Example: If we take the example of a US patent US10643081 B2 (“Remote biometric monitoring system”), which is an example obtained from doing a claims search with the phrase “artificial intelligence” in the Orbit Express database, it can be seen that there are two independent claims- claim 1 and claim 11—out of a total of 20 claims. Claim 1 goes as “A system for remotely monitoring a sleeping subject, the system comprising: a digital camera….and flag a video clip for review based on greater than a threshold amount of motion being determined by analyzing the motion outside of the bounding box defined by the artificial intelligence module.” Claim 11 goes as “ A system for remotely monitoring a sleeping person, the system comprising: a digital camera configured to capture images of a person, the digital camera….and flag a video clip for review based on greater than a threshold amount of motion being determined by analyzing the motion outside of the bounding box defined by the artificial intelligence module.” As the wordings of the independent claims clearly show, it is a “system” that is being claimed, which helps us conclude that this is a product patent. Even the wordings of the dependent claims starts with phrases like “The system of claim 1…” and “The system of claim 11…” and this reaffirms the fact that the example is a product patent.
At a later stage, after discussing process patents, it will be shown that in a patent, both product and method claims can be there too. Also, for this reason, some scholars do not like to classify product patents as a type of patent and prefer to refer to the invention as product claims and process claims. But the above example is a case among many patents where only products have been claimed and granted, and it is logically believed that the term ‘product patents’ stands justified as a type of patent.
To sum up, in the wording of Section 48(a) of the Indian Patent Act, 1970, a patentee whose patent’s subject matter is a product can enjoy the exclusive right to prevent third parties from making, using, offering for sale, selling, or importing such products in India without his consent. In other words, with respect to a product patent, the rights envisaged under the aforementioned Section 48(a) are available to the patentee. The corresponding provision in the US for rights related to product patents is 35 U.S.C 154 (d) (1) (A) (i). The relevant EPC provision in this regard is Article 64(1).
Process patents
As the name suggests, process patents are those patents where the claims envisage the process of making something. In other words, only the methods are protected under patent rights and not the end product. Again, some scholars prefer to use the term utility patents (discussed later) when only method claims are granted protection. But in India, since utility patents are not granted, the Indian Patent Act, 1970, has been long granting process patents. As a matter of fact, before India implemented the minimum requirements under TRIPS by the three amendments in 1999, 2002, and 2005, process patents were preferred more. This is because process patents provided less degree of protection as only the method was being protected and not the end product, and this was very beneficial for developing countries like India. It was only after the 2005 amendment to Indian patent laws, did product patents became mainstream in India.
Basically, with process patent protection, it becomes easier for the competitors to invent an alternative method to produce the same or minorly modified same end product. This was immensely beneficial for unpredictable arts like biotechnology and developing and least developed countries preferred process patents over product patents for pharmaceutical inventions, etc. But this was against the interests of the big private players who wanted to enjoy a higher degree of patent rights, and thus product patents were made a minimum requirement under TRIPS that all countries needed to follow.
It is imperative now to understand process patents by way of example.
Example: If we look at the Indian patent IN 342229 (“Process to obtain an ultrafine gcc with high light scattering properties and high solid content”), there are 13 claims (1st claim is an independent claim), all of which start with the word “process.” Claim 1 goes as “Process for the manufacturing of a calcium carbonate-comprising material comprising the steps of..”. This shows us that the example is a process patent. One can search for the same patent in ‘inPASS’ with the patent number or title and look at the relevant patent documents, especially the claims, to understand further how method claims are getting constructed.
To sum up, in the wordings of Section 48(b) of the Indian Patent Act, 1970, a patentee, whose patent’s subject matter is a process can enjoy the exclusive right to prevent third parties from the act of using that process and making, using, offering for sale, selling, or importing products made directly from such process in India without his consent. The corresponding provision in the US for rights related to product patents is 35 U.S.C. 154 (d) (1) (A) (ii). The relevant EPC provision in this regard is Article 64(2).
Provisional patents
As the name suggests, provisional patents are temporary patents. In other words, the rights enjoyed by the patentee by virtue of a provisional patent are provisional in nature and can become mainstream upon fulfilling the territorial criteria of patentability within a prescribed time.
The US permits provisional patent applications where one can file the same without a formal patent claim, oath or declaration or fulfilling any information disclosure (prior art) requirements (since provisional applications are not examined). The objective behind this prima facie shortcut process is to provide inventors with the option of a lower-cost first patent filing in the US which helps to establish an early effective filing date. One can also use the term “patent pending” with regard to the invention of the provisional application. The same has been dealt with under 35 U.S.C. 111(b).
There is a non-extendable 12-month window of time in the US (and in most countries of the world) in which the complete non-provisional patent application needs to be filed as per 35 U.S.C. 111(a). In the US, there is two months window time after the 12-month window to file the full non-provisional patent application where the benefits of provisional application may be restored if due fees are paid and it is shown in a statement that the delay was unintentional.
Although it is not mandatory, it is advised that the applicant submit a few drawings with the provisional application that help to understand the invention in compliance with 35 U.S.C. 113.
One pertinent thing that needs to be noted in this regard is that though requirements are relaxed in a provisional application as compared to a non-provisional application, the following must be mentioned in a provisional application, viz:
That the application is a provisional application.
All the inventor name(s).
All the residences of the inventor(s).
Title of the invention.
Name and registration number of agent or attorney and docket number (if applicable).
Address of correspondence.
Any government agency that has a property interest in the application.
In India too, the same benefit of filing a provisional application for a patent is available and gives the benefits of securing an early filing date (which becomes a priority date), a 12-month window to file the complete patent specifications, and is a low-cost affair. This is a very commercially viable plan, as with the “patent pending” status, negotiations for further business or investments with regard to the invention of the provisional application become easier and more reliable. Section 9(1) of the Patent Act, 1970, deals with the provisional application, and one can find how to file a provisional patent application in India here.
The corresponding provision in the EPC to get provisional status is Article 67(1), which states that provisional status in the contracting states designated in the application can be obtained from the date of publication.
Design patents
At the outset, it is pertinent to mention that the concept of design patents is a US concept and not permitted in India. Designs get protected in India under the Designs Act, 2000, subject to fulfillment of related laws and rules, but the same is not patent protection but only design protection (proprietor gets copyright for design) for 10 years (extendable by 5 years upon fulfillment of certain conditions).
In the US, design patents have been defined under 35 U.S.C. 171. As stated in In re Frick (1960), patents can be granted for designs vide 35 U.S.C. 171, subject to other provisions of Title 35.According to this provision, anyone who invents a new, original, and ornamental design for an article of manufacture may get a design patent for the same subject to fulfillment of related rules and conditions. It is clear from the statutory definition that novelty, originality, and ornamentality are criteria for getting design patent protection besides passing subject matter eligibility. Thus, it can be stated that “while a patentable design may contain old elements, the finished product must have an unobvious appearance and not merely be the result of an obvious combination of the old elements,” as held in thePaul W. Garbo (1961) case.
Anyone versed with the basics of patent law can see that the criteria to get a product/process patent match more or less with that of a design patent except for the criteria of ornamentality which has replaced the ‘industrial applicability’ criteria for product/process patents.
Generally speaking ornamentality for an article of manufacture is the aesthetic features (shapes/configuration etc.) of such an article that has some functionality. It is very pertinent to note that the design needs to be unique and distinctive to the article and dictated by the function that it performs, but only the aesthetic aspects are protected and the functionality is not protected by design patents.
According to 37 C.F.R. 1.153(a), for design patents, only one claim is permitted and the same should indicate the ornamental design to the specified article in formal terms. Thus, the law clearly states that design patents only protect ornamentation. As the Federal Circuit held in Power Controls Corp. v. Hybrinetics, Inc. (1986), a design patent will be invalid if the same is “primarily functional rather than ornamental.” But this does not at all mean that a design patent cannot have any functionality. The United States Court of Customs and Patent Appeals (CCPA) held inIn re Garbo (1961) that a design patent can have functional elements and still be patentable “only if the design has an unobvious appearance distinct from that dictated solely by functional considerations.” To clarify the ornamentality and functionality aspect further, it can be stated along the lines of In re Carletti (1964) that often an invention that is primarily functional has some features or configurations that are pleasing to look upon. But unless such ornamentations or aesthetic features are not made for the purpose of ornamentation, such designs will not be patentable. In other words, if the ornamentation is necessary for the functionality of the product or invention, then such ornamentality cannot be protected by a design patent.
For example: in a golf club, there may be some configurations or features that are pleasing to look at, but if such configurations are the results of the functional consideration of such an article, then such ornamentations cannot get a design patent.
This brings us to the pertinent point of what elements are considered for design patent infringement. As stated in In re Rubinfield (1959), the design should be considered as a whole for the purpose of determining design patent infringement. Also,Applied Arts Corp. v. Grand Rapids Metalcraft Corp. (1933) made it clear that only the non-functional design aspects would be relevant in a case of design patent infringement.To this end, the test shall be the “sameness upon the eye test” established by the Hon’ble US Supreme Court inGorham v. White (1871). According to this test, if an observer, by ordinary observation, is induced to purchase one design, supposing it to be the other, then there is a case of design patent infringement. 35 U.S.C. Section 289 makes it illegal to sell an article of manufacture protected by a design patent, and if such infringement is successfully proved, the patentee can recover the total profit the infringer made by infringing the design patent. The relevant case law in this regard is the famous case of Apple v. Samsung (2015), where Apple sued Samsung, alleging that its design patent with respect to iPhones was infringed by Samsung.
According to 35 U.S.C. 173, design patents are protected in the US for 15 years from the date of grant for design applications filed on or after May 13, 2015.
Utility patents are another US concept and are not granted in India. Anyone who invents or discovers any new and useful process, machine, article of manufacture, composition of matter, or any new useful improvement thereof can get utility patent protection for 20 years just like regular patents (some countries like China give 10-year protection for utility model patents). Interestingly, more than regular patent applications, the USPTO gets utility patent applications. This is because of the lower degree of requirements of a utility patent application than a regular patent application. For example, lower levels of non-obviousness can be protected. In other words, marginal improvements can qualify for utility patents. Also, maintenance of utility patents is cheaper compared to regular patents and is subject to 37 CFR 1.20, and the amount of the current fee can be viewed in the USPTO Fee Schedule. Regarding when to pay and how often to pay the maintenance fees, the same can be obtained from the Patent Maintenance Fees Storefront. If the maintenance fees are not duly paid, just like regular patents, the utility patent protection lapses too, and the utility patent rights no longer remain enforceable. A business method patent is an example of utility patent in the US.
There are usually two types of utility patents, viz- provisional and non-provisional. As discussed before, under the heading of provisional patents, the term ‘provisonal’ refers to temporary protection with the privilege of ‘patent pending’ status. Whereas the non-provisional utility patent application is the one where the applicant files with complete specifications. The provisional route is the quick and inexpensive way to establish a filing date in the US, and this filing date can be claimed within the twelve-month window frame by submitting the non-provisional or complete application. It is pertinent to note that if this twelve-month window is crossed, the provisional application will not be examined and will get abandoned status. After the non-provisional application is submitted, the examiner examines the same for patentability, and if all the requirements are met, a non-provisional utility patent application is granted. Statistically speaking, every year the USPTO receives approximately half a million patent applications, and the majority of these are non-provisional utility patent applications.
The above discussions clearly show that action can be taken for utility patent infringement too. Usually, the claim for utility patent infringement is brought under the Federal Patent Act in Federal District Court. The relevant provision that deals with the jurisdiction for bringing in infringement claims are 28 U.S.C.A. 1338. To decide on the venue, the relevant provision will be 28 U.S. Code 1391, which states that the action for infringement of the patentee’s rights may be brought in the judicial district where the defendant has his place of residence or the judicial district in which a substantial portion of the infringement of patent rights took place, thereby giving rise to the claims. A utility patentee can take such action when any person without his authority makes, uses, offers for sale, or sells any utility-patented invention in the US by importing or otherwise during the term of the utility patent.
The corresponding provision in the EPC for utility patents is Article 140.
In the US, 35 U.S.C 161 deals with plant patents. According to this provision, anyone who invents or discovers and asexually reproduces any distinct and new variety of plant other than a tuber propagated plant or a plant found in an uncultivated state can get a plant patent subject to the conditions and requirements of the 35 U.S.C Title.
The grant of protection is for 20 years from the date of filing the application, just like regular patents. Regular patenting requirements apply herein too, like novelty, non-obviousness, industrial applicability, and subject matter restrictions.
It is pertinent to note here that for plant patents, plants in their ordinary meaning are considered. Algae and macro-fungi are also considered as plants, but bacteria will not be considered here.
Some of the accepted modes of asexual reproduction in plants include:
Rooting Cuttings
Grafting and Budding
Apomictic Seeds
Bulbs
Division
Slips
Layering
Rhizomes
Runners
Corms
Tissue Culture etc.
The reason only asexual reproduction is considered in this regard is because asexual reproduction leads to uniformity and stability in the plant.
Conclusion
After perusing the various types of patents, it is clear that just like patent rights are territorial in nature, similarly, types of patents vary across states. Bearing this in mind, a strategic approach becomes quintessential. For example- sometimes the invention may not be good enough to be a product patent, then one may apply for a utility patent or choose to keep the invention as a trade secret. Another pertinent example is that if one inventor has a US plant patent and wants to protect the same in India, he must not apply for patent protection in India, but he will need to see how he can come under the Protection of Plant Varieties and Farmers Rights Act, 2001. Thus, the types of patents make patenting easier and more efficient and can be strategically used for the benefit of the inventor as well as society.
Frequently Asked Questions (FAQs)
What is the difference between design and utility patents?
Generally speaking, design patents protect the aesthetic aspect, whereas utility patents protect the way an article is used and works. If an invention has both a functional as well as an aesthetic component, both design and utility patents are permissible. But the protection will be separate. In other words, a design patent will protect ornamentality, whereas a utility patent will protect the functionality of such an invention.
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This article is written by Shraddha Jain, a student at the Institute of Law, Nirma University, Ahmedabad. This article seeks to elucidate the concept of revisional jurisdiction of the high court and court of sessions mentioned under Section 397 CrPC. Further, this article discusses the provisions of Section 397 in detail along with its scope, limitations, and objectives of the revisional jurisdiction.
Sections 397 to 401 of the Code of Criminal Procedure (CrPC), 1973, are concerned with the High Court’s revisional jurisdiction. The revisional jurisdiction is drawn from three sources:
Sections 397, 398, 399, 400 and 401 of the Criminal Procedure Code;
In this article, we will be especially dealing with Section 397 of the CrPC, which talks about the power of the high court and session court with regard to revisional jurisdiction. In order to eliminate the potential for any miscarriage of justice in circumstances when no right of appeal is available, the Code has established another review mechanism, namely, “revision.” Sections 397, 398, 399, 400, 401, 402, 403, 404 and 405 deal with the higher courts’ “revision” powers and the method for using these powers. The upper courts have broad revisionary powers that are discretionary in nature. As a result, no party has an opportunity to be heard before any court exercising such powers.
Scope of revision under Section 397 CrPC
In the case of Amit Kapoor v. Ramesh Chander (2012), the Supreme Court highlighted the scope of revision under Sections 397 and 401 CrPC read with Section 482 CrPC, where it was stated that if one looks into the judicial pronouncements of this Court, it arises that the revisional jurisdiction can be exercised where the judgements under issue are hugely inaccurate, there is no adherence with the provisions of law, the recorded finding is not supported by evidence, relevant evidence is omitted, or judicial discretion is used arbitrarily or perversely. Though the provision does not contain the phrase “prevent abuse of any court’s procedure or otherwise to achieve the goals of justice,” the power of Section 397 is quite restricted. “The legality, validity, or accuracy of a court order is the basic cornerstone of exercising authority under Section 397, but justice must also be done.“
Section 397 CrPC: an overview
The power of the revisional or appellate court [Subsection (1)]
Section 397 empowers the high court or the court of session to call and investigate the record of any proceeding before any subordinate court for the purpose of ascertaining:
The accuracy, legal validity, or prudence of any order passed by the lower court; or
The consistency of any proceedings of such a court.
The high court or court of session may also order that the implementation of any judgement or order be suspended and that the accused be freed on bail or his own bond pending the examination of the record. Section 397 of the Code also empowers revisional courts to grant bail.
All magistrates are subordinate to the sessions judge for the purposes of this Section [explanation]
Section 397(1) emphasises that, for the purposes of Sections 397 and 398, all magistrates, whether executive or judicial, are regarded as subordinate to the sessions judge. Where there is no appeal, the only choice is revision.
Interlocutory orders may not be revised [Subsection (2)]
Subsection (2) prohibits the use of the revision authority in connection with any interlocutory order made in any appeal, inquiry, trial, or other action. This provision was enacted in order to expedite the resolution of criminal cases. It was believed that revision petitions against interlocutory orders would not only prolong but even occasionally destroy justice. For example a bail order, a call for a document, and so on. These orders are not particularly important, and the merits of the case will not be altered by them. In general, revision is based on a non-interlocutory order. However, if an interlocutory order is issued without jurisdiction (i.e., because the court lacks the authority to issue the order), a revision will be granted. For example, the rejection of the complaint is a substantial order since it directly affects the merits of the case as a whole, thus it is not an interlocutory order and revision will be granted.
The Supreme Court in K.K. Patel and Anr. v. State of Gujarat (2000) ruled that an order issued during an interim stage is not the exclusive test. If a party’s objection results in the conclusion of the action, the order issued in response to that objection is not an interlocutory order. Where, in a revision filed by the appellant against the magistrate’s order taking cognizance of the offences alleged in the respondent’s complaint, the appellant brought up an objection that the claim was precluded by limitation under Section 161 of the Bombay Police Act, 1951, and the objection, if affirmed, would have the impact of dismissing the whole prosecution proceedings against the appellant, the magistrate’s order could not be treated as an interlocutory order. It was not covered by Section 397(2).
No further applications for revision are allowed after one application [Subsection (3)]
According to sub-section (3), one cannot submit a revision application in both the high court and the court of sessions at the same time; hence, parallel applications are not permitted. If the court of session denies the application, the applicant may appeal to the high court, but not the other way around.
The term “made” implies creation, entertainment, and decision-making. If a session judge determines that a request should be brought to the high court, a new application to the high court is competent. The sub-section expressly prohibits the high court from entertaining an application from anybody who has applied to the session judge, and vice versa.
Objective of revisional jurisdiction u/s 397 CrPC
The purpose of the revision provisions is to rectify a legal deficiency or a jurisdictional or legal mistake. There must be a well-founded violation, and it may not be appropriate for the court to investigate orders that, on the surface, show thorough study and appear to be in compliance with the law. Revisional jurisdiction can be sought when decisions are severely inaccurate, there is no conformity with the legal provisions, the judgement recorded is based on no proper evidence, important evidence is omitted, or judicial power is exercised arbitrarily or perversely. These are not exhaustive classifications, but rather examples. Each case would have to be decided individually. Another widely acknowledged standard is that the higher court’s revisional authority is extremely limited and cannot be used on a regular basis. One of the limitations is that it cannot be used against an interim or interlocutory order.
Limitations of revisional jurisdiction
Although the revisional powers are broad, they are constrained by some limits. For example,
Where an appeal exists but no appeal is filed, usually, no proceeding by way of revision shall be entertained at the request of the party who might have appealed;
Revisional powers are not operative in regard to any interlocutory order passed in any appeal, inquiry, or trial;
The court exercising revisional powers is not permitted to transform an acquittal finding into a conviction finding;
A person may make only one revision application, either to the court of session or to the high court; if such a request is made to one court, no additional application from the same party will be heard by the other court.
Suo moto exercise of power
The high court cannot reject a revision on the technical grounds of limitation. The high court should use its suo moto revision power because it cannot permit irregularities and a miscarriage of justice to continue. Subsection (2) expressly prohibits the reconsideration of interlocutory orders. In the matter of Naresh Kumar v. Registrar (2008), the Punjab and Haryana High Court ruled in favour of the petitioner. The suo moto authority of revision does not extend to converting suo moto revision procedures into an appeal against acquittal and subsequently convicting the accused. The High Court should have reversed the acquittal ruling and remanded the case for retrial. The Supreme Court overturned the conviction decision and remanded the matter to the trial court for further proceedings in conformity with the law. The appellant was permitted to seek bail.
Section 397 read with Section 482 CrPC
The Supreme Court agreed with the legal argument in Dhariwal Tobacco Products Ltd v. State of Maharashtra (2008) that the existence of an additional option of criminal revision under Section 397 of the CrPC cannot be a valid reason to dismiss an application under Section 482 of the CrPC. However, in the case of Mohit alias Sonu v. State of Uttar Pradesh (2013), an opposite opinion was held that when an order under issue is not interlocutory in character and is amenable to the high court’s revisional jurisdiction, there should be a bar to using the high court’s inherent jurisdiction. Because of this dispute, these matters were sent to the Hon’ble Chief Justice for referral to a bigger bench.
A three-judge bench in Prabhu Chawla v. State of Rajasthan (2016) held that Section 482 starts with a non-obstante clause, which states, “Nothing contained in this Code shall be considered to restrict or actually impact the inherent jurisdiction of the High Court to make such orders as may be required to give effect to any order under this code, to stop the abuse of the procedure of any Court, or otherwise to safeguard the ends of justice.” Because Section 397 of the CrPC applies to all orders other than interlocutory ones, a contrary interpretation would restrict the availability of inherent powers under Section 482 of the CrPC to minor interlocutory orders. It was decided that the case of Mohit alias Sonu did not adequately articulate the law with respect to the High Court’s inherent power under Section 482 of the CrPC.
So it can be said that the power of the High Court under Section 482 CrPC cannot be applied in regard to interlocutory orders since the bar of Section 397(2) CrPC also extends to Section 482 CrPC: When Section 397(2) CrPC bans interference with interlocutory orders, Section 482 CrPC cannot be used to accomplish the same goal. In other words, because Section 397(2) CrPC prohibits interfering with interlocutory orders, recourse to Section 482 CrPC is not authorised. To set aside an interlocutory order, the prohibition in Section 397 CrPC shall prevail.
Recent judicial pronouncements on Section 397 CrPC
The State Of Gujarat v. Afroz Mohammed Hasanfatta (2019)
In this case, the Gujarat High Court overturned an order by a Chief Judicial Magistrate who had taken notice of the criminal offences on the grounds of the police’s second supplementary charge sheet and commanded the issuing of the process to the suspect. The bench of R. Banumathi and Indira Banerjee held that the High Court should not have gotten into the details of the case when it was still in its early stages. The Supreme Court stated that, when hearing a revision under Section 397 CrPC, the High Court does not act as an appellate court and does not have the power to appreciate the evidence except if the lower court’s decision is erroneous.
K Kuppuraj v. J. Thrilokamurthy (2020)
In the case ofK Kuppuraj v. J. Thrilokamurthy (2020), the Karnataka High Court held that even if an alternative opinion is available based on the facts, the court cannot appreciate the evidence and reach a different conclusion in exercising its power under Section 397 CrPC. The authority under Section 397 CrPC could be executed only under the following circumstances:
When the judgement under challenge is highly inaccurate,
When there is non-compliance with the legal provisions,
When a finding of fact influencing the decision is not supported by evidence,
When there is no consideration of the material evidence,
When the lower court has exerted its discretion unfairly or perversely and acted in excess of its authority or misused its power, resulting in a failure of justice.
Conclusion
The revisional jurisdiction is not intended to test the waters of what may occur in the trial. The revisional court must assess the accuracy, validity, or appropriateness of any decision inter se an order, as well as the uniformity of the lower court’s processes. While doing so, the revisional court does not encroach on the facts and evidence of the case for long; rather, it perceives the material only to satisfy itself about the constitutionality and propriety of the conclusions, sentence, and order and abstains from replacing its own conclusion based on an elaborate examination of evidence.
Frequently Asked Questions (FAQs)
Where can a court exercise its revisional jurisdiction?
Courts usually exercise revisional jurisdiction on the question of law. In the case of Amit Kapoor vs. Ramesh Chander (2012), the Hon’ble Supreme Court held that “normally, revisional jurisdiction should be exercised on an issue of law. However, when factual appreciation is concerned, it must fall into the category of situations that result in a contradictory conclusion. Ultimately, the power must be employed so that justice is served and the court does not misuse its authority. In such instances, mere fear or suspicion would not be adequate grounds for intervention.”
What happens when a revision petition is filed by a private party in response to an acquittal?
Such a petition necessitates a close investigation and an evidence review, but no appeal against the acquittal was filed by the state. The high court’s hasty disposition is not justified. As a result, the case must be remanded to the high court for a new hearing on the merits of the revision.
Ratanlal & Dhirajlal, The Code of Criminal Procedure. 23rd edition.
R.V. Kelkar’s CRIMINAL PROCEDURE. 6th edition.
Rahul’s IAS, The Code of Criminal Procedure.
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This article is written by Satyaki Deb, an LL.M. candidate from the Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur. This article deals with the case law-centric study of the various dimensions of Section 457, CrPC, which lays down the procedures to be followed by police upon seizure of property.
It has been published by Rachit Garg.
Table of Contents
Introduction
The police and various other investigative authorities routinely seize properties all over the country under various provisions of different statutes like the Indian Penal Code, 1860; Narcotic Drugs and Psychotropic Substance Act, 1985 (NDPS); Prevention of Food Adulteration Act, 1954, etc. These seized articles play a vital role in the investigations and in most cases, also play a significant role in the trial stages for the purpose of evidence. Since India’s investigation and the trial process generally moves very slowly and with thousands of such cases piling up, the seized properties generally pile up much faster than they can be disposed of. Moreover, due to the prolonged gathering of dust, most of these seized properties lose their economic value and are often misappropriated or sold for spare parts by unscrupulous police officials or third parties.
Chapter XXXIV (Sections 451–459) of the Criminal Procedure Code, 1973 (CrPC) deals with provisions for the disposal of seized property and is the most relevant portion of the Indian laws that has the answer to curb the hundreds of crores of rupees losses in national wastage of seized properties. This article deals with the various dimensions of Section 457, CrPC, which is a prime provision under this Chapter. In this regard, various other related provisions under this Chapter shall also be relevantly touched upon from the perspective of precedent case laws.
Meaning of property under Section 457 CrPC
Section 457 of CrPC envisages procedures to be followed by police upon seizure of property. So, it becomes pertinent to understand what the word “property” signifies herein. This Section and its parent Chapter XXXIV deal with the disposal of four kinds of properties. They are as follows:
Properties used in the commission of an offence.
Properties on which an offence has been committed.
Properties which have been produced before the court.
Properties which are in the custody of police or court.
Based on their sources, these properties can have sources like properties found while arresting a suspect/accused, properties found under suspicious circumstances with regards to the commission of a crime or properties allegedly stolen or robbed.
Section 457 CrPC
As briefly stated before, Section 457 of the CrPC deals with the procedure to be followed by police upon seizure of property. It is imperative now to study this Section with a magnifying glass. This provision replaced Section 523 of the old Criminal Procedure Code of 1898. The police need to comply with the procedure envisaged under Section 457 CrPC after they seize any property. According to this provision-
Sub-section (1) of this Section lays down that after the police have seized any property under the CrPC and if such property is not produced at the inquiry or trial stage in a criminal court, then the Magistrate is empowered with discretionary powers to issue orders that will ensure the disposal of such property or delivery of such property to the person entitled to its possession. In case the identity of the person entitled to the possession of the seized property is not known, then in such cases, the Magistrate may pass orders as he deems fit to ensure the proper custody and protection of such property.
Sub-section (2) of this Section states that if the identity of the person entitled to the possession of the seized property is known, then the Magistrate may at his discretion impose any conditions for delivery of such property to the entitled person. Even unconditional delivery to the entitled person is permissible under this provision if the Magistrate deems fit. In case the identity of the person entitled to the possession of such seized property is unknown, the Magistrate may order the seized property to be detained and issue a proclamation specifying the articles making up such property. Any person claiming such seized property can appear before the Magistrate and may claim such seized property after establishing his claim to it within a period of six months from the date of proclamation.
Case laws related to Section 457 CrPC
Following are some of the relevant case laws related to Section 457 CrPC:
M.Muniswamy v. the State of A.P. (1992)
In this case, the scope of the Magistrate’s power to pass orders as to the disposal or delivery of such property to the person entitled to such seized property was dealt with. This case has been discussed in relative detail as follows:
Brief facts of the case:
The Central Bureau of Investigation (CBI) had seized several documents, keys to the locker, and some cash under two seizure lists against one Sri Raghavayya under relevant provisions of the Prevention of Corruption Act, 1988. The accused wanted the CBI to return their seized documents, articles, and locker key. Starting at the CBI Special Court in Hyderabad, the matter reached the Hon’ble Supreme Court.
Issue:
The main question before the Hon’ble Court was whether the seized documents and locker key should be returned or not.
Judgement
The Hon’ble Court touched upon the nuances of not just Section 457 but also Sections 451, 452 and 456. They all fall under the same Chapter XXXIV and cannot be interpreted in isolation. The Hon’ble Court overturned Balaji v. State of A.P. (1976)and State v. Belquis Sultana (1985)in this case because these cases wrongly assumed the following-
That the courts get jurisdiction only if the seizure of property is reported by the police to the Magistrate and not otherwise.
That the court can pass orders with respect to the seized property only when the police produce the seized property in the court during an inquiry or trial.
That only the court inquiring or trying the offence can pass orders under Section 457.
That both Sections 451 and 457 deal with the power of Magistrates to deal with seized properties during/pending the inquiry or trial stage.
In cases where the seized property is not produced before the court by the police, Section 457 will be applicable to dispose of such property.
When the seized property has been otherwise produced before the court, the governing provision will be Section 451 and such seized property will be disposed of according to it.
Post the inquiry or trial stage, if the issue of disposing of seized property arises, then the governing section to dispose of such property shall be Section 452.
Thus, it can be stated that Section 457 applies to the disposal of any seized property at a stage other than or before the commencement of an inquiry or trial (eg: investigation stage), Section 451 applies to the custody and disposition of seized property pending trials, and Sections 452 and 456 deal with the disposition of seized property after trials. In other words, Section 457 needs to be read in association with the other provisions of Chapter XXXIV, and the phrase in Section 457 “such property is not produced before a Criminal Court during an inquiry or trial” does not indicate any stage of proceedings but merely qualifies the seized property.
After analysing the judgement, it can be stated that one of the prime reasons for such a contextual interpretation was that the police cannot have the leeway to seize property and not produce or report about the same. The police simply cannot dispose of seized property in any manner they like. The Hon’ble Court rightly held that any Magistrate can dispose of seized property under Section 457 and not necessarily the one who may inquire about or try the accused. Here, any Magistrate does not mean that the accused can cherry-pick Magistrates. Only the Magistrate who can inquire or try the accused or any Magistrate under whose jurisdiction the property has been seized is empowered to dispose of seized property under Section 457. Such a Magistrate need not wait for the police to report or produce seized property but can pass orders under Section 457 even when the interested parties approach such a Magistrate.
One pertinent point to note in this regard, as held in this judgement, is that the Magistrate needs to apply his judicial discretion considering all relevant aspects before delivering any seized property back to interested parties who have sufficiently proved their claims to such seized property. He needs to ensure by imposing conditions or otherwise that such disposal of the property must not hinder the course of justice and that such seized property’s return at the time of trial if required is ensured. Thus, given the circumstances, the petitioners were held entitled to the return of their seized documents and locker key.
Sunderbhai Ambalal Desai v. the State of Gujarat (2002)
In this case, the two-judge Learned Bench answered questions regarding the interpretation and mode of implementation of Sections 451 and 457. This is another classic case that shows us how the nuances of Sections 451 and 457 are intertwined and how expeditiously and judiciously a concerned Magistrate needs to exercise their underlying powers. Simply speaking, in this case, some of the police officers were mainly accused of misappropriation of seized articles (“mudammal” articles) from the police station’s “malkhana.” When the matter reached the Hon’ble Supreme Court, the following relevant points were held regarding disposals and procedures related to seized property:
Seized articles need to be submitted or reported to the Magistrate within one week of seizure.
Due bonds, security and guarantees should be taken by the Magistrate while disposing of the seized property to prevent such evidence from being lost, altered or destroyed.
Detailed ‘panchnama’ should be made before disposing of seized property.
Before disposing of seized property, photographs should be taken of seized property and such photographs should be attested or countersigned by complainants and accused persons as well as the person receiving custody of such seized articles.
Regarding seized vehicles, since there is no use in keeping such vehicles for long times in police stations, the Magistrate should pass appropriate orders immediately by taking necessary bonds, securities and guarantees that will ensure the return of the seized vehicle, if required at any point in time. This can be done pending the hearing of applications for the return of such seized vehicles.
If there is a case where the seized vehicle is not claimed by the owner or accused or insurance company or any other third person, then the Magistrate may auction off such seized vehicle. The order should be passed within a window of six months from the date of production of such seized vehicles in the court.
Regarding seized liquor, it was held that since there is absolutely no requirement to keep large quantities of liquor at the police stations, they should not be stored on and on for large periods of time at the police stations. Necessary samples for analysis should be taken and after necessary panchnama is made, such seized liquor should be disposed of promptly according to the order of the Magistrate.
Seized articles should not be kept at police stations for not more than 15 to 30 days and this should be ensured by the immediate actions of the Magistrate.
The rationale or objective behind such prompt and judicious disposal of seized property under Sections 451 and 457 will ensure the following objectives/purposes:
The owner of such seized articles will not suffer due to their misappropriation or prolonged non-use.
Public Exchequer’s money will be saved because the prompt disposal of the seized property will not require the court or the police to keep their prolonged safe custody.
If the panchnama of the seized articles is prepared properly, then such panchnama can be produced in evidence during trial instead of producing the seized articles.
The courts would be able to exercise their jurisdictions promptly and record evidence swiftly to prevent tampering of the articles.
General Insurance Council v. the State of Andhra Pradesh (2010)
In this case, further directions were given with respect to procedures and the disposal of seized property. The ones relevant to this article have been portrayed as follows:
Ordinarily, the release of seized vehicles should be made within 30 days from the date of the application.
Insurers may be permitted to make separate applications for the release of the recovered vehicles upon intimation of the same from the concerned courts.
The insurer would submit an undertaking or guarantee to remit proceeds from the sale or auction of seized vehicles if the Magistrate rules that the insurer is not the rightful owner of such seized vehicles. Personal bonds may not be insisted from the insurers considering the corporate nature of the insurer.
All state governments, union territories, and Director Generals of Police should ensure the macro implementation of the concerned statutory provisions and at the district level, the concerned Inspector Generals, Commissioners, and Superintendents of Police must ensure speedy disposal of seized vehicles.
If any petitioner or aggrieved party reports non-compliance, such erring officials will be dealt with iron hands.
Conclusion
Section 457 of the CrPC remained for a long while one of the least implemented provisions by the executive and these led to grievances of numerous aggrieved parties. The cumulative value of such losses ran into hundreds of crores of rupees. Primarily because of these broad and deep-running grievances, the Hon’ble Supreme Court, as depicted in the above precedent case laws, gave necessary instructions on the procedures and disposal of seized properties. These instructions were an absolute necessity, but their sporadic implementations somewhat neutralise the sound effects of these judgements, and this needs to change at the earliest.
Frequently Asked Questions on Section 457, CrPC (FAQs)
What happens when a person who has possession of property (seized) fails to prove his legal claim to such property?
In such a case, the Magistrate may order that such property shall be at the disposal of the state government and sold or auctioned by it. The concerned person shall have a right to appeal against any such order to the court to which appeals ordinarily lie from convictions by the Magistrate.
Is there any time limit for the production and release of seized property?
Whenever any property is seized by the police or other investigating authorities, it is the duty of the seizing officer or the concerned SHO to produce it before the concerned Magistrate, within one week of such seizure, and the court, after giving due notice to the concerned parties, is required to pass an appropriate order for its disposal promptly, ordinarily, within a period of one month of producing such seized property in court.
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This article has been written by Naveen Talawar, a law student at Karnataka State Law University’s law school. The article deals in detail with Order 41 Rule 27 of the Code of Civil Procedure, 1908, including its scope and provisions related to Rule 27, along with recent cases.
What are the circumstances under which additional documents can be admitted into evidence even at the appellate stage? This is an important aspect of procedural law. According to the Civil Procedure Code, 1908 (hereinafter “CPC”) the appellate court has the following powers: to render a final decision; to remand the case; to frame issues and refer them for trial; to take additional evidence or to order the taking of such evidence. Therefore, the court has the authority to take additional evidence at the appellate stage under Section 107(1)(d) of the CPC.
The general rule is that the appellate court should not look beyond the evidence presented in the lower court’s record and cannot take any additional evidence on appeal. However, Order 41 Rule 27 of the CPC makes an exception that permits the appellate court to take additional evidence in special circumstances. If the conditions outlined in this rule are found to be met, the appellate court may allow additional evidence.
Scope of Order 41 Rule 27 CPC
The scope of Order 41 Rule 27 of the CPC is very clear, as observed in Karnataka Board of Wakf v. Government of India (2004), which states that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that, despite due diligence, they were unable to produce such documents and such documents are necessary to enable the court to render a proper judgment.
The admissibility of additional evidence is not dependent on its relevance to the issue at hand, or on whether the applicant had an opportunity to present such evidence at an earlier stage or not. The true test is whether the appellate court can render judgment on the materials before it without considering the additional evidence sought to be adduced. Such a situation would only occur if the court determined that there was an inherent lacuna in the evidence or some other flaw after reviewing it in its present state. The appellate court is therefore only allowed to admit additional evidence in order to fill a lacuna in the existing evidence.
If the additional evidence sought to be introduced clears up any remaining questions about the case, has a direct and significant bearing on the central contention of the suit, and is clearly required to be recorded in the interest of justice, the application may be granted.
The appellate court is not entitled under Order 41 Rule 27 CPC to admit new evidence at the appellate stage, where it can render judgment even without such evidence. It does not entitle the appellate court to admit new evidence solely for the purpose of rendering a particular judgment. Ordinarily, the appellate court should not allow new evidence to be introduced in order for a party to raise a new point of appeal. Similarly, if a party who bears the burden of proving a particular point fails to discharge the burden, he is not entitled to a fresh opportunity to produce evidence because the court can, in such a case, pronounce judgment against him and does not require any additional evidence to do so. The provision does not apply when the appellate court can render a satisfactory judgment based on the evidence on record.
Principles
The basic principle for admitting additional evidence is that the party requesting it must be able to prove that, despite their best efforts, they were unable to introduce the additional evidence in the initial proceeding. Second, the party affected by the admission of additional evidence should be given an opportunity to rebut it. Thirdly, the additional evidence must be pertinent to the issue at hand.
Conditions
Order 41 Rule 27, of the Civil Procedure Code of 1908 specifies the conditions under which the court may permit parties to the appeal to present evidence at the appellate stage.
These conditions are:
If the trial court that rendered the decree refused to accept evidence that should have been accepted, or;
If the appellant is successful in proving that the evidence in question was not known to him, or;
If the party appealing is able to prove that, despite his best efforts, he was unable to produce the evidence when the trial court issued the decree being appealed;
If an appellate court requires a document be produced or a witness be questioned in order to reach a decision, or;
If the appellate court requests the production of any documents or the cross-examination of any witnesses for any other substantial cause.
Provisions to rule 27
In the case Union of India v. K.V. Lakshman (2016), it was stated that Order 41 Rule 27 of the Code is a provision that enables the party to file additional evidence at the first and second appellate stages. The court should permit the party to file such additional evidence if the party appealing is able to persuade the appellate court that there was a valid reason for not submitting such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties that are the subject of the lis. After all, the court has to provide the parties with substantial justice. The fact that the court permitted one party to submit additional evidence in an appeal does not automatically imply that the court has decided the case in his favour and accepted that evidence. In fact, the appellate court must give the opposing party a chance to file additional evidence as a rébuttal once the additional evidence has been permitted to be included in the record.
The lower court refused to admit the evidence
According to Order 41, clause (1)(a) of Rule 27, the appellate court must determine whether the trial judge erroneously rejected the respondents’ request to have their evidence recorded and, as a result, whether it was appropriate for the appellate court to order the recording of additional evidence.
It was observed in K. Venkataramiah v. Sitaram Reddy (1963) that the occasion for admitting additional evidence under Rule 27 only occurs after the start of the appeal hearing and after a review of the existing evidence when some inherent issues or defects become apparent. Such evidence can only be admitted if the Appellate Court requires it. The court may require it to issue a more satisfactory judgment.
The Supreme Court observed in Shivajirao Patil v. Mahesh Madhav (1986) that the basic principle for admitting additional evidence is that the party requesting it must be able to prove that, despite their best efforts, they were unable to introduce the additional evidence in the initial proceeding. Second, the party affected by the admission of additional evidence should be given an opportunity to rebut it. Thirdly, the additional evidence must be pertinent to the issue at hand.
Exercise of due diligence
It was observed in State of Karnataka v. KC Subramanya (2013) that a party can seek the liberty to present additional evidence under Order 41, Rule 27(1)(aa), only if the evidence sought to be presented could not be presented at the trial stage despite the exercise of due diligence and that the evidence could not be presented because it was not within his knowledge and therefore fit to be presented by the appellant before the appellate forum.
Discretion to be exercised is limited by the provisions
Under Order 41 Rule 27(1)(b) CPC, the power of the appellate court is limited by the restrictions laid out in the rule’s actual language. To be able to issue the judgment, the court must determine with certainty that it is truly necessary to accept the documents as additional evidence.
In Municipal Corpn. of Greater Bombay v. Lala Pancham (1964), it was stated that the power under clause (b) of Rule 27 cannot be used to supplement the evidence already on record unless one of the grounds listed in the provision is met. If the documents in the file are pertinent to the question of fraud, the court may proceed to consider them and make a decision.
The appellate court’s discretion to receive and admit additional evidence is not arbitrary but is judicially limited by the limitations specified in Order 41 Rule 27, CPC. If the additional evidence is admitted against the rules governing the admission of such evidence, it would be an improper use of discretion, and the additional evidence would have to be disregarded and the case would have to be decided without it. Order 41 Rule 27 states that the appellate court must request the evidence in order to render a decision.
In Natha Singh v. Financial Commr., Taxation, Punjab (1976), it was ruled that the ability of the appellate court to render a decision on the materials at hand without considering the additional evidence sought to be introduced is the true standard to be used when handling applications for additional evidence.
Recording of reasons for admission of additional evidence
The provision requiring an appellate court to record the reason for the admission of additional evidence has been described as advisory and not imperative. The purpose of Rule 27(2) is clearly to keep a clear record of what weighed with the appellate Court in allowing the additional evidence to be produced, whether this was done on the ground,
that the Court from which the appeal was made had rejected evidence that ought to have been admitted,
that it had allowed the evidence because it needed it to render judgment on the appeal, or
that it had allowed it for any other substantial cause.
The recording of the reasons is necessary and helpful to the Court of Further Appeal in determining whether the Appellate Court’s decision was made in accordance with the law when there is a further appeal from the Appellate Court’s decision. Therefore, it is necessary to treat the failure to record the reason as a serious flaw. Even so, the clause is optional, and the High Court’s failure to note the rationale behind its decision to accept additional evidence does not invalidate this admission.
When the application for additional evidence cannot be allowed
In the following circumstances, the application for additional evidence is not allowed:
If more evidence were allowed to be introduced to aid a plaintiff to establish a new case in an appeal, there would be no end to the legal dispute. Instead, cases should not be remanded to give parties the opportunity to establish new claims or to strengthen existing ones by calling additional evidence.
Additional evidence is not allowed when there is no compelling reason to do so and no attempt is made to present any evidence in any court up to and including the Supreme Court until the hearing is over.
It is not acceptable to introduce new evidence to fill in gaps or restore weak areas in the case.
An appeal for amendment of the written statement introducing a new case and adducing additional evidence will be denied.
Despite due diligence, documents were beyond the control of the party and should not have been allowed because the appellant’s objection in the application was not stated.
Recent cases
In Sri Gopal Krushna Panda v. Manager (2019), the issue of whether the appellate court can take into account the application filed under Order 41 Rule 27 CPC for admitting additional evidence before hearing the appeal was taken into consideration. The Court cited an earlier ruling in Sankar Pradhan v. Premananda Pradhan (dead) and Others, (2015), in which it was stated that under clause (1)(b) of Rule 27, additional evidence can only be admitted where the appellate court “requires” it (i.e., finds it necessary).
The court noted that the application for additional evidence can be taken into consideration at the time of the hearing on the appeal. The court must make the request, regardless of whether it is necessary for the court to be able to issue a judgment or for any other substantial cause. Wherever the Court follows this procedure, Rule 27(2) requires it to record its reasonings.
In Sanjay Kumar Singh v. the State of Jharkhand (2022), it was observed that where the additional evidence sought to be adduced removes the question mark hanging over the case, the evidence has a direct and significant bearing on the suit’s main issue, and the interest of justice clearly necessitates its admission to the record, such an application may be granted. Whether the appellate court needs the additional evidence to enable it to issue a judgment or for any other significant reason of a similar nature is one of the circumstances in which the production of additional evidence by the appellate court is to be taken into consideration under Order 41 Rule 27 CPC.
Conclusion
As a general rule, the appellate court should not admit additional evidence in order to decide an appeal, and the parties are not permitted to present additional evidence, whether oral or documentary, in the appellate court. The Code of Civil Procedure, 1908, however, under Order 41 Rule 27 of the CPC, gives an appellate court the authority to take additional evidence subject to certain conditions; a fortiori, the power is discretionary and must be exercised on sound judicial principles.
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The article is written by Tushar Singh Samota, a law student from University Five Year Law College, Rajasthan University. The concept of Section 375 of the Indian Penal Code, 1860 is discussed in this article. The conversation will be bolstered by discussing the provision of capital punishment for rape, as well as its related judicial decisions.
Rape is derived from the Latin term rapio, which implies forced seizing. Rape is a type of sexual assault that involves sexual intercourse with another person without his or her permission. It is one of the most severe crimes against an individual that affects society. It is a heinous crime that brings shame to the entire human species. Rape is a violation of the victim’s fundamental rights, as it violates Article 21 of the Indian Constitution. Apart from this, it violates the victim’s body, mind, and privacy, as it is the most ethically and physically repugnant crime in society.
In India, rape is the fourth leading crime against women. According to the National Crimes Records Bureau’s (NCRB) 2021 annual report, 31,677 rape cases were filed in India in the year 2021, or around 87 rape crimes each day on average were recorded. Among this data, Rajasthan has the largest number of rape cases in the country, followed by Madhya Pradesh and Uttar Pradesh. Since a substantial number of incidents go unreported in India, the country has been labelled as having one of the lowest per capita rates of rape recorded. India’s predicament is worrisome. For the same reason, India has been labelled as the most hazardous country for women. However, in recent years, there has been an increase in the willingness to report rape crimes since multiple episodes of rape have gained considerable media exposure and have sparked public outrage, finally leading to the Government of India amending the rape laws.
The Nirbhaya Case broadened the definition of rape by including penetration in any region of a woman’s body. The author attempts to discuss Section 375 of the Indian Penal Code, 1860 by examining its objectives and essentials in this article. The article will also discuss capital punishment for rape by going over all of its punishment provisions.
What is Section 375
Section 375 of the IPC,1860 amended by the Act of 2013 defines rape as follows: A man is considered to commit ‘rape’ if he,
Penetrates his penis to any extent into a woman’s vagina, mouth, urethra, or anus, or induces her to do so with him or any other person; or
Inserts, to whatever extent, any item or portion of the body other than the penis into a woman’s vagina, urethra, or anus or forces her to do so with him or another person; or
Manipulates any portion of a woman’s body to produce penetration into the vagina, urethra, anus, or any other part of her body, or forces her to do so with him or another person; or
Places his mouth near a woman’s vagina, anus, or urethra or forces her to do so with him or another person when the situation fits any of the following seven definitions:
Against her wishes.
Without her permission
With her permission, when her consent has been gained by putting her or anyone in her care in danger of death or injury
With her permission, when the man is aware that he is not her husband and her permission is provided because she believes he is another man to whom she is or considers herself to be lawfully married.
With her permission where, at the time of giving such consent, she is unable to grasp the nature and consequences of that to which she consents due to unsoundness of mind or drunkenness or the administration by him directly or via another of any stupefying or unwholesome substance.
With or without her consent while she is under the age of eighteen.
When she is unable to express permission.
Explanation I: The vagina includes the labia majora in this part.
Explanation 2: Consent is defined as an unequivocal voluntary agreement when a woman signals her intent to participate in a certain sexual act using words, gestures, or any other kind of verbal or nonverbal communication with the proviso that a woman who does not physically reject the act of penetration should not be considered to have consented to the sexual activity merely because she does not physically oppose it.
Following the Delhi Gang Rape case in 2012, various laws were altered, including raising the consent age from 16 to 18. Even the concept of rape has been enlarged; presently, penetration entails penetration to any extent, according to this provision. For rape cases, the government has also developed a fast-track judicial system.
Fast-track judicial system
Fast track courts (FTCs) were initially proposed by the Eleventh Finance Commission in 2000, with the goal of significantly reducing, if not eliminating, pendency in the district and subordinate courts during the following five years. The Centre provided Rs 502.90 crore in response to the Finance Commission’s report to establish 1,734 more courts in various states over a five-year period. Later that year, the central government discontinued funding for fast-track courts. This decision of the government was challenged in the Supreme Court in 2011, but the Apex court stated that it was up to the states to keep or close these courts based on their financial circumstances.
Following the gang rape and murder in December 2012, the Union government established the ‘Nirbhaya Fund,’ revised the Juvenile Justice Act (2015), and established fast-track Mahila Courts. In 2019, the government authorised a proposal to establish 1,023 fast-track special courts (FTSCs) around the country to expedite the resolution of ongoing rape cases under the Indian Penal Code (IPC) and offences under the Protection of Children from Sexual Offences Act (2012). FTSCs are specialised courts that are meant to deliver justice quickly. They have a superior clearing rate as compared to ordinary courts and hold fast trials. It also increases the foundation for deterrents for sexual offenders.
Section 375 exceptions
The Indian Penal Code, 1860, contains two exception clauses, the first of which states that performing a medical procedure or intervention does not constitute rape and the second exception states that engaging in sexual activity with one’s wife who is not under the age of eighteen does not constitute rape.
The Indian Penal Code, 1860 was amended later to raise the age requirement from 15 to 18 years. In Independent Thought v. Union of India (2017), the Supreme Court decided that having sex with a girl under the age of 18 constituted rape, regardless of whether or not she is married. According to the Court, Exception 2 creates an unnecessary and artificial distinction between married and unmarried female children and has no reasonable connection to any specific aim sought.
This arbitrary difference violates both Article 15(3) and Article 21 of the Constitution’s spirit and ethos. It also contradicts the concept behind various laws, such as the female child’s physical integrity and reproductive choice.
The objective of this Section 375
Section 375 of the IPC discusses rape and related activities if committed by a man, which can subject him to punishment under Section 376 of the IPC. Section 375 was in the IPC at the time of its introduction, but its scope was expanded following the Criminal Law Amendment of 2013. Previously, penetration of the penis into a woman’s vagina, urethra, anus, or mouth was deemed rape. However, it is now deemed rape whenever a male enters any instrument or other part of his body into a woman’s vagina, urethra, anus, or mouth. The goal of Section 375 of the IPC may be understood by Justice Krishna Iyer’s statements in the case of Rafiq v. State of UP (1980) when he stated that a murderer destroys the body of a victim, but a rapist kills the spirit. As a result, rape is a more terrible crime against humanity than murder. Section 375 is critical in bringing justice to the women who have been robbed of their souls by those offenders.
Essentials of this Section
To hold a person guilty of Section 375, the following essentials are required:
Acts have been done against her will
If someone does an act that is against the woman’s will, then that person will be held liable for rape as held in the case ofHimachal Pradesh v. Mango Ram (2000). The Supreme Court in this case ruled that the girl attempted to oppose the accused from doing the act, but the accused overcame her, and the act was conducted against the victim’s will, making the accused accountable for rape.
The act was committed without her permission
According to Section 375(2), engaging in sexual activity against the women’s will constitutes the crime of rape. If the consent is not given voluntarily, the other party may be held criminally liable as held in the case of The Queen v. Flattery (1877). In this instance, the girl was in poor condition and went to the accused’s clinic, where she was recommended to have surgery, which she accepted. During the operation, the accused had sexual relations with the girl. The court ruled that the consent was invalid and acquired via mistake. As a result, the accused was charged with rape.
Consent gained by deception, fraud, or mistake
If consent is acquired during sexual interaction with a woman by deception, fraud, or mistake, such consent won’t be considered legitimate, and the accused may still be held accountable for the rape offence. In the case of Chandigarh Union Territory v. Bhupender Singh (2008), the prosecutrix and the accused engaged in sexual activity, which caused the prosecutrix to get pregnant and have an abortion. Later, she learned that the defendant was already married and had children and that during the encounter, he had broken his pledge. She filed a lawsuit against the defendant. The court ruled that because the accused had sexual intercourse with the victim while under the influence of deception or fraud, the victim’s consent was invalid, and the accused was found accountable under Section 375.
Consent was gained when the subject was inebriated, drunk, or under the influence of drugs or alcohol
Consent gained by threatening a person of interest with death is not legitimate consent
If a woman’s interested person, such as her children, parents, or spouse, is threatened with death and her consent is gained in such a scenario, it cannot be considered genuine consent as held in the case of Prakash v. State of Maharashtra (1992). In this case, the police officer and a businessman detained the husband of the victim, where her consent was obtained to have sexual intercourse. The court ruled that permission obtained by the woman is not valid if a person of her interest is threatened with harm or death. As a result, the police officer and the businessman were held responsible for the offence.
Females under the age of eighteen, with or without her consent
Sexual intercourse with a woman, with or without her consent, while she is under the age of 18 constitutes rape. A woman under the age of 18 is deemed incapable of consenting to sexual intercourse. The Criminal Law (Amendment) Act of 2013 raised the consent age from 16 to 18.
In the case of Harpal Singh & others v. State of Himachal Pradesh (1980), the prosecutor, a little girl under the age of 16, was sent by her mother to see her sick aunt in the village. While she was leaving, the accused approached her and informed her that her brother was ill at the clinic. She raced after him, and he along with two others locked her in a room. Following that, they had sexual relations with her against her consent. She was later rescued by her family, who chose to remain silent. The incident was later reported in a newspaper, and the police launched an investigation. The accused said that the girl was used to sexual intercourse and consented to it.
The Supreme Court found sufficient evidence to indicate that she was under the age of 16 at the time of the sexual encounter, and so her consent was invalid. Thus, Section 376 of the Indian Penal Code was invoked to charge the accused with rape.
Females who are unable to articulate consent
In the case of Tulsidas Kanolkar v. Goa State (2003), the victim was mentally ill. The accused took advantage of her mental state and engaged in sexual relations with her. No one knew about it until the victim’s family discovered she was pregnant. When asked who had taken advantage of her, she pointed the finger at the accused. The case was brought against him, and he pleaded guilty by consent in the form of acquiescence to the conduct. It was determined that the accused took advantage of the patient’s mental disability and helplessness.
In such a case, there is no need for consent because a mentally challenged girl cannot offer consent, and submitting does not indicate permission, which can be owing to fear, tainted by coercion, or impaired due to mental impairment. The culprit was sentenced to ten years in jail and fined Rs. ten thousand.
The Committee and Amendment
The Indian Criminal Law (Amendment) Act, 2013, also referred to as the Nirbhaya Act, was passed by the Lok Sabha on March 19, 2013, and the Rajya Sabha on March 21, 2013. It modifies the Indian Penal Code (1860), Indian Evidence Act (1872), and Code of Criminal Procedure (1973) regarding laws relating to sexual offences. The Bill was approved by the President on April 2, 2013, and it became effective on April 3, 2013. Millions of Indians who had earnestly wished for progressive and comprehensive regulations on sexual offences have had their aspirations shattered by the Act’s implementation. While the Act enacted certain much-needed remedies, it overlooked several others.
The Bill was signed into law by India’s President, Pranab Mukherjee, in response to the protests in the Nirbhaya rape case in 2012. Following the occurrence, there was widespread public outrage, with thousands taking to the streets to protest the state’s indifference to sexual crimes and asking that improvements be made to current legislation. In reaction to the gang rape, on December 24th, 2012, a Verma Committee was formed, chaired by Justice (Retired) J.S. Verma, former Chief Justice of India. This Committee was established to review the legislation about sexual assault against women. Gopal Subramanium, a former solicitor general, and retired Judge Leila Seth made up the other two members of the committee. Within a fortnight, it collected over 70,000 answers from the general public and produced its report in less than a month. Several suggestions were made by the Committee.
Following that, certain changes were made to Section 375 of the Act to provide stricter penalties for sexual crimes and to define sexual assault. Additionally, the provision makes it clear that the term ‘penetration‘ refers to ‘penetration to whatever extent‘ and that physical resistance is irrelevant to determining whether a sexual assault has occurred. Except in very extreme circumstances, the penalty is incarceration for a minimum of seven years, with the possibility of life imprisonment, as well as a fine. When circumstances are severe, the penalty is strict imprisonment for a time that must not be less than 10 years but may go as far as life imprisonment, as well as being subject to a fine.
Amendments made to Section 376 following the 2012 Delhi gang rape case
Following a horrific gang rape of a girl in Delhi in 2012, the Verma Committee was created, and its recommendations resulted in substantial rape legislation revisions. Some proposals were made like introducing marital rape and not needing sanction for the prosecution of armed personnel. However, the law altered in the following areas:
The Act was amended to include Section 114A of the Indian Evidence Act, 1872, which stipulates that it is necessary for the victim of a sexual offence to indicate before the court in her testimony that she did not consent to the sexual intercourse in order to infer the absence of consent in the case.
Prohibiting queries regarding the victim’s past sexual experience or immoral character during cross-examination.
Ignoring the question of prior sexual experience, and
Other procedural issues in the Code of Criminal Procedure, 1973, about an investigation by female police officers, video recording of statements before magistrates, the time limit for completing an inquiry, the need for trial procedures in camera, and so on.
The Kathua Rape Case and the Criminal Law (Amendment) Act of 2018
The Criminal Law (Amendment) Act, 2018, revised Chapter XVI of the Indian Penal Code, 1860, to establish stiffer punishments for rapists, particularly those targeting girls aged 12 to 16 years. This was done in reaction to widespread indignation over the alleged gang rape and murder of an eight-year-old girl in Rasana hamlet near Kathua, Jammu & Kashmir in the case of Mohd. Akhtar v. The State Of Jammu And Kashmir (2018), also known as the Kathua rape case. With the advent of this amendment following changes were introduced:
Rape against a woman under the age of 12 now carries a fine and/or rigorous imprisonment for 20 years or life imprisonment or death.
Gang raping a minor under 12 is now punishable with a life sentence in prison, a fine, or death.
Rape of a woman under the age of sixteen is punishable by up to 20 years in jail or life imprisonment.
The individual will be imprisoned for the rest of his or her natural life if awarded life imprisonment.
For the rape of a female above the age of 16, the minimum punishment is ten years in jail.
Requirements for establishing guilt in rape cases
The victim must go through a protracted investigative procedure and submit to several tests to establish the defendant’s guilt of rape. The procedure is complicated. However, it is crucial to establish the rapist’s guilt. The methods used to gather, evaluate, and use to establish the guilt of rapists are as follows.
Investigation and assessment of the attacker
No one should reveal the name or other information that might reveal the identity of any individual against whom a rape violation has been committed vide Section 228A of the Indian Penal Code. Anyone who divulges the identification will be penalised with either type of jail for a duration that may last up to two years and will also be subject to a fine.
In addition, Section 53 of the Criminal Procedure Code mandates that any examination of the female must be performed by or under the direct supervision of a registered female medical professional exclusively. As a result, these considerations should be kept in mind when conducting an investigation.
Tests for establishing guilt in rape cases
In rape cases, a comprehensive examination of the evidence collected from the scene of the occurrence, as well as medical testing, must be undertaken to convict the rapist. The methods are as follows:
The filing of an FIR
It is one of the most crucial measures in showing guilt. To begin the criminal justice process, an FIR must be filed at the local police station.
The location, date, and time of the offence
The victim must provide the female officer with complete information about the location, date, and time of the offence.
The victim’s mental condition
Before taking the victim’s statement, the female medical professional should assess her mental health, determine whether she is in a healthy frame of mind to speak freely, and determine whether she has any physical injuries.
Victim’s statement
The victim must provide all information necessary to prosecute the rapist, including details on how the rape occurred if the victim was related to the rapist, and other pertinent information.
The victim’s consent
As the entire case hinges on a woman’s consent, this is one of the most critical and crucial parts of any rape case. The woman must reveal whether she gave permission voluntarily or under duress, such as a death threat. In Tulsidas Kanolkar’s case, the victim was mentally ill, and the accused raped her. As a result, the Court concluded that the accused took advantage of her mental state. Section 375 of the Indian Penal Code clearly states that permission gained owing to mental illness/unsoundness of mind is not consent. It equates to rape.
Victim’s age
Determining the victim’s age is crucial because rape occurs when a husband rapes his wife if she is under 15 years old. The husband is not permitted to engage in sexual activity with his wife if she is under the age of fifteen. If the woman is younger than 18, it is also considered rape, whether permission was given or not. Asifa Bano, an 8-year-old girl from Kathua, was gang raped by some of the men in the Kathua Rape Case. The Court ruled in this instance that it was a clear case of rape since it makes no difference whether the girl consented or not because sexual intercourse with a woman under the age of 18 constitutes rape.
An eyewitness account
Another crucial part of the inquiry is the testimony of any eyewitnesses. As a result of the testimony, it is easier to determine whether or not rape occurred.
Medical Exam
Following the filing of an FIR, witnesses are medically examined for evidentiary purposes. This examination aids in determining whether the claimed accused committed the rape or not.
Examined clothing
The victim’s clothes are often collected and submitted for forensic examination to detect traces of DNA and identify the accused. The presence of sperm marks on the garments is a significant factor in determining the rapist’s guilt. Furthermore, the garments are examined to see whether there are any blood or saliva markings on them.
Fingernail sanding
The collecting of fingernail scrapings is also significant in determining the rapist’s guilt since it may leave behind foreign DNA or fibres under the victim’s fingernails.
Physical harm to the body
The injuries on the body assist in grasping the intensity of the violence committed and the force used on the victim, etc. The victim in Mukesh & Anr v. State for NCT of Delhi & Ors (2017), was gravely hurt. The doctor examined her after the rod was placed in her private areas and discovered that just 5% of her intestines were still inside of her. Therefore, it was clear from the injuries that she had been raped.
Sighting of items
At this stage items such as clothing, footwear, carpets, pillows, hair, saliva, semen stains, etc. are sent to a lab for analysis and DNA testing.
Two-finger rule
It is a test to determine the laxity of the vaginal muscles and whether or not the hymen is stretchable. It is a test in which the doctor inserts two fingers into the victim’s vagina to determine whether or not intercourse has occurred and whether or not she is sexually active. However, in the case of Lillu v. the State of Haryana (2013), this test was found to be illegal and a violation of her privacy, bodily and mental integrity, and dignity. As a result, it is not performed in India.
As a result, these are some of the requirements for proving culpability in rape cases in India.
Punishment
Section 376 establishes penalties for the crime of rape. The Criminal Law Amendment Act of 1983 significantly modified this clause. While subsection (1) deals with the rape penalty, subsection (2) deals with unique cases in which rape has been committed but in a more severe manner.
Subsection 1 of Section 376 specifies that anybody who commits rape will be sentenced to harsh imprisonment for a minimum of seven years and a maximum of life imprisonment, as well as a fine. Whereas subsection 2 as previously stated, deals with 14 different types of rape scenarios. Whoever commits rape in these circumstances will be sentenced to a minimum of ten years in jail and a maximum of life imprisonment. The following scenarios have been identified where rape is perpetrated:
Police officer: When a police officer rapes a woman while she is in his custody, the custody of another police officer under his command, or inside the boundaries of the police station to which he has been assigned.
Public servant: When a public servant rapes a woman in his care or the custody of a public servant subordinate to him.
Armed forces: When a member of the armed forces commits rape while deployed.
A member of the jail’s management or personnel.
A member of the hospital’s management or personnel.
Individuals in a position of power, control, or domination.
The victim’s relative, guardian, or instructor.
Engages in rape during community conflict.
Harasses a pregnant woman.
Commits rape on a woman under the age of 16.
Commits rape on a woman who is unable to agree.
Repeatedly rapes the same woman.
Penalties for resulting in death or a vegetative state
If a person violates a law that is punishable under Section 376’s subsection (1) or subsection (2) and inflicts harm on a woman during the violation, and thus results in her demise or puts the woman in an ongoing vegetative state, then that person is subject to punishment under Section 376A.
In the aforementioned situations, he will be subject to a penalty that includes strict incarceration for at least 20 years and life imprisonment. Under this provision, ‘life imprisonment’ means confinement for the balance of the offender’s natural life. As it is a cognizable, non-bailable, and non-compoundable offence, the Court of Sessions will try the case.
Sexual harassment during separation by husband
When a husband has sex with his wife when they are separated, whether by a divorce judgment or not, Section 376B lays out the consequences. The following elements need to be present for this Section to be applicable:
The woman shall not reside with her husband;
They must be separated by a court order or by legal means;
The husband must have engaged in sexual activity;
It must have occurred without her permission.
Thus Section 375 defines sexual intercourse as any of the behaviours listed in clauses (a) to (d). The punishment offered for this Section is as follows:
A person found guilty by this provision faces a sentence of imprisonment that must not be less than 2 years and may not exceed 7 years, as well as a fine. The fine must be accepted accordingly. Since it is a cognizable offence but only upon the victim’s complaint thus, it is non-bailable and non-compoundable. The Court of Sessions will hear this matter.
Being employed by the government serving as a superintendent or
Manager of a jail, remand facility, or other facility used for detention; or
Managing or working for a hospital;
exploits his position by trying to persuade or entice any woman who is in his care, under his supervision, or present on the premises to engage in sexual activity with her, even if rape is not involved, he faces a prison sentence of at least five years and up to 10 years, as well as a fine. In this section, sexual intercourse refers to any of the behaviours listed in Section 375’s clauses (a) through (d).
In this section’s explanation, labia majora is included in the term ‘vagina’. For this Section, when referring to a jail, remand home, another place of confinement, or a women’s or children’s institution, ‘superintendent’ includes anybody who has power or influence over the inmates and finally the terms ‘hospital’ and ‘women’s or children’s institution’ have the same meaning as in Explanation to sub-section (2) of Section 376.
This provision is cognizable, non-bailable, non-compoundable, and triable in the Court of Sessions. The term ‘custody’ under Section 376C implies guardianship that must be legal. It must occur as a result of some laws or custody granted by a court of law or otherwise. Furthermore, it was determined that intercourse must take place in a location where the woman was detained to be covered by this clause. Because the intercourse did not take place within the confines of the school, the requirements of this Section are not met.
Gang rape
Section 376D outlines the penalties for gang rape. If a woman is raped by one or more individuals constituting a group acting in furtherance of a common aim, each of those persons is judged to have committed the rape offence. It is cognizable, non-bailable, non-compoundable, and triable before the Court of Sessions.
The punishment for this offence is as follows: anyone found guilty of an offence under this provision will face a sentence of at least 20 years in prison, with the possibility of life imprisonment. The term ‘life imprisonment’ refers to confinement for the rest of a person’s natural life. A fine will also be imposed on him.
The proviso of this Section states that the fine levied must be appropriate in order to cover the victim’s medical bills and rehabilitation and any fine levied in accordance with this Section must be paid to the victim.
Capital punishment
When we hear the phrase capital punishment, the first thing that springs to mind is what it is and why it is necessary. The capital penalty, commonly known as the death penalty, is a legal process in which a person is executed as a punishment for a crime by the state. It is only used in the rarest of rare circumstances, i.e. when the offence is of such a type that it cannot be vitiated without the death sentence.
It differs from other penalties in that it is irrevocable. A guy who has been executed for a crime cannot be brought back to life. It is now done in 58 different nations. The legality of capital punishment has been called into doubt multiple times in India. There is disagreement among judges on the use of the death penalty, as it violates reformative philosophy, which is the foundation of penalties in India. According to courts in India, it contradicts Articles 19, 20, and 21 of the Indian Constitution. However, it is acceptable since it is vital to give the death sentence for offences such as waging or attempting to wage war against the government of India, murder, dacoity with murder, criminal conspiracy, etc.
But since its introduction in the Indian judicial system, the Supreme Court has deliberated extensively on the actual meaning of life imprisonment. In the case of Gopal Vinayak Godse v. State of Maharashtra and Others (1961), the Supreme Court concluded that unless the sentence of life imprisonment was mitigated or remitted by competent authorities by applicable criminal provisions of the IPC or CrPC, a prisoner condemned to life imprisonment is compelled in law to spend the whole period in jail.
The issue was questioned again in 1976 in the case of the State of Madhya Pradesh v. Ratan Singh & Ors. (1976), the court ruled that a life sentence does not automatically expire after 20 years in jail, including remissions. The guidelines in the Jail Manual or the Prison Act of 1894 could not take precedence over the criminal provisions of the IPC. The relevant authority has the power to commute either the entire or a portion of the sentence. If it chooses not to commute the sentence, no writ may be used to free the prisoner.
A prisoner condemned to life imprisonment may be considered for remission by authorised authorities, but they have no right to be freed after serving a definite time of imprisonment, as determined in Mohd. Munna v. Union of India & Ors (2005). The petitioner, in this case, argued that he should be freed from jail after serving 21 years and that he should be compensated for his purported imprisonment over the 14-year limit.
The court dismissed the appeals, ruling that there is no provision in either the IPC or the CrPC requiring a prisoner condemned to life imprisonment to be freed after 14 years in jail. Remission cannot be claimed as a right by convicts serving life sentences.
Rape and capital punishment
In Muslim-majority nations, the punishment for rape is instant death. In situations of rape, capital punishment is a contentious subject in India. In Laxman Naik v. State of Orissa (1994), a 7-year-old girl was sexually abused by her uncle and the Court determined that the victim’s injuries were sufficient to demonstrate the severity with which the rape and murder were conducted, and the perpetrator was sentenced to death.
The Nirbhaya Gang Rape case, also known as the Delhi Gang Rape case, is a well-known example of capital punishment. People’s outpouring of rage and sadness in the aftermath of the rape and murder gave birth to expectations for change in India. In this instance, the Supreme Court ruled that the severity with which the act was perpetrated cannot be overlooked, and there is no hope of redemption. Hence the accused should be hanged in such cases.
The Indian government established an ordinance that provides for the death sentence in cases of rape that results in death or leaves the victim in a ‘persistent vegetative condition.’ It is still debatable whether or not the accused of rape should face the death penalty.
Loopholes in this Section
Section 375 read with Section 376 of the Indian Penal Code, 1860 contains several flaws, which is why the legislation has so far failed to reduce the rising number of rape cases in India’s expanding country. Three notable flaws in these clauses that have existed since 1860 are highlighted below.
The term ‘rape’ has a limited meaning
‘Sexual intercourse by a man with his wife, the wife not being under 15 years of age, is not rape,’ says Section 375 of the Indian Penal Code, 1860, which has an exemption clause that includes some pretty antiquated notions. By Section 376 of the Indian Penal Code, rape is punishable by imprisonment of any kind for a term of not less than seven years nor less than life or a term of up to ten years, as well as a fine, unless the victim is the rapist’s wife and she is not under the age of twelve, in which case he should be punished by imprisonment of any kind for a term of not less than two years, fine, or both. Given the current scenario, it is vital to modify human conceptions and give the notion of rape a new depth.
Almost all offences should have precise interpretation rules in place to ensure that there are no loopholes or potential for unfairness in the social context. The recent change in the definition of rape is due to an increase in such behaviour and a more liberal interpretation of the law.
Marital rape: a contentious issue
This idea is based on Exception 2 of Section 375 of the Indian Penal Code, which states that any sexual act conducted by a man on his wife, even if done without her permission, does not constitute rape as long as she is not a minor. In the case of Subhra Chakraborthy v Bhodhisathwa Gautam(1995), the Supreme Court ruled that rape is a violation of basic human rights as well as a violation of the victim’s most precious fundamental right. A married woman enjoys the same rights as a single woman, including the right to privacy and the freedom to govern her own body. These rights cannot be diminished in any manner by marriage.
If data in this respect are considered, 18% of Indian women are unable to tell their husbands ‘no’ when they do not want to engage in sexual intercourse with them, according to the National Family Health Survey 5 (2019-2021) research. According to the survey, more than one-fifth of married women in India are unable to say ‘no’ to their spouses when they do not want to engage in sexual intercourse with them. With such appalling figures and contradicting legal interpretations, all that can be expected in this area is progressive and sensible thinking in India about marital rape.
Need for legal acknowledgement of adult male rape victims in India
Recognizing male sexual assault victims as a remote reality has been disregarded by portraying sexual violence as a female issue. The lack of legal action against male sexual victimisation is mostly attributable to a reduction in reporting of male sexual violence and victims’ unwillingness to come forward. If a man is sexually attacked by another man or any such unnatural offence occurs Section 377 of the Indian Penal Code, 1860 applies; but, if he is assaulted by a woman, there is no specific legal provision.
It is vital to pay particular attention to the definitions, classifications, and forms of sexual victimisation that must be changed to reduce gender discrimination.
Case laws on the death penalty
Surendra Koli v. State of UP, (2011)
One of the surprising updates for Indians in 2007 was Nithari Kand. In the case of Surendra Koli v. State of UP, (2011), the bodies of the murdered girls were discovered in the gallery behind the home and the nala next to the house. The killings committed by appellant Surendra Koli were heinous and barbarous. He followed a specific plan when performing these killings. He would observe tiny girls passing by the home and, taking advantage of their vulnerability, pull them inside a certain residence where he would strangle them and, after murdering them, try to have sex with the body before cutting off their body parts and eating them. Some body parts were discarded by dumping them into the passage gallery. As a result, the relevant home had devolved into a virtual slaughterhouse where innocent children were routinely killed.
The case was determined to be among the rarest of rare cases, and hence no pity could be granted to appellant Surendra Koli. He had perpetrated such a heinous act against fifteen girls and was sentenced to death.
G.S.Mani vs Union Of India (2019)
In the case of G.S.Mani v. Union Of India (2019), also known as the Hyderabad veterinarian case, the female doctor was alone in her scooter. She parked at the Shamdabad plaza, from which she took a cab to her workplace. Meanwhile, four accused were watching her, which prompted them to puncture her scooter when she was away. When she returned from work, she discovered that her scooter had been punctured. Meanwhile, the four accused arrived and began forcing her, raping her, and at last burning her body. The evidence was clear-cut for the death penalty, but when the police confronted the accused, it raised issues about our Indian criminal justice system.
State of Maharashtra v. Vijay Mohan Jadhav and Ors. (2019)
The victim in this case of State of Maharashtra v. Vijay Mohan Jadhav and Ors. (2019), travelled to the Shakti Mills with her colleague, Anurag, for a project that entailed photographing abandoned buildings in Mumbai. They came across Salim and Vijay Jadhav, who were eventually recognised as the suspects. Both of them originally assisted the victim and his companion in entering Shakti Mills’ premises but afterward called their other friend, who was a juvenile. Then the three of them shackled Anurag and after that they brought the victim to an isolated room where they viciously raped the victim one by one and took her images, telling her that if she complained about them, those photographs would be circulated.
In this case, it was determined that all of the defendants were guilty of various offences like gang rape, disrobing, and unnatural acts. Two of the accused were hung to death by Session Court, while the child was tried by the Juvenile Justice Board. The victim further challenged it and demanded the death penalty. The appellant court ruled that if any mercy is shown toward the accused, it would render a mockery to the justice system and thus award those accused the death penalty.
Vinay Sharma v. Union of India (2020)
The Vinay Sharma v. Union of India (2020) case, commonly known as the Nirbhaya gang rape case, outraged the nation’s conscience. The tragic and violent tragedy occurred on a bus in the cold weather of Delhi. Six of the defendants viciously raped the girl, resulting in her death. An iron rod was pushed into her private regions as well, and she was tossed nude onto the road. All of her physical and emotional torment culminated in her death. When the matter came before the court, one of the defendants committed suicide in jail, and another was a minor. Therefore he was not put to death. However, the other four suspects were condemned to death and were hanged. This decision was reached after considering the aggravating and mitigating considerations. If any mitigating variables existed, they were overwhelmed by the aggravating factors. The death penalty was given because life imprisonment was deemed insufficient in light of the relevant facts of the crime and the barbaric torture inflicted on the victim, which resulted in her death.
Guidelines for assisting rape victims issued by the Supreme Court
In Delhi Domestic Working Women’s Forum vs. Union of India (1994), the Supreme Court determined that in rape cases, the investigative agency and the lower courts occasionally adopt a wholly apathetic approach toward the prosecutrix, and to help rape victims, the Supreme Court, as a result, issued the following directives:
In situations of sexual assault, complainants should be given access to legal counsel. Having someone familiar with the criminal justice system is essential. The victim’s advocate’s duties would include guiding the victim to other organisations for the assistance of a different kind, such as mental health counselling or medical aid, in addition to explaining the nature of the proceedings to the victim, preparing her for the case, and helping her in the police station and court.
Making sure that the same person who defended the complainant’s interests at the police station also represents her throughout the case is essential to guaranteeing continuity of assistance.
Legal aid may be necessary since the victim of sexual assault may be disturbed when she arrives at the police station. A lawyer’s advice and assistance would be tremendously valuable to her at this time, as well as when she is being questioned.
Before any questions were asked of the victim, the police should inform her of her right to representation, and the police record should reflect this. A list of advocates willing to intervene in these situations should be kept at the police station for victims who do not have a lawyer in mind or whose own counsel is unavailable.
The court will appoint an advocate as soon as feasible after receiving an application from the police; nevertheless, advocates will be authorised to function at the police station before asking or getting leave from the court to ensure that victims are questioned without undue delay.
The victim’s confidentiality must be protected as much as possible in all rape proceedings.
Given the Directive Principles specified in Article 38(1) of the Indian Constitution, the formation of a Criminal Injuries Compensation Board is essential. Rape victims typically incur severe financial losses. Some people, for example, are too traumatised to work again.
If the culprit is found guilty, the court will compensate the victims, and whether or not the offender is found guilty, the Criminal Injuries Compensation Board will make an award. If the rape caused these occurrences, the Board will take them into account along with missed payments due to pregnancy and birthing expenses.
Furthermore, since a victim of sexual assault requires completely different treatment from both society and the state authorities, the state authorities, in particular the Director General of Police and the State’s Home Ministry, have a responsibility to provide proper guidelines and instructions to other authorities on how to handle such cases. The doctor examining the rape victim must be cautious. In most circumstances, the rape victim should be evaluated by a female doctor.
Conclusion
Worshipping ladies or mothers is widely practised in India. However, we can see the paradigm fading away these days. Women are now viewed as sex objects and raped for men’s enjoyment or pleasure. India’s predicament is the worst. Because of some guys, a female does not feel secure travelling alone at night, wearing short clothes, or going clubbing at night. We have several laws in place to protect their life, yet they appear to be riddled with loopholes.
Rape is considered the most heinous crime against women, and data reveal that it is pretty widespread in India. The distinction between will and consent is essential in such an offence. The Indian Penal Code provides a clear definition of consent. On the other hand, the will is still not well defined. Because there is no correct definition, consent and will are understood as the same thing, so a distinction must be made between these concepts. Typically, the expression ‘against her will’ refers to a man having sexual contact with a woman despite her objections and reluctance. On the other hand, an act of reason followed by thought would be included in the term ‘without her consent.’ Section 375 of the Indian Penal Code is one of the most discussed parts owing to the growth in the number of rape cases in India in the last few years has brought substantial modifications in the Section but there are still quite a few existing issues that need to be rectified.
We have several rules in place to control such heinous crimes, but when it comes to implementation, we lack somewhere. As a result, the offence is viewed differently, which might result in a miscarriage of justice. Significant changes are required, which can be accomplished by altering legislative attitudes.
Frequently asked questions (FAQs)
What exactly is gang rape? Is it necessary for every member of the group or gang to commit sexual assault to face punishment?
Section 376D of the Indian Penal Code defines gang rape and acknowledges that it is not required for each member of the group to commit the crime of rape to have a high degree of guilt. The law punishes any behaviour in support of the group’s shared intention as if it were the crime of rape itself. This means that even people who stand guard at doors or withhold the victim cannot get away with a reduced sentence by saying they did not commit the sexual assault.
In comparison to the POCSO Act, how is rape under IPC narrower in scope?
According to the definition of Section 375, the perpetrator of rape under the Indian Penal Code can only be a male. However, when it comes to child sexual abuse victims, the Protection of Children from Sexual Offenses Act of 2012 is gender-neutral. The offence of penetrative sexual assault (specified in Section 3 of the POCSO Act) is substantially comparable to rape under the Indian Penal Code. In cases of child sexual abuse, both the victim and the offender might be male or female, and female abusers are legally recognised in this context.
From the viewpoint of the law, who may be a rape victim?
Only women are recognised as rape survivors under Section 375 of the Indian Penal Code. The POCSO Act acknowledges that any child (of any gender) might be the victim of penetrative sexual assault. This, however, excludes adult male survivors of penetrative sexual assault, whom the law does not recognise as rape victims. Section 375 of the IPC excludes adult male survivors of penetrative sexual assault as a category.
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