This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed analysis of a gentleman’s agreement which is generally resorted to for carrying out trade or other such obligations.
Table of Contents
Introduction
Gentlemen’s agreements are unwritten, informal agreements between two parties to carry out a trade or other obligation. These agreements are not legally enforceable, but they are supported by the participants and their social networks’ integrity, social standards, and peer pressure. Despite its more informal nature, a breach of a gentleman’s agreement can have a detrimental impact on commercial ties if one side breaks their word. A gentleman’s agreement (also spelled “gentlemen’s agreement”) may or may not be consummated by a handshake. This article provides a detailed analysis of gentleman’s agreement in general.
What is a gentleman’s agreement
The tolerance of two or more parties for the fulfilment of expressed or unwritten responsibilities is the basis of a gentleman’s agreement, which is more of a point of honour and etiquette. If a gentleman’s agreement is breached, there is no court-administered restitution, unlike a binding contract or legal arrangement. Nonetheless, societal forces and standards contribute to the continued existence of gentlemen’s agreements. Indeed, the long-term consequences of breaking such an agreement can be far more damaging than any monetary benefit. In such a circumstance, the trust may rapidly be damaged and few people will want to enter into business with somebody with a reputation for reneging.
A gentlemen’s agreement can be presented to complete a transaction between two or more parties without the requirement for regulatory scrutiny or a trusted third-party enforcer like a court or judge. This can save transaction costs while also allowing for more flexibility in deal reconciliation. ‘Informal agreement,’ ‘unspoken agreement,’ ‘handshake agreement,’ ‘Pactum’ (Latin for pact), ‘verbal agreement,’ ‘tacit agreement,’ or ‘unwritten agreement’, are other synonyms for a gentlemen’s (gentleman’s) agreement.
In commercial treaties and international relations, gentlemen’s agreements can be found. The Gentlemen’s Agreement of 1907, for example, saw the United States and the Empire of Japan address Japanese immigration and the terrible treatment of Japanese immigrants already in the United States. The pact, which was never confirmed by Congress, saw Japan pledge to stop issuing passports to anyone seeking labour in the United States. In response, the United States would no longer tolerate discrimination and segregation against Japanese residents living in the country.
Tales behind the gentleman’s agreement
In the 1800s and early 1900s, gentlemen’s agreements between business and the US government were prevalent. However, several regulators concluded that there was widespread coordination and unethical commercial practises. In 1903, the Bureau of Corporations was established as a forerunner of the Federal Trade Commission (FTC) to examine monopolistic behaviour. In certain situations, new gentlemen’s agreements were formed, in which Wall Street bankers, such as J.P. Morgan and his “House of Morgan,” would meet with the bureau itself to obtain advance approval on mergers and takeovers. The gentlemen’s agreement, for example, allowed United States Steel Corporation to become the world’s first billion-dollar business by allowing regulators and the President to ignore the Sherman Antitrust Act, 1890. A financial crisis erupted in 1907 as a result of a stock market panic thereby affecting many major investment banks. Because of the panic, President Theodore Roosevelt collaborated with J.P. Morgan to merge banks in the hopes of averting a wider disaster. Similarly, in 1907, Morgan collaborated informally with Roosevelt to construct a gentlemen’s agreement that would allow U.S. Steel to buy its major competitor, Tennessee Coal and Iron, in violation of the Sherman Act.
Gentlemen’s agreements were a widespread discriminatory strategy in the United States, apparently more common than restrictive covenants in maintaining the homogeneity of upper-class communities and suburbs. These agreements were exceedingly difficult to establish or follow due to their nature, and they remained in existence even after the Supreme Court’s findings in Shelley v. Kraemer (1948) and Barrows v. Jackson (1953). Gentlemen’s agreements ‘undoubtedly still exist,’ according to one source, although their use has considerably decreased.
Gentlemen’s Agreement of 1907 : an insight
The Gentlemen’s Agreement of 1907 was an informal agreement between Japan and the United States (1907-1908) that restricted Japanese immigration in return for the desegregation of San Francisco’s public schools. It represented President Theodore Roosevelt’s diplomatic efforts to pacify a proud Japanese government and address California’s rising anti-Japanese sentiment.
The San Francisco Board of Education separated all pupils of Japanese ancestry to “the Oriental Public School for Chinese, Japanese, and Koreans“ on April 18, 1906. Japanese-Americans were furious at what they saw as a violation of the Treaty of Paris, 1894, which promised them the right to immigrate. As the situation worsened, the Japanese and US governments intervened to maintain diplomatic peace. President Roosevelt intervened, appointing Secretary of Commerce and Labor Victor H. Metcalf to examine the problem, fearful of offending a growing international power in the aftermath of Japan’s victory in the Russo-Japanese War (1904–1905). With the exception of a few overage pupils, Metcalf’s investigation found no need for segregation.
Despite Roosevelt’s opposition to the segregation order, the federal government was legally vulnerable, as the Plessy v. Ferguson (1896) decision had already established the “separate but equal” concept. The federal government opted to focus on the forty-one immigrant pupils who were in the right grade for their age in order to fight the segregation order in court. The local Japanese counsel agreed that the twenty-seven overage students did not need to be considered and that there was nothing that could be done about the other twenty-five American citizens. The federal government was prepared to pursue action, armed with a section of the Treaty of Commerce and Navigation between Japan and the United States, 1894, that provided reciprocal “most favoured nation” rights of residency to people of both countries.
Roosevelt and Secretary of State Elihu Root, however, favoured a political solution that satisfied both the Japanese government and Californian public opinion. Roosevelt made it plain that the “only way to avoid perpetual conflict” between the two nations was to ban “all immigration of Japanese working males,” a compromise the Japanese government was ready to accept in order to avoid a Japanese equivalent of the Chinese Exclusion Act, 1882.
Roosevelt and Root met with San Francisco school administrators and California legislative leaders on February 8, 1907, to work out a deal. California officials agreed to restore Japanese students if they were under the age of 18, while the federal government dropped its litigation and pledged to restrict Japanese labour immigration. The Japanese agreed to cease giving passports to labourers travelling to the United States mainland. Returning labourers, as well as the “parents, spouses, and children of labourers already residing there,” were to be awarded passports.
In 1907, US negotiators reached a gentlemen’s agreement that limited Japanese immigration to the United States. In exchange, President Roosevelt agreed to repeal a San Francisco law that separated Japanese children from white students.
Gentlemen’s Agreement of 1956
The Andhra Pradesh Gentlemen’s Agreement of 1956 was signed by Telangana and Andhra Pradesh politicians prior to the creation of the Indian state of Andhra Pradesh on February 20, 1956. The agreement included provisions to prevent the government of Andhra Pradesh from discriminating against Telangana. Violations of this agreement were cited as one of the grounds for the formation of separate statehood for Telangana. A Gentlemen’s Agreement was signed between the leaders of Andhra Pradesh and Telangana, which included a 60:40 cabinet split, the reservation of the post of Deputy Chief Minister for Telangana if the Chief Minister was from Andhra Pradesh, the formation of a Telangana Regional Council, and the reservation of public sector jobs for Mulkis (erstwhile residents of the Hyderabad).
States Reorganisation Commission (SRC), in 1955, recommended that “the Telangana area is to be formed into a separate State, which may be known as the Hyderabad State, with provision for its unification with Andhra Pradesh after the general elections likely to be held in or about 1961, if the legislature of the residency Hyderabad State expresses itself in favour of such unification by a two-thirds majority.”
The Public Employment (Residence Requirement) Act was passed in 1957 as a result of this agreement. Meanwhile, the SRC’s concerns were justified. The coastal area was pleased to have Hyderabad as its capital, but because of their stronghold in the Congress party and administration, the stipulations of the Gentleman’s Agreement were disregarded, and within a decade, the movement for a separate Telangana garnered widespread support thereby declaring Telangana to be a state in 2014.
Functioning of a Gentleman’s Agreement
In international trade and relations, as well as most sectors, gentlemen’s agreements are frequent. Gentlemen’s agreements were particularly common during the dawn of the industrial age and far into the first half of the twentieth century when legislation lagged behind new economic practises. Steel, iron, water, and tobacco sectors, among others, have been shown to employ such agreements to control pricing and limit competition.
Gentlemen’s agreements have developed to govern international operations such as monetary and trade policy cooperation. It is also described as “an international phrase for an agreement established verbally rather than in writing, although entirely legally legitimate,” according to Edmund Osmaczyk in the Encyclopedia of the United Nations and International Agreements. This sort of arrangement can let a country bypass the domestic legal requirements of signing a formal treaty, or it can help a government enter into a secret pact that is not binding on the future administration. According to another source, all international accords are gentlemen’s agreements since they are all unenforceable unless in the event of war.
Limitations of a Gentleman’s Agreement
In the worst-case scenario, a gentlemen’s agreement might be used to engage in anti-competitive behaviour like price-fixing or trade quotas. Because a gentleman’s agreement is not written down as a legal, enforceable contract, it can be used to make and enforce unlawful regulations. Consumers may face higher pricing or worse quality items as a result of this. Worse yet, a gentlemen’s agreement may be used as a means to promote discriminatory practices, such as in an “old boy’s network.” Gentlemen’s agreements lack the same legal and regulatory safeguards as formal contracts since the former are informal and generally not written down. As a result, they are more difficult to enforce.
Is a Gentleman’s Agreement legally binding?
Every time someone buys a drink from a newsagent or a t-shirt from a high-street business, they are entering into a consumer contract to buy products, in the legal language. Even if there is no formal contract in place, the contract’s provisions are nevertheless binding. One reason for this is that as consumer contracts are backed by a complicated legal framework, an individual, as a customer, automatically has rights that he/she may not be aware of. However, there are situations when a ‘Gentleman’s Agreement’ is formed (i.e., no written contracts are put into), but there are no clear statutory or other legal processes in place to guarantee the enforcement of the agreement terms, usually in the context of business-to-business dealings.
From a legal perspective, a “Gentleman’s Agreement” is an oral contract that has arisen between two parties. This implies that the contract’s terms and conditions aren’t written down, which means they can’t always be proven. This does not rule out the possibility of those provisions being enforced, nevertheless, a contract does not have to be in writing to be legally binding. Wherever the following factors are present, a legal contract can be formed:
One party makes an offer, which is accepted by another,
There is an intention to establish legal relations between the parties, and
There is a “consideration” factor (i.e. the parties each exchange something in value, such as payment of money in exchange for a promise to perform services).
There will be no legally enforceable contract if none of these aforementioned factors are present. As a result, it’s easy to understand how oral contracts, often known as ‘Gentleman’s Agreements,’ may be legally enforceable. Proving that each of the formation factors has emerged in an oral contract, on the other hand, might be challenging, posing a danger to an individual’s company. Therefore, it is recommended to have these agreements in place since having explicitly stated contract conditions in place between firms helps businesses to clearly demonstrate that the formation criteria have been met.
Conclusion
In today’s world, a gentleman’s handshake is usually just a handshake. It is no longer regarded as a method for two parties to negotiate a contract. Specifically, because most individuals nowadays don’t trust other people’s statements, because intentions change so frequently, especially in the corporate world. Business is often conducted nowadays through the use of structured contracts, written contracts, the engagement of attorneys, and the actual meeting of both parties to produce a binding contract. We no longer rely on the gentleman’s handshake as a codified agreement because people change their minds, people break their promises, and one’s word is not nearly as solid or reliable as it was during the times of aristocracy and medieval ages. In today’s commercial conversations and contracts, the handshake is still employed. With this in mind, the handshake’s value and importance have been reduced to a simple demonstration of good faith in which both parties intend to carry out the contract’s requirements. It is no longer the norm for two parties to agree on contract terms that they would like to have enforced in a legal setting or environment in today’s highly legalized field of contract negotiations and deal-making, and it is no longer legally binding when it comes to two parties agreeing on contract terms that they would like to have enforced in a legal setting or environment.
This article is written by Sujitha S, from the School of Excellence in law, Chennai. This article focuses on Sections 299 and 300 of the Indian Penal Code with relevant illustrations and judgments. It also discusses the difference between culpable homicide and murder.
“All murders are culpable homicide, but all culpable homicides are not murder.”
Is the above statement confusing? You won’t be at the end of the article. To start with,Sections 299 and 300 of the Indian Penal Code (1860) deals with culpable homicide and murder, respectively. Generally, the thin line of distinction between them is the reason why many find it interesting. Even it poses difficulty for advocates and legal practitioners who are unsure where to lay the case. Murder and culpable homicide appear to be more similar than they are, but they are not interchangeable terms. Section 299 of the Indian Penal Code defines culpable homicide, whereas Section 300 deals with the concept of murder. The person who begins to learn these notions is always snarled up by these phrases. The term ‘homicide’ refers to the killing of a human being, the term ‘culpable homicide’ refers to the unlawful killing of a person and the term ‘murder’ also refers to the killing of a person. So what are the slight points to be pondered to arrive at a conclusion? This article deals with every such aspect of the topic.
Homicide
Homicide is derived from the Latin phrases homi (man) and cido (cut). Homicide literally means “the killing of a human being by another human being.” The term ‘homicide’ refers to the act of causing or hastening the death of a human being by another human being. However, not all homicides are illegal or criminal. The death of an assailant caused by an innocent agent, such as a child under the age of discretion (doli incapax) or a person of unsound mind, or the death of the assailant caused in the exercise of the right of private defence, is not illegal. In the first, the perpetrator is ‘excused,’ but in the second, the defendant’s actions are ‘justified.’
Types of homicides
As a result, there are two sorts of homicides: (1) lawful homicides and (2) unlawful homicides. Lawful homicides are ones that fall under the IPC’s Chapter on General Exceptions and are hence not penalised. The homicides that are penalised under the Code clearly fall within the category of unlawful homicides.
Lawful homicides can be divided into two categories based on the nature of the ‘general exceptions’ that surround the homicide: excusable homicides, and justifiable homicides. As a result, the IPC recognises three types of homicide. There are three types of murders:
Excusable
Justifiable, and
Unlawful or criminal (i.e. killings that are neither excused nor justified).
The ‘Offenses Affecting Life’ under Chapter XVI of the IPC deals with homicide offences. It is made up of four homicide offenses, namely:
Culpable homicide that does not amount to murder,
Culpable homicide that does amount to murder,
Death by a rash or negligent act, and
Dowry death.
Culpable homicide
According to Section 299 of IPC, a person who commits culpable homicide does an act with the intent of causing death, or with the knowledge that such an act is likely to cause death.
Illustration:
A is aware that Z is hiding behind a bush. B is completely unaware of this. A causes B to shoot at the bush with the intent of causing, or knowing that it is likely to cause, Z’s death. Z is killed by B’s bullets. B may be innocent in this case, but A has committed the crime of culpable homicide.
Culpable homicide is defined under Section 299 of the Criminal Code. Section 300 defines murder as a culpable homicide with certain distinguishing features, which are listed in clauses 1-4 of Section 300, subject to the exclusions set out in Section 300. Any culpable homicide that occurs within one of the four clauses in Section 300 is considered murder. All other cases of culpable homicide, including those that may fall under the exceptions to Section 300, shall be considered culpable homicide rather than murder. While Section 299 defines ‘culpable homicide,’ it is not exhaustive.
Essential ingredients of culpable homicide
The following are the essential elements of culpable homicide:
a person must be dead;
the death must have been caused by the act of another person; and
the act causing death must have been done with:
(a) the intention of causing death; or
(b) the intention of causing bodily injury likely to cause death; or
(c) with the knowledge that such an act is likely to cause death.
Explanations for Section 299 IPC
The definition itself specifies three scenarios in which the presence or absence of particular criteria in the cause of death is recognised as culpable homicide. Explanations 1-3 deal with these scenarios.
Explanation 1
It describes a circumstance in which the injured individual has a disorder, sickness, or bodily infirmity that has hastened his death. The fact that his death was expedited or hastened by the sickness or disease he was already suffering from does not relieve the person who caused the damage of guilt. In other words, the person who inflicted the harm cannot avoid criminal liability for culpable homicide by claiming that the person wounded would not have died if he had not suffered from the condition or ailment.
For instance, A is suffering from diabetes. B with the intention of hastening the death of A gave him a lot of sweets. The intended victim ate the sweets, as a result of which, his blood sugar level went high and eventually resulted in his death. Thus, B is criminally liable.
Explanation 2
It describes a circumstance in which an injured person may have recovered and avoided death if he had received early and appropriated medical treatment. In such cases, the fact that the wounded person died as a result of his inability to obtain adequate medical care cannot be used to absolve the person who caused the harm in the first place of liability.
For instance, A is suffering from diabetes. B with the intention of hastening the death of A gave him a lot of sweets. The intended victim ate the sweets, as a result of which, his blood sugar level went high and eventually resulted in his death owing to the lack of immediate medical care. Here, the fact of the lack of immediate medical care cannot be considered to acquit B from liability.
Explanation 3
It refers to a somewhat different circumstance. It takes into account a child’s death while still in the mother’s womb. It is not culpable homicide if the child dies while still in the mother’s womb, according to the law. However, if any part of the child emerges from the mother’s womb, even if it is not completely developed, and the kid dies, it is considered a culpable homicide.
For instance, A is a pregnant woman who’s yet to deliver a baby in the hospital. Now, the head of baby B comes out of the womb. If the baby dies, it amounts to culpable homicide.
In Jabbar And Ors. v. State (1965), Sarju, Jamna’s brother, was said to have been hired as a labourer by Ishaq, the appellant, to transport limestone from Saraiya hill. Ishaq was said to have slapped Sarju twice when he stated his willingness to carry just five ‘dharas’ (seers) of lime instead of the seven that Ishaq demanded. The three brothers, Jabbar, Ishaq, and Habib are said to have gone to their residence after that and saw Sarju seated there while Smt. Pangoli was applying turmeric to the back of his neck. Ishaq appellant is accused of striking two lathi strikes at Sarju as soon as the appellants arrived on the scene, causing him to flee to his own nearby Kotha. After that, it is reported that Jabbar appellant inquired about Jamna. As Smt. Pangoli was unable to inform him, the appellant Jabbar is accused of pushing her, causing her to fall on her stomach, and then kicking her on the side of her stomach. Smt. Pangoli, who was pregnant at the time, became unwell as a result and gave birth prematurely to a seven-month-old baby who died. The child’s hands, feet, and other body parts had developed, according to the post mortem report. In other words, the baby had developed sufficiently to be deemed an independent entity from the mother in the eyes of the law. The court found Jabbar guilty of an offence under Section 304A of the Indian Penal Code and sentenced him to one year of rigorous imprisonment, a fine of Rs. 500, and three months of further rigorous imprisonment if he did not pay the fee.
Section 301 IPC : culpable homicide by causing the death of a person other than the person whose death was intended
By Section 301, if a person commits culpable homicide by causing the death of someone whose death he neither intends nor knows to be likely to cause, the culpable homicide committed by the offender is of the same description as if he had caused the death of the person whose death he intended or knew to be likely to cause.
In Rajbir Singh v. State Of U.P (2006), the appellant alleged that his brother’s home was attacked with bricks by a neighbour. As a result of this, his father and the accused had a verbal spat, but the problem was eventually resolved by the locals. The next day, the accused and two relatives arrived with firearms. They approached the complainant’s business, where his father was standing. The accused allegedly persuaded or urged his relatives to murder him there. The accused began firing at the complainant’s father, who was injured and fell to the ground. A girl went to that shop to buy some items and was injured and fell down. On their route to the hospital, both of the injured people died. In his defence, the accused claimed that the girl died by mistake and that they had no intention of killing her. She was going through that area when she was injured and died as a result. The Supreme Court overturned the High Court’s decision and found the defendants guilty. He was accused under Section 301 of the IPC.
Murder
By Section 300, unless otherwise specified, culpable homicide is murder:
If the act that causes the death is done with the intent of causing death, or—
A fires a shot at Z, intending to kill him. As a result, Z dies. A commits murder.
If the act is done with the intention of causing such bodily injury as the offender knows is likely to cause the death of the person to whom the harm is caused, or—
Knowing that B is suffering from an illness that makes a blow likely to kill him, A hits him with the intention of injuring him. As a result of the strike, B dies. Although the strike may not have been sufficient in the ordinary course of nature to cause the death of a person in good health, A is guilty of murder. However, if A, unaware that B is suffering from a disease, strikes him with a blow that would not, in the ordinary course of nature, kill a person in good health, A is not guilty of murder if he did not intend to cause death or bodily injury that would, in the ordinary course of nature, kill a person in good health.
If it is done with the aim of inflicting physical damage on another person, and the bodily injury inflicted is sufficient to cause death in the regular course of nature, or—
In the regular course of nature, A purposefully causes Z a sword-cut or club-wound sufficient to kill a man. As a result, Z dies. A is guilty of murder in this case, despite the fact that he may not have planned to kill Z.
If the person conducting the act is aware that it is so risky that it must, in all likelihood, result in death or physical harm that is likely to result in death and conducts the act without any justification for risking death or injury as stated.
Without justification, A shoots a loaded cannon into a gathering of people, killing one of them. A is guilty of murder, even though he did not have a planned plan to kill somebody in particular.
Exceptions
Exception I : grave and sudden provocation
Culpable homicide is not murder if the offender causes the death of the person who delivered the provocation or any other person by mistake or accident while being deprived of the ability of self-control by grave and immediate provocation.
Illustration
Under the impact of emotions aroused by Z’s provocation, A murders Y, Z’s child, on purpose. In as much as the provocation was not offered by the child, and the child’s death was not caused by accident or misfortune while doing an act prompted by the provocation, this is murder.
The exception is subject to three exceptions of its own:
The provocation should not have been sought voluntarily by the culprit as a justification for killing or harming anybody.
The provocation should not be caused by an act carried out in accordance with the law or by a public official in the lawful exercise of his powers.
The provocation is unrelated to any actions taken in the exercise of one’s right to self-defence.
KM Nanavati v. State of Maharashtra
The defendant in KM Nanavati v. State of Maharashtra (1961), was a naval officer. He had three children and was married. His wife admitted to him one day that she had an affair with Prem Ahuja, the deceased. Enraged, the accused returned to his ship, got a semi-automatic pistol and six rounds from the ship’s shop, proceeded to the deceased’s flat, entered his bedroom, and shot him to death. Following that, the accused turned himself in to the police. The Supreme Court had to decide whether the accused’s actions were covered by Exception 1 of Section 300. The following postulates pertaining to the grave and abrupt provocation were established by the Supreme Court:
The test of ‘grave and sudden’ provocation is whether a reasonable man from the same social group as the accused would be so outraged as to lose his self-control in the position in which the accused was put.
In India, words and gestures may give grave and sudden provocation to an accused, so bringing his act within the first exception to Section 300 of the IPC.
In determining whether the succeeding action produced significant and immediate provocation for committing the crime, the mental context formed by the victim’s earlier act may be taken into account.
The fatal strike should be definitely connected to the effect of passion emanating from that provocation, not after the passion had cooled down due to the passage of time or otherwise allowing for premeditation and calculation.
The accused may have temporarily lost control after his wife admitted to her illegitimate relationship with the deceased, according to the Supreme Court. After dropping his wife and children off at a movie theatre, he proceeded to the ship, grabbed the handgun, conducted some official business, and then drove his car to the deceased’s workplace and afterwards to his home. By that time, three hours had passed, and he had had ample opportunity to restore his temper. As a result, the Court decided that the requirements of Exception 1 to Section 300 were not applicable. The defendant was found guilty of murder and sentenced to life in prison.
This was the last case decided by jury trial. This case was debated hugely among the public. There was a major criticism about the case. Nanavati had previously served as V. K. Krishna Menon’s Defence Associate while the latter was High Commissioner to the United Kingdom, and had gotten close to the Nehrus during that period. Jawaharlal Nehru was Prime Minister of India at the time of Nanavati’s trial and punishment, and his sister, Vijayalakshmi Pandit, was Governor of Bombay State. All of these benefits might not have helped Nanavati under other circumstances, because a pardon could have been perceived by the press and public at other times as a flagrant abuse of authority to aid a crony of a powerful political family. Public opinion in the generally conservative country, on the other hand, was overwhelmingly in favour of Nanavati, who was viewed as an upright navy commander with middle-class ideals and a strong sense of honour. Nanavati had served three years in prison, and it was thought that granting him clemency would enrage the Sindhi community, to whom the Ahuja family belonged. Around this time, the government received a pardon plea from Bhai Pratap, a Sindhi businessman who had been convicted of abusing an import licence and had been a participant in the Indian independence struggle. The government was inclined to pardon Bhai Pratap because of his history as a freedom warrior and the minor nature of his transgression. Finally, even Mamie Ahuja, the deceased’s sister, signed an application for Nanavati’s pardon. In writing, she consented to his pardon. Bhai Pratap and Nanavati were finally pardoned by Vijayalakshmi Pandit, the Governor of Maharashtra at the time. This case is also an epitome of the influence of media trials.
In Shankar Diwal Wadu. v. State Of Maharastra (2008), according to the prosecution, the accused Shankar Wadu is the brother of Mahu Wadu, who was assaulted by him and died as a result of the assault. The event occurred on October 22, 1996, in Kaimad Wadu Pada, Laluka Wada, Thane, where both the accused and the victim, as well as other close relatives, lived. The accused sought to maintain Kamlibai, the widow of his brother Vasant, as his mistress, according to the prosecution evidence, but she refused. The appellant was violently dragging Kamlibai to his residence on the day of the occurrence. His brother Mahu (the deceased) told him at the time that he couldn’t force and pull Kamlibai to his residence. The accused became outraged by such unsolicited advice and lifted a wooden plank (Pat) and whacked Mahur on the head with it, as well as kicking and punching him. Mahu died instantly. Yeshubai, a close relative of both the offender and the victim, filed a complaint alleging his attack. The investigation was launched after receiving this complaint, and the accused was detained. The prosecution called up to eight witnesses to establish its accusation of murder against the accused, and the learned trial judge, after weighing the evidence, found the accused guilty and sentenced him to life in prison under section 302 / 506 of the Indian Penal Code, as well as a fine of Rs.50,000.
Exception II : right of private defence
Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Illustration
Z tries to horsewhip A, but not in a way that causes him serious injury. A pulls a handgun from his pocket. The attack against Z continues. A, believing in good faith that there is no other way to avoid being horsewhipped, shoots Z to death. A has merely committed culpable homicide, not murder.
Under some circumstances, the right of private defence even extends to the infliction of death. This Section applies when a person’s right to private defence has been violated. It should be noted that the fact that a person has exercised his right to private defence beyond its limits does not completely exonerate him or her under this exemption. It is only used as a mitigating element to lessen the crime from murder to culpable homicide that does not constitute murder. Of course, before this exception may be invoked, it must be established that the accused has the right to a private defence under Sections 96-106 of the IPC. The question of whether the accused has exceeded his right to private defence will arise only once the existence of the right has been proved. If it seems that the accused does not have the right to a private defence in the first instance, then this provision will not apply.
Nathan v. State of Madras
The accused and his wife were in possession of some land that they had been farming for some years in Nathan v. State of Madras (1972). They had fallen behind on their lease payments to the landlady. The accused was forcibly evicted, and the landlord attempted to harvest the crop. As a result, the accused killed the dead in the exercise of his right to private property defence. The Supreme Court agreed with the claim that the incident occurred when the accused was exercising his legal right to private defence against the property. The right to private property defence was restricted to the degree of causing any harm other than death under Section 104, IPC because the deceased person was not armed with any lethal weapons and there could not have been any fear of death or severe harm on the part of the accused and his party. As a result, the accused’s right to private defence was violated, and the case was classified as culpable homicide not amounting to murder under Exception 2 to Section 300 of the Indian Penal Code because the act was done in good faith and without the intent to cause death. The accused’s death sentence was commuted to a term of life in prison.
Exception III : lawful act of a public servant
Culpable homicide is not murder if the offender, while acting as a public servant or assisting a public servant acting for the benefit of public justice, exceeds the powers granted to him by law and causes death by doing an act that he, in good faith, believes to be lawful and necessary for the proper discharge of his duty as such public servant and without malice toward the person who is killed.
The following are the essential elements of this exception:
The offence must have been committed by a public servant or a person assisting a public servant;
The alleged act must have been committed by the public servant in the discharge of his official duties;
He must have exceeded the powers granted to him by law;
The act must have been done in good faith; and
The public servant should have thought that his actions were legal and required for the proper fulfilment of his duties, and
He should not have harboured any hatred toward the individual who died as a result of his actions.
In Dakhi Singh v. State (1955), a suspected thief was apprehended by a police officer and was being transported to a railway station. The robber was able to flee the speeding train. He was chased by the constable. He fired at him because he was unable to arrest him. However, he hit the fireman and killed him in the process. The case was found to be covered by this exception.
Exception IV : sudden conflict
Culpable homicide is not murder if it is committed in the heat of emotion during a sudden conflict and without the offenders taking undue advantage or acting in a cruel or unusual manner.
The only requirements for this exception are that:
the murder be committed without premeditation;
it is committed in a sudden fight;
it is committed in the heat of passion;
it is committed upon a sudden quarrel; and
It is committed without the offender taking undue advantage or acting in a cruel or unusual manner.
In Manke Ram v. State of Haryana (2003), the Supreme Court granted the benefit of exception 4 to a police inspector who killed his subordinate in a bizarre combination of circumstances. In his chamber, he asked the deceased to drink. While they were drinking, the deceased’s nephew entered the room and summoned him for supper. As the deceased rose to leave the room, the appellant became enraged and began insulting him in obscene terms, which the deceased objected to. This enraged the appellant even more. Between the two of them, a brawl erupted. The appellant took out his service handgun and fired two bullets at the deceased, who was standing close. These shots were lethal. The Supreme Court overturned the Punjab High Court’s conviction under Section 302 of the Code, finding that the incident occurred in the heat of passion and granting the petitioner the benefit of exception 4. It was decided that, given the totality of the facts and circumstances of the case, the appellant did not take unfair advantage of the fight or conduct in an unusual or harsh manner.
Exception V : death with consent
Culpable homicide is not murdered if the dead individual is beyond the age of eighteen years and suffers or risks death with his consent.
Illustration
A intentionally causes Z, a minor under the age of eighteen, to commit suicide by instigation. Because Z’s young, he was unable to consent to his own death; as a result, A had aided and abetted murder.
The following things must be proven:
The death was induced with the deceased’s permission;
The deceased was over the age of 18 at the time; and
The consent provided was free and voluntary, and not based on fear or a misunderstanding of facts.
In the case of Narendra v. State of Rajasthan (2014), the deceased was a married woman named Nathi who had left her house and was living with her parents. There, she became close to the accused Narendra, and the two expressed their desire to marry. Because they belonged to the same gotra, the villagers were opposed to their desire to marry. Due to their dissatisfaction with the villagers’ rejection of their love, both of them agreed to commit suicide. Other villagers saw the accused inflicting harm on the corpse one day, but the victim had already died before they could save her. Although the accused had stab wounds in his abdomen, he was prevented from killing himself. The High Court found no evidence on the record that the deceased gave his free and voluntary consent. Later, the case reached the Supreme Court, where justices emphasised facts such as the fact that the deceased did not raise an alarm, that the accused was injured, and that he did not have a weapon when he entered the residence. Taking into account these facts, the Court found in favour of the deceased, awarding him benefits under Exception 5.
Difference between culpable homicide and murder
The genus is culpable homicide, and the species is murder. All culpable homicides are murders, but not all culpable homicides are murders. So the distinction is between culpable homicide that amounts to murder and culpable homicide that does not amount to murder. The sole distinction between culpable homicide and murder is the degree of purpose and knowledge involved. The case would be classified as murder if there was a high level of purpose and knowledge. The case would be classified as responsible homicide if there was a lesser degree of purpose or knowledge. As a result, establishing categorical demarcations between culpable homicide and murder is challenging.
Intention
Clause (a) of Section 299 and clause (1) of Section 300 are the same. It is culpable homicide under Section 299 if death is caused by an act done with the goal of causing death (a). Unless one of the exceptions applies, it also amounts to murder under cl (1) of Section 300.
Intention to cause bodily injury likely to cause death
Both Section 299 clause (b) and Section 300 clauses 2 and 3 deal with the purpose to inflict physical damage that is likely to result in death. In terms of Section 299(b), it simply states that if death is caused by an act committed with the goal of causing physical damage likely to cause death, it is considered a culpable homicide. While clause (2) of Section 300 states that an act must be done with the goal of inflicting bodily damage that is likely to result in death, it also states that the deliberate causation of bodily injury must be accompanied by the knowledge that the bodily injury is likely to result in death.
The term ‘likely’ in Section 299(b) refers to a simple possibility or likelihood that the harm may result in death. However, the word ‘likely’ in clause (2) of Section 300 conveys, to some extent, death certainty. This is explained in illustration (b) to Section 300. It implies that the accused has some unique knowledge of the deceased’s state, such as any ailment he may be suffering from, and that this information adds certainty to the fact that the bodily damage would result in death. The sole difference between the meanings of the words ‘likely’ in Sections 299(b) and 300(2) is the degree of likelihood.
In the case of clause (3) of Section 300, the purpose to inflict bodily damage is accompanied by the certainty that such physical injury is sufficient to cause death in the regular course of nature. The word ‘sufficient’ in the regular course of nature to cause death, like the phrase ‘likely’ in Section 299, imputes the certainty of death to a higher extent (b). Thus, the essential difference between death under Sections 299(b) and 300(2) and (3) is that under Section 299(b), the bodily injury caused is less likely to result in death, whereas under Section 300(2) and (3), the bodily injury caused is more likely to result in death.
Knowledge
Sections 299(c) and 300(4) deal with situations in which the accused has information that the act is likely to result in death. The need for knowledge under Section 300(4) is a very high degree of risk of death, similar to the preceding Sections. This high probability of death is indicated in the clause’s final Section, which states that the act must be so immediately dangerous that it will almost certainly result in death or bodily injury that is likely to result in death, and that the act must be performed without any justification for taking the risk. Both clause (c) of Section 299 and clause (4) of 300 apply to circumstances in which the accused has no intention of causing death or bodily damage but is aware that the act is basically dangerous. The degree of risk to human life determines whether the conduct is murder or culpable homicide. It is culpable homicide if death is a potential outcome; it is murder if death is the most likely outcome.
A person commits culpable homicide if the act by which the death is caused is done –
Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done –
Intention With the intent to cause death; or with the intention to cause physical damage that is likely to result in death; or
Intention With the intention of causing death; or with the intention of inflicting physical injury that the offender knows will result in the death of the person to whom the harm is inflicted; or with the intention to inflict bodily damage on any person and the physical injury intended to be inflicted is sufficient to cause death in the ordinary course of nature, or
Knowledge Knowing that the conduct is likely to result in death.
Knowledge With the knowledge that the conduct is so immediately harmful that it must almost certainly result in death or bodily injury that is likely to result in death and without any justification or risk of causing death or injury as described above.
Case laws relevant to culpable homicide and murder
Vasanth v. State of Maharashtra
There existed prior animosity between the accused and the deceased in Vasanth v. State of Maharashtra (1983). The accused and the dead were observed fighting. The two were separated by a few people who were present. The accused then rushed to his vehicle, drove it on the wrong side of the road and straight into the deceased, knocking him down and driving over him, killing him. The route on which the accident occurred was broad and lonely. The accused had no cause or requirement to drive the jeep in the incorrect way. The Supreme Court ruled that the accused intentionally slammed his jeep into the deceased and ran him over with the purpose to kill him. It’s worth noting that the first clause of Section 300, ‘act done with the purpose to cause death,’ is the same as the first clause of Section 299, which is likewise ‘performing an act with the intent to cause death.’ As a result, an act that falls under clause (1) of Section 300 will also fall under Section 299, and it will constitute culpable homicide amounting to murder in both cases.
State of Rajasthan v. Dhool Singh
In the case of State of Rajasthan v. Dhool Singh (2003), the Supreme Court found the accused guilty of murder for inflicting an incised cut with a sword on the deceased’s neck, resulting in excessive bleeding and organ failure, on the grounds that he knew the bodily injury he caused would likely result in death.
Pulicherla Nagaraju v. State of Andhra Pradesh (2006)
In Pulicherla Nagaraju v. State of Andhra Pradesh (2006), the Court outlined the facets that courts should consider when deciding whether an act is punishable as murder, culpable homicide, or culpable homicide not amounting to murder, and stated that the Court should proceed with caution when deciding whether the case falls under Section 302 or 304 Part I or 304 Part II. As a result, it is the responsibility of the courts to ensure that instances of murder punished under Section 302 are not changed into offences punishable under Section 304 Part I/II, or that cases of culpable homicide that do not amount to murder are considered as murder punishable under Section 302. A combination of a few or many of the following, among other things, can be used to determine the intent to cause death:
The weapon’s properties;
Whether the accused carried the weapon or it was picked up on the spot;
Whether the strike is directed at a critical bodily part;
The amount of force used to injure someone;
Whether the action occurred during a sudden dispute, a sudden fight, or a free-for-all brawl;
If the incident happened by coincidence or was it planned in advance;
Whether there had been any previous animosity or if the deceased was a stranger;
Whether there was any grave and immediate provocation, and if so, what caused it;
Whether it was committed in the heat of emotion;
Whether the person who inflicted the harm acted in a cruel and unusual manner;
Whether the accused gave a single blow or multiple strokes. Of course, the preceding list of conditions is not complete, and there may be other particular circumstances in individual situations that provide light on the question of purpose.
Punishments for culpable homicide and murder
Section 304 IPC : penalty for culpable homicide that does not amount to murder
If the act by which the death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, and also be liable to fine; or with imprisonment of either description for a term which may extend to ten years, and also be liable to fine; or with imprisonment of either description for a term which may extend to ten years, and also be liable to fine.
Though the Section itself does not split the Parts in this fashion, the sentence under this Section is separated into two parts, often referred to as Section 304, Pt I and Section 304, Pt II. If the conduct is done with the purpose to cause death or physical damage that is likely to cause death, Section 304, Pt I, specifies a penalty of life imprisonment or imprisonment of any kind for a term up to ten years and a fine. This sentence refers to Section 299, clauses (a) and (b).
Section 304, Pt II applies to crimes committed with the knowledge that they are likely to result in death, but not with the purpose to cause death or bodily damage that is likely to result in death. This phrase corresponds to Section 299, clause (c). However, if an offence is committed with the knowledge that it is so dangerous that it must almost certainly result in death or bodily injury that is likely to result in death, and the act is committed without justification, the offence is removed from the scope of Section 304, Pt II and brought under Section 302, as the offence would amount to murder under Section 300(4).
In the case of Vishwanath v. State of Uttar Pradesh (1959), the accused stabbed the dead with a knife that penetrated his heart as the deceased was attempting to carry away the accused’s wife and sister by force. The Supreme Court ruled that the suit fell under Section 304, paragraph II.
Section 302 : murder
Murder is punishable under Section 302. It specifies a penalty of death or life imprisonment, as well as a monetary fine. If a court finds an offender guilty of murder under Section 300, the court must sentence the criminal to death or life imprisonment. No other lesser punishment can be imposed by the court.
In 1973, the Code of Criminal Procedure was updated again, making life imprisonment the rule. The judge’s ability to impose a death sentence has been limited by Section 354(3) of the new Code, which requires the court to establish particular reasons for imposing a death sentence. When it comes to assigning a penalty for murder, it has now made life imprisonment the rule and death sentence the exception.
Reddy Sampath Kumar v. State
In Reddy Sampath Kumar v. State (2005), the Apex Court permitted the accused, a doctor, who was engaged in many murders of his in-laws, to be sentenced to life in jail. The court, however, barred him from collecting any remissions on auspicious occasions in order to serve as a deterrent. Similarly, in Lehna case (2002), the Supreme Court declared the death penalty imposed by the trial court and upheld by the high court on the accused of murdering his mother, brother, and sister-in-law to be unconstitutional and commuted it to life imprisonment, reasoning that the multiple murders, while brutal, were not the result of diabolic and sinister planning.
Conclusion
Though the categories of murder and culpable homicide appear to be similar in certain ways, they differ in terms of the degree of probability of death, or the gravity of the unlawful act. If the act committed by the offender is either a horrific crime or particularly hazardous conduct that results in the death of a person with no other consequences, it is more likely to be classified as murder than culpable homicide. If the offender’s conduct leaves the victim alive but in grave pain with a possibility of survival, it is referred to as culpable homicide, which is not the same as murder. Crimes such as rape and murder are becoming increasingly dangerous to women and children. According to recent estimates, these crime rates are rising every day. To address this, legislators may consider enacting legislation that includes deterrence theory and consequences. As a result, this idea may help to lower crime rates. There will be a decline in crime when punishments are strengthened.
This article is written by Kanisha Goswami, a law student of Guru Gobind Singh Indraprastha University. This article discusses about extortion and the difference between theft, robbery, and extortion.
The current article deals with the offence of extortion which comes under the purview of offences against property which extends from Section 383 to 389 of the Indian Penal Code. Extortion is an offence where any person intentionally induces or threatens or so put in fear to deliver any property or valuable security or any signed or sealed document which may be changed into valuable security of another person. Currently, extortion can be a threat of physical violence, the threat of destruction of property, or imminent criminal action. This could consist of physical harm, financial harm, destruction of property, or abuse of official power. In other words, making the threat is sufficient and the actual obtainment of money or property is not required to commit the offence.
Extortion (Section 383 IPC)
Extortion is the unlawful exaction of money or property through intimidation or coercion. In earlier times, threats of violence and blackmail were probably the two most popular ways to extort a person. Extortion was typically carried out by gangs who forced businessmen to pay up or to face the consequences.
Modern age extortion is cyber-extortion where threat and unpleasant consequences involve the disclosure of an organisation’s information or an attack on a company’s electronic infrastructure. If someone can hack into a business system and steal data, he or she can threaten to delete or release the data unless the business pays up.
The term ‘Extortion’ is defined under Section 383 of the Indian Penal Code, 1860 as “ When someone intentionally puts any person in fear of any hurt to that person, or any other person and thereby, deceitfully induces the person so put in fear to hand over that person’s property, or any valuable security or anything signed and sealed which may be changed into a valuable asset commit, extortion.” In short, it can be said that extortion is forcing someone to transfer his or her treasures through force or threat to cause harm. It is a wrongful loss to the property holder and wrongful gain to the extortioner.
Example
X threatens Y to deliver his brand new bike to him or otherwise, X will keep his daughter in wrongful confinement and will not give her food or water until he gets what he wants Y has no other option but to give his new bike to X. He thus induces Y to deliver his valuable thing to him. Here, X is liable for extortion.
M threatens to publish a defamatory libel concerning N unless N gives him his property. He thus induces N to give him property. M has committed extortion.
Essential elements of extortion
1. Deliberately putting a person in fear of hurt or injury
A person must have a mala fide motive to cause a wrongful gain to the extortioner and wrongful loss to the owner. The actual delivery of property is required to constitute extortion.
In R. S. Nayak v. A. R. Antulay (1984) Chief Minister A.R. Antulay interrogated the sugar cooperatives, whose cases were undecided before the government for consideration, and promised to look into their cases. The Supreme Court held that these facts do not constitute the offence of extortion. For extortion, fear and threat are essential elements. It was proved that the management of sugar cooperatives had not been put in any fear and the contribution was paid with their consent.
2. Dishonest inducement to the person
The essence of this section is dishonest inducement and obtaining delivery of property through that inducement. Therefore, wrongful loss or wrongful gain is essential. The offence of extortion is incomplete if there is no delivery of property by the property holder to the extortioner.
In Biram Lal and Ors. v. State (2006), the complainant lodged a file alleging that the accused and other members of the same community have established an illegal or unlawful offence by humiliating and imposing heavy fines on the members of the community. The Court held that if it was held that in extortion, the person who was put in fear must have been induced dishonestly to deliver his property. It is an essential feature as consent will be taken through the dishonest inducement of the owner. The act of inducement caused by the culprit had to make at least the consent of the victim to deliver his property even if the actual delivery does not take place but if it fails to bring out any effect, then the act would be considered only at the stage of an attempt to commit extortion.
3. Delivery of valuable security
The thing delivered under this Section may be any valuables or property, or any paper except blank sheet signed or sealed which may be changed into a valuable security. Valuable security is explained under Section 30 of IPC. If any minor was being beaten and forced to execute a promissory note, the accused who was using such force would be punishable under this Section.
In Anil B. Nadkarni and Ors. v. Amitesh Kumar(2001), the counsel for the accused pleaded that the essential ingredient of the extortion under IPC is a transfer of property which must be done to the accused by the property holder when he is under a threat or fear of an injury but the Court rejected this contention of the accused. The Court held that a person must deceitfully induce another person by putting him/her in fear of harm to deliver to any property or valuables.
Case laws on extortion
In Romesh Chandra Arora v. the State (1960), the accused took a picture of a naked boy and a girl by forcing them to take off their clothes and extorted all the money from them by threatening to publish the picture. Accused said it was his occupation to extort money by blackmailing girls and further he threatened the victims that he would circulate the pictures to the relatives of the girls. He was punishable under Code. Accused was held guilty as he threatened girls that he would ruin their reputation and extort money from them.
In the case of State of Karnataka v. Basavegowda Alias Chandra (1996), the accused (husband) and his wife (the complainant) went to the forest under the pretext of going to the friend’s wedding. He threatened to kill her if she didn’t give all of her ornaments to him. He hit her with a big stone and ran away when he saw two men coming. Here, the Bench convicted the accused under Section 384 of IPC for extortion of jewellery by threatening his wife’s life.
Punishment for extortion
Section 384 IPC
Section 384 of the Indian Penal Code, deals with punishment for extortion, “whoever commits shall be punished with imprisonment which may extend to 3 years, or with fine, or with both.” An offence under Section 384 is not enumerated under compoundable offences (Section 320). It is a cognizable and bailable offence and triable by any magistrate.
Section 385 IPC
Section 385 of the IPC states that if someone putting or attempting to put any person under threat of fear or harm or injury to commit extortion shall be punished with an imprisonment of two years or shall be charged with a fine or with both. The offence under this Section is cognizable. The offence is bailable and triable by any magistrate. This offence is non-compoundable.
Section 386 IPC
Section 386 states that anyone putting any person in fear of death or in fear of grievous hurt to that person or others shall be punished with imprisonment which may extend to ten years and also be punishable with a fine. The offence mentioned under this Section is cognizable, non-bailable, non-compoundable and triable by the magistrate of the first class.
Section 387 IPC
Section 387 states that any person who commits extortion, puts or attempts to put someone in fear of any grievous hurt or death to that person or any other individual shall be punished with imprisonment up to seven years, and also charged with a fine.
In Gursharan Singh v. State of Punjab(1996), the accused was held guilty of extortion under Section 387 for demanding money for the purchase of weapons to be used against terrorists and threatening the persons from whom they are demanding money and frightful consequences if money was not paid to them.
Section 388 IPC
Section 388 states extortion through the threat of false claim of an offence is punishable with ten years and with a fine. Accused extort money by setting any person in fear of a false accusation against that innocent person or other people
Example: C called D and said C will register a false complaint that D murdered someone if one lakhs is not given by D to him.D instantly paid that amount. Here, C will be punishable under Section 388.
Difference between extortion and theft
In theft, the offender takes property without the consent of the property holder, while extortion is committed by wrongfully obtaining the consent of the property holder.
In theft, the property must be movable, while in extortion the property can be either movable or immovable. Theft can be committed by one person but extortion can be committed by one or more. Force or compulsion is the essential ingredient in extortion while in theft, the element of force or compulsion is not mentioned.
In Dhananjay Kumar Singh v. State of Bihar (2007), the Court held that in theft, a thief’s intention is always to take property or valuables without the consent of the owner while in extortion, the consent must be taken by fear as the owner should deliver property by giving his consent.
Theft
Extortion
1. In theft, the property is taken away without the owner’s consent.
1. In extortion, the consent of the owner is obtained, but unlawfully.
2. Theft is only in respect of the movable property.
2. Property may be movable or immovable.
3. There is no element of force in theft.
3. Element of force is necessary for extortion.
4. There is dishonest removal of property.
4. The property is delivered with consent.
5. Property must be moved by a person who is committing the crime.
5. Delivery of property or valuables must be made by the owner.
6. Example: M is K’s servant. M dishonestly and without knowledge of K, the watch in K’s house was taken away by M. This amounts to theft.
6. C induces D to give money otherwise she will kill her daughter. C committed extortion here.
Difference between extortion and robbery
Robbery is only a subtype of extortion. In extortion victims often willingly hand over money, property, or valuable security to avoid violence and damage in the future whereas, in robbery, there is an instant threat to the victim.
In Venugopal and Others v. State Of Karnataka (2008), the Court observed that the large portion of robberies will be half theft, half extortion. Extortion is robbery if the offender at that time in the presence of another person put in fear of death, or instant injury, or wrongful restraint of that person or another person, or induces the person so put in fear of death, or injury, or unlawful restraint. There can be no case of robbery which does not sink within the definition of extortion or theft. Let’s understand this with an example:
B meets W and W’s child. B shows a pistol and puts that on W’s child and says he will kill him unless W gives him his wallet. W, in consequence, delivers his wallet, B has extorted the wallet from W, by causing W to be in fear of harm to his child who is right there. Here, B threatens W and to save his son W gives his wallet. Here, it is by no means improbable that W’s wallet may have been taken by extortion. B has therefore committed robbery on W.
In a robbery, the victim’s property or valuables are taken away without their consent but in extortion, the property or valuable security are taken away from the victim with their consent, though it is unwilling.
Robbery
Extortion
1. Robbery is the infuriating form of extortion. Extortion + presence of the culprit + immediate delivery of property is robbery.
1. Extortion is the aggravated form of theft. It may convert into robbery under some situations (Section 390) of Indian Penal Code)
2. Robbery may be converted into dacoity if the persons increased to five.
2. Extortion includes blackmailing.
3. Punishment is higher for robbery.
3. Punishment is lower than robbery.
4. People do not give any consent to the robbers.
4. People give consent to extorters.
5. The element of fear exists here.
5. Element of fear exists here.
Conclusion
In layman’s words, extortion is an offence where a person forces another person to transfer his property or valuable security under the fear of an injury or threat. Extortion is punishable under Section 384 of the Code,1860. A couple of ingredients have to be satisfied to prove another person guilty. There should be fear or injury or threat, dishonest intention, and a transfer of property. However, the courts have now taken a different approach, if the complainant successfully proved that the accused had committed an offence whereby all ingredients of the offence may not be satisfied, the court may convict the accused of extortion.
This article is written by R Sai Gayatri, from the Post Graduate College of Law, Osmania University. This article deals with the passing off of an unregistered trademark and the landmark case of Cadila Healthcare Ltd. v. Cadila Pharmaceuticals, 2001.
Table of Contents
Introduction
Imagine a situation where you are unwell and you are in search of your medicine, you want paracetamol with the name ‘Fevergo’ for your treatment, however, you get a tablet by the name ‘Fevertab’. Believing ‘Fevertab’ to be the same as ‘Fevergo’ you buy it and the tablet doesn’t suit you. Later, you realise that it was not the tablet you were looking for, you were misled by the name. By this example, it is clear that such similarity between the names of medicines might lead to life-threatening situations as the composition may differ extensively. In the law of intellectual property, there is a catena of cases that are premised upon unregistered trademarks and the action of passing off. The case Cadila Healthcare Ltd. v. Cadila Pharmaceuticals, 2001 is a landmark case that deals with the passing off of an unregistered trademark.
Meaning of passing off
Passing off refers to the situation where one person represents his goods or services to people as that of another person. When a false representation is made by the owner of a certain product or service in order to mislead his customers into thinking that such goods or services are that of another entity, then such action will be considered as passing off.
An unregistered trademark is a trademark that is not registered under a patent or trademark office. Such unregistered trademarks are often subject to the action of passing off. Section 134(1)(c) of the Trademarks Act, 1999 deals with the law of passing off while Section 27 provides a common-law remedy for the action of passing off.
Passing off often leads to damage to the goodwill and reputation of the actual product or service owner. Thus, it becomes pertinent to examine whether a person intends to deceive people or if they want to create confusion between two entities.
In order to establish a case of passing off, the owner must prove that their products or services have goodwill and that false claims are being made by the user. The owner must also prove that they have incurred a loss due to such creation of false claims of the user.
Quick insights on the case
NAME OF THE CASE
CADILA HEALTHCARE LTD. V. CADILA PHARMACEUTICALS, 2001
CITATION OF THE CASE
2001 (2) PTC 541 SC
NAME OF THE COURT
HON’BLE SUPREME COURT OF INDIA
APPLICANT IN THE CASE
CADILA HEALTHCARE LTD.
RESPONDENT IN THE CASE
CADILA PHARMACEUTICALS
HON’BLE BENCH
JUSTICE B.N.KRIPALJUSTICE DORASWAMY RAJUJUSTICE BRITISH KUMAR
DATE OF THE JUDGEMENT
26TH MARCH, 2001
Facts of the case
In the present case, Cadila Healthcare Ltd. (the appellant) and Cadila Pharmaceuticals (the respondent) were two pharmaceutical companies that introduced medicine for the treatment of cerebral malaria commonly known as Falciparum. The appellant launched the medicine by the name and style ‘Falcitab’ and the respondent named their medicine ‘Falcigo’. The appellant got their trademark registered in 1996 after being granted permission by the Drugs Controller of India, whereas, the respondent registered their trademark in 1997.
Later in the year 1998, the appellant became aware of the fact that the respondent is manufacturing, distributing and selling a medicine similar to that of the appellant in name and use, thus, the appellant filed an injunction before the Vadodara District Court to restrict the respondent from doing any further trade. However, the Vadodra District Court gave the judgement in favour of the respondent stating that the two medicines were different from each other based on formulation, appearance and price. The Court also stated that, since both the medicines are ‘Schedule L’ category drugs and are sold to hospitals directly there will not be any likelihood of the public being confused. Aggrieved by this decision, the appellant appealed before the High Court. The appellants had no luck this time too, as the High Court dismissed their appeal on the basis that there was no possibility of any confusion between both the medicines and thus, there was only a slight chance of passing off. Finally, the appellant approached the Supreme Court.
Issues raised in the case
Whether or not the sale of the ‘Falcigo’ drug by the respondent amounts to passing off?
Whether the mark of Cadila Pharmaceutical i.e., ‘Falcitab’ is similar to the mark of Cadila Healthcare i.e., ‘Falcigo’?
Contentions of the parties
Appellant’s contentions
Cadila Healthcare Ltd., i.e., the appellant contended that a similar trademark to theirs is being used by Cadila Pharmaceuticals, i.e., the respondent for the treatment of falciparum malaria that has a high possibility of creating confusion and deception among the public. The appellants stated that the respondent is passing off a drug of the appellants by making use of a deceptively similar trademark name called ‘Falcitab’ for the treatment of a similar ailment.
The appellant further mentioned the contention of the respondent stating that the mark of the drug is only used for the ‘Schedule L’ category of drugs that are directly sold to hospitals and clinics and thus, the possibility of any confusion being created is groundless. Even if the drug is directly sold to hospitals or clinics, the possibility of confusion and error cannot be overseen even though it is prescribed by a trained medical practitioner, they are not infallible.
Respondent’s contentions
Cadila Pharmaceutical contended that the prefix ‘Falci’ in their trademark name ‘Falcitab’ was taken from the disease ‘Falciparum’, and it is a common practice in the pharmaceutical industry to name a medicine after the disease it is supposed to cure.
The respondent further contended that the said drug belongs to the ‘Schedule L’ category wherein such medicines are directly sold to hospitals or clinics, unlike the ‘Schedule H’ drugs which are sold in the retail medical shops. Due to this reason, the possibility of the public being confused or deceived between both drugs is unlikely.
Judgement of the case
The Hon’ble Supreme Court stated that by the means of this judgement it does not intend to involve itself with the judgements passed by the lower courts, the said judgement is passed to establish the principles to be followed while dealing with an action of passing off with special regard to medical products.
The Apex Court further went into the detailed aspects of a catena of judgements including domestic and foreign jurisdictions after which it stated that no matter how intricate and precise those judgements are, the same cannot be applied to the instant case as there is no common language in India. The Indian market consists of a huge number of people who don’t know English or are illiterate, thus such consumers are supposed to be considered prior to making any decision as the confusion regarding the identity of the product might lead to grave effects on public health.
The Hon’ble Court also observed that even if the drugs in dispute belong to ‘Schedule L’ which are directly sold to the hospitals or clinics, the possibility of creation of confusion between both the drugs cannot be dispensed with even though it is prescribed by a medical practitioner.
Finally, the Hon’ble Supreme Court established certain principles to consider while dealing with a case of passing off and to decide the existence of deceptive similarity. The principles are as follows –
To check the nature of the marks which includes word marks, label marks and composite marks.
To check the degree of similarity between such marks which include ideological and phonetic similarity.
To check the similarity of nature, performance and character of the goods of both traders involved.
To identify the class of consumers who might buy the goods based on the marks they require, their intelligence, education and the degree of care they might employ in buying or consuming such goods.
To check the nature of the goods for which they are used as trademarks.
To identify the mode of purchase when buying such goods.
Any other such related circumstances which may be relevant in the matter of dissimilarity between such competitive marks.
Cases referred to in the judgement
Corn Products Refining Company v. Shangrila Food Products Limited, 1960
In this case, the Hon’ble Supreme Court had to deal with an appeal concerning a decision given by the Registrar regarding the registration of a trademark. The respondent i.e., M/s Shangrila Food Products had applied for the registration of the mark ‘Gluvita’ and the appellant i.e., M/s Corn Products, the owner of the registered trademark ‘Glucovita’, filed its objections to the registration of the respondent’s mark.
The question before the Court was whether there was a possibility of confusion being created between the two marks i.e, ‘Glucovita’ and ‘Gluvita’. The Court in this regard stated that the present case depends on the concept of first impression. It was further stated that in deciding a question of deceptive similarity and confusion between two marks, only the test of their close resemblance is not sufficient, the trade connection must also be considered. Here, the Court held that the two marks were so similar so as to cause confusion to the public and thus, allowed the appeal.
F. Hoffmann-La Roche and Co. Ltd. v. Geoffrey Manner and Co. (P) Ltd., 1969
In this case, the appellant i.e, F. Hoffmann-La Roche and Co. Ltd. was the owner of the trademark ‘PROTOVIT’ whereas the respondent i.e, Geoffrey Manner and Co. (P) Ltd. applied for the registration of the mark ‘DROPOVIT’. The appellant contended that the respondent’s mark is deceptively similar to their mark and that such mark is not an invented word but only descriptive in nature. Thus, the same question of whether the respondent’s mark amounts to deceptive similarity or not and whether the mark can be considered as an invention or not was brought before the Hon’ble Supreme Court.
It was stated by the respondent’s that their mark ‘DROPOVIT’ means ‘drop of vitamin’, and thus, it is an invented word. Subsequently, the Court held that since the mark ‘DROPOVIT’ is an invented word and does not fall under the ambit of a descriptive word, there is no possibility of deception or confusion being created among the consumers. The appeal was therefore dismissed by the Court.
Critical analysis
The Hon’ble Supreme Court established various principles to be followed in the cases of passing off, mainly concerning medical products. The Hon’ble Court also confirmed that prior to manufacturing a drug, the applicant must prove to the Drug Controller General that their drug shall not cause any confusion or deception in the market by making use of a particular brand name.
The Apex Court did not involve itself in the decision given by the lower courts and it further gave directions to the lower courts to dispose of the suit expeditiously. However, the present case was reverted back to the lower court, it was to follow the principles established by the Apex Court while deciding the case.
Conclusion
In the present case, the Hon’ble Supreme Court gave its judgement after carefully interpreting various domestic and foreign judgements. More importantly, the Court observed that, even though both the drugs belonged to the ‘Schedule L’ category, there was a high probability of confusion being created between them leading to a case of passing off and deceptive similarity.
Generally, a case of passing off of non-medical products only leads to damage of goodwill or economic loss, however, in the case of medicinal products, the damage might lead to grave effects on the lives of people. The Apex Court ruled the present case as a case of deceptive similarity, and thus, the decision was given in favour of the applicant, i.e., Cadila Healthcare Ltd.
This article has been authored by Anindita Deb, of Symbiosis Law School, NOIDA. This article aims to carry out an in-depth analysis of the provisions which are covered under Section 294 of the Indian Penal Code, 1860.
Table of Contents
Introduction
Obscenity is a global and complex issue because it is linked to other issues such as decency and morality, which differ from society to society. What is immoral for one person may not be immoral for another. In terms of the meaning and definition of obscenity, it is difficult to provide a precise and specific definition given the society’s cultural, religious, and social diversity. It is true that the definition of obscenity varies from time to time. What is obscene today should not be considered obscene in the future. Indian laws, as well as the Supreme Court, have been unable to precisely define obscenity.
However, the Indian legal system has various provisions that deal with obscenity and punish acts of obscenity. Section 294 of the Indian Penal Code, 1860 (IPC) is one such provision. It punishes performance of obscene acts, songs, ballads, or words. According to the Section, anyone who, in the absolute annoyance of others or the general public, commits an obscene act in any public place, or particularly commits to doing things like reciting, singing, or uttering an obscene song, ballad, or words, near or within any public place, shall be punished with imprisonment for a term that can extend to 3 months, or with a certain amount of fine, or with both.
The objective of this article is to analyse the provisions contained within Section 294 of IPC and what are the issues and controversies surrounding these provisions.
A brief history of obscenity under Section 294 IPC
The law dates back to colonial times and has roots in the Victorian era. Section 294 of the IPC, along with Sections 292 and 293, deals with obscenity. The term ‘obscenity,’ or what constitutes ‘obscene,’ is not defined in the IPC. In fact, Section 292 did not exist in its current form when the Code was written in 1860. It was inserted in 1925, so it is colonial, but with roots in the Victorian sense of puritanical existence, where the British were all suited and booted and thus not very comfortable with showing skin. There were preconceived notions of what was ‘moral’ and ‘acceptable.’
We are aware of the trials of Saadat Hasan Manto, the great Urdu writer who was tried for obscenity no less than six times – three times in British India prior to 1947 (for his works Dhuan, Bu, and Kali Shalwar) under Section 292 of the IPC, and an equal number of times in Pakistan after independence (for Khol Do, Thanda Gosht and Upar Neeche Darmiyaan). He was only fined once, but in our system, the process itself becomes the punishment, and some of these trials left him completely exhausted.
What can be considered “obscene”
The Oxford dictionary defines obscene as “offensive or disgusting by accepted moral and decency standards.” However, the definition of ‘obscene’ is not as simple for lawyers to unanimously agree on. Section 292 of the IPC states that an obscene book or object must be lascivious or prurient, or have the effect of depraving or corrupting someone. The terms ‘lascivious,’ ‘prurient,’ ‘depraved,’ and ‘corrupt’ have not been clearly defined, leaving room for judicial interpretation.
For their part, the courts have developed tests to determine whether something is ‘obscene.’
Tests of obscenity
Indian society has always been conservative when it comes to women’s purity. It is regarded as a critical point in preserving the family’s reputation. There are three main tests to determine whether the content of any art or gesture is truly obscene or not.
Miller test
The Miller test is a frequently applied test in the United States; it is named after the United States Supreme Court’s decision in Miller v. California in 1973. Due to online obscenity cases, this test had some challenges. Melvin Miller sent the restaurant’s manager five brochures, each containing notable images and drawings of men and women who were involved in various sexual activities. The manager filed an Obscenity case against Mr Miller after reading the mail, and he was prosecuted for violating California law. The Miller test is divided into 3 parts, which are as follows:
The average person enforcing modern community standards would find that the work, as a whole, appeals to the prurient interest.
Whether the work depicts or describes sexual conduct as defined by the applicable state law in a patently offensive manner.
Taken as a whole, the work falls short of serious literary, artistic, political, or scientific value.
The work is only considered obscene if all three conditions are met. The first two points of this test pertain to community standards, while the final point pertains to an individual in the United States as a whole.
Hicklin test
This legal test for obscenity is based on the case Regina v. Hicklin (1868). The entire case was predicated on the interpretation of the word “obscene.” This is a very liberal test. Henry Scott resold anti-Catholic pamphlets titled “The Confessional Unmasked,” depicting the tainting of the Roman Priesthood, the unrighteousness of the confessional, and the questions raised on female confessions. Benjamin Hicklin, the bureaucrat in charge of such orders as recorder, revoked the order when the pamphlets were ordered to be destroyed because they were obscene. Scott’s intention, according to Hicklin, was to reveal significant issues concerning the Catholic Church, not to corrupt public morals; thus, Scott’s intention was innocent.
In the court decision of Ranjit Udeshi v. the State of Maharashtra (1964), the Supreme Court applied the Victorian-era Hicklin test. The obscenity was assessed using the standard of a person who was sensitive to immoral influences and was likely to be manipulated by the material under consideration. A wide range of material could be deemed ‘obscene’ using this test.
The judiciary has significantly reduced the scope of obscenity over the years. The Supreme Court used the American Roth test rather than the British Hicklin test in Aveek Sarkar v. the State of West Bengal (2014). Obscenity was to be evaluated from the perspective of the average person, using current community guidelines. The modern community standards test considers changing values in society and how something that was considered obscene ten years ago would not be considered obscene today.
The Hicklin test was overturned in 1933 in the United States v. One Book Called Ulysses, which was based on an English case in which a district judge allowed James Joyce’s “Ulysses” to be sold in America. Judge John M. Woosley focused on the work’s literary value and its effects on a person with average sexual instincts. At the time, the term obscene was defined as having the potential to arouse sexual desire or lead to sexually impure and salacious thoughts. The US government appealed Woolsey’s decision, but the US Supreme Court upheld his finding that Ulysses’ book did not contain obscene material.
Community standards test
This test is often applied in India. According to the Community Standards Test, art, gestures, or content are only considered obscene if the dominant theme as a whole is in violation of current standards prevailing in the community.
Section 294 IPC in detail
Essential ingredients
The following points can be identified as the essentials of Section 294:
Performing any obscene act in a public place, or
Anyone sings, recite or utters any obscene song, ballad or words in or near any public place
An annoyance is caused to a particular person or people in general by such an act.
A person cannot be punished under this Section if all the above-mentioned essentials are not fulfilled. If even one of the factors is missing, the act or song will not qualify as obscene.
Punishment
Anyone found guilty of obscene acts or songs under Section 294 of the IPC faces imprisonment for a term that can last up to three months, a monetary fine, or both.
Nature of Section 294 IPC
Bailable offence
Bailable offences are offences that can be granted bail in their entirety; it is purely a matter of right, and the arrested person is released after bail is granted. It can be given by a police officer who is in the custody of the accused in the course of law. Section 294 of the Indian Penal Code provides for bail. When compared to non-bailable offences, bailable offences are comparatively less serious.
Cognizable offence
A cognizable offence is one in which a police officer may, under or in accordance with the law, arrest without a warrant, whereas a non-cognizable offence is one in which the police officer responsible for that case will have no authority to arrest the person involved without a warrant. They are regarded as less serious than cognizable offences, which include cases in which the Police are given the authority to arrest someone without a warrant. The violation of Section 294 of the Indian Penal Code is a cognizable offence.
Non-compoundable offence
Compoundable offences are those that can be compromised, i.e. the complainant can agree to withdraw the charges levied against the accused, whereas non-compoundable offences are those that cannot be compromised. Section 294 is non-compoundable in nature.
How to file or defend a case under Section 294 IPC
To file a case under Section 294 of the Indian Penal Code, follow these steps: A written complaint by a lawyer can be the first point of contact for starting or registering an FIR in any Police Station where the complainant has clear permission to provide details about the incident and for it to be registered.
If the accused wishes to defend himself or herself against the accusations levelled against him or her under Section 294 of the Indian Penal Code, he or she can hire a capable lawyer who understands the entire process of the circumstances so laid out in this particular case and for the defence of any case which depends on the circumstances that are emphasised in this case, with the clear purpose of reducing or exempting the punishment levelled against the accused.
Obscenity v. Freedom of Speech and Expression : a constant conflict
The right to free expression enshrined in Article 19 is not absolute, which means it is subject to certain limitations, the parameters of which have been defined by the Constitution itself. These restrictions are commonly referred to as “reasonable restrictions,” and they are outlined in clauses 2–6 of Article 19 of the Indian Constitution. Sovereignty and integrity of the state, security of the state, friendly relations with foreign countries, public order, decency and morality, contempt of court, defamation, and incitement to an offence are among the grounds. The State may, by law, limit the enjoyment of the freedoms enshrined in Article 19(1). The use of the State’s power to limit freedoms through legislation is known as executive action.
One of the grounds under Article 19(2) of India’s Constitution based on which reasonable restrictions on freedom of speech and expression can be imposed is decency and morality. Such concepts differ from country to country, depending on the standards of morality of contemporary society.
The laws relating to obscenity have always been an issue of debate and deliberation for the Indian judiciary. Indian courts have frequently resolved the debate between morality and freedom in favour of artistic freedom, as in theM F Hussain case in 2008 and thePerumal Murugan decision in 2016. The Supreme Court ruled in the latter case that “art is often provocative and is not meant for everyone”—material cannot be labelled as obscene simply because it is unpalatable to one segment of society. The constitutionality of Section 292 was challenged in the Ranjit Udeshi case and the Court, by applying the Hicklin test, did find that the text of the novel “Lady Chatterley’s Lover” was indeed obscene and its sale was prohibited under Section 292. As far as it went regarding the question of the unconstitutionality of the Section, the Court justified it as falling within the purview of reasonable restrictions under Article 19(2) of the Constitution.
Celebrities booked under Section 294 IPC : a case study
Twinkle Khanna called out for “obscene” acts during ramp walk
Akshay and Twinkle made headlines in 2009 when they were accused of obscene behaviour. The actor stood in front of his wife Twinkle, who was sitting in the front row, and asked her to unbutton his jeans when he was walking the ramp. While this appeared to be a harmless joke, a social activist claimed it was obscene and filed a complaint against the celebrity couple.
Milind Soman booked for naked beach run
The famous model-actor was booked under Section 294 when he posted a picture of himself on Instagram running naked on the beach on his 55th birthday. This offended a large number of internet users and subsequently, an FIR was also filed against him under various other relevant sections of the IPC and the Information Technology Act, 2000.
Poonam Pandey arrested for ‘obscene’ shoot
Just a day after the arrest of Milind Soman, Poonam and her husband Sam Bombay made headlines for being arrested by the Goa police. Poonam and Sam had been accused of making an obscene video in Goa, according to the FIR. The couple was arrested on November 5 and later released on bail. Sections 292 (taking obscene photos), 293 (circulating obscene photos on social media), 294 (for the obscene act), and 447 (trespass) of the Indian Penal Code, as well as Sections 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986 and Section 67A of the IT Act, were applied for charging Poonam and Sam.
Karan Johar booked for his role as “roastmaster”
In 2014, 14 artists, including Karan Johar including several A-list Bollywood stars, took part in a roast show, the video of which went viral. A lawsuit was filed against all of the celebrities who were in attendance at the show. Roastmaster Karan Johar was chastised for the show’s ‘obscene’ content and was subsequently booked under Section 294.
Shilpa Shetty and the Richar Gere kiss
Recently on 25th January 2022, Shilpa Shetty was finally cleared of the charges levelled against her under Section 294 for being kissed by Hollywood star Richard Gere at an AIDS awareness event held in Delhi about 15 years ago. Footage showed the Hollywood star kissing Ms Shetty on the cheek. The charges were only recently dismissed as “groundless,” with the Court stating that she was the victim of an unwanted advance. The kiss sparked protests from radical Hindu groups at the time, who saw it as an insult to Indian values.
Case laws : observations made by courts that provided some clarity into the provisions of Section 294 IPC
In the case of Pawan Kumar v State of Haryana (1966) it was stated that the courts should be aware of changing moral perspectives and concepts in order to understand the impact of Section 294 on today’s society and its standards, as well as changing views of obscenity.
The Karnataka High Court, in the case of Patel H.M. Malle Gowda vs The State Of Mysore (1972) clarified that because annoyance, an important component of the offence under this Section, is commonly associated with mental state, it is difficult to establish it as a fact through positive evidence. It can almost always be deduced from proven facts.
The Bombay High Court held in Narendra H. Khurana v. Commr. of Police (2003) that cabaret dances where inappropriate and obscene acts are performed do not attract the provisions of Section 294 IPC unless evidence of “annoyance to others” is provided. It is unclear how the contested act could annoy those who do not watch it or affect public order. It’s like saying that watching a Hindi film with a dance sequence in which the dancers are provocatively dressed will disrupt public order. It also stated that a cabaret where a person enters after buying a ticket, cannot constitute a “public place” under the Section.
It was established in the case of Saraswathi v State of TN (2002) that the main component of the offence under Section 294(b) of the I.P.C. is uttering words in a public place that annoys others.
Conclusion
India is still a country whose population is very conservative regarding what is obscene and what is not. In some cases, even so much as showing a lot of skin can be considered ‘obscene’. The term obscenity is derived from one of those words whose meanings are ambiguous or unclear in Indian law. What constitutes obscene content is entirely determined by the lawyers and judges and how they interpret the term ‘obscene’. It is true that the definition of obscenity varies from time to time. What is obscene today should not be considered obscene in the future. We understand that laws must be changed from time to time, but there is a need for an accurate definition of obscenity. It is too important to mention that in our country, the appropriate level of obscenity in movies, web shows, arts, images or pictures, and literature has not yet been defined.
This article is written by Anindita Deb, pursuing BBA.LLB. from Symbiosis Law School, NOIDA. This article covers Section 379 of the Indian Penal Code in a detailed manner.
Apart from crimes against humans, the State, marriage, and public order, the Indian Penal Code, 1860 also includes crimes against property. These provisions are included in Chapter 17 of the Code. Theft, extortion, robbery, dacoity, and other aggravated variations of these crimes are examples of such offences. Theft is the most basic and widespread offence against property under the IPC.
This article discusses the punishment of theft under Section 379 of the Indian Penal Code, and its related provisions.
Theft
Theft is defined in Section 378 of the IPC as the dishonest removal of moveable property “out of the possession of any person” without that person’s consent. The Code contains five explanations for the said definition, each of which is accompanied by 16 examples.
In theft, intent (in any form, such as dishonesty) plays a significant role. However, Section 378 (Illustration clause ‘p’) suggests that if something is taken under a claim of right, the thing taken cannot be dishonest if the claim is fair, good, and bona fide. As a result, such taking cannot be considered theft.
Ingredients for theft
The crime of theft constitutes several ingredients or requirements. To complete the offence of theft, all of these requirements must be met. The criminal is not guilty of theft if any of them are missing. The following are the key attributes of theft that must be proven in any given case in order to punish a person under the provisions of Section 379, which lays down the punishment for theft:
1. Dishonest intention to take property
When committing theft, it is essential that the criminal has dishonest intent. Dishonest intent generally means that the offender causes the victim to suffer unfair losses while gaining wrongful profit.
Dishonest intent to take property is one of the important components in the crime of theft. One of the most crucial deciding factors in determining whether or not an act is a theft is the intention. At the time of the moving property, the intent to theft must be present.
The prosecution bears the entire burden of establishing that the defendant had this dishonest intent. The defendant is not guilty of theft if he or she did not intend to commit theft.
2. The property must be movable
The stolen property must always be movable rather than immovable. Therefore, no one can commit theft of land, buildings, or other valuables. Theft does not apply to things connected to the earth that are not movable. Once they are detached from the soil, they might become movable properties under Section 378. Trees, for example, are immovable property, but if someone cuts them down and removes them, he is committing theft.
3. Taking the property out of possession without consent
The prosecutor must have possession of the property in question, but he does not have to be the owner. In addition, the culprit must deliberately remove the property from the prosecutor’s possession. Thus, simply claiming ownership of a property does not suffice; the offender must also take possession of it.
Second, he must take possession of the property without the consent of the prosecutor. This consent might be expressed or implied.
4. Property must be moved
The offender must move the property in order to complete the theft and acquire possession of it. To put it in another way, simply having physical possession isn’t enough; he needs to move it under his actual control.
Removing an obstruction that is stopping the property from moving is equivalent to moving. For example, merely opening the doors of a garage in order to drive a car out of it will also constitute theft.
Larceny and theft : what is the difference
Larceny is defined as the unlawful taking of another person’s personal property with the goal to deprive them of it. Petty or simple larceny is usually a misdemeanour, involving the theft of property valued at less than the local threshold for grand larceny, whereas grand larceny is usually a felony. Theft, on the other hand, is when someone takes someone else’s property with the goal of depriving the rightful owner of it.
As a result, we can deduce that larceny is a type of theft limited to personal property. Furthermore, we can also deduce that theft is a broad phrase that encompasses larceny. Hence, we can conclude that larceny and stealing are two distinct crimes.
Section 379 : what are the provisions
Theft is punishable under Section 379 of the IPC by up to three years in prison, a fine, or both. Other sections that follow contain harsher penalties for theft in aggravating circumstances. Theft in a building, tent, or vessel used for housing or residence, for example, is punishable under Section 380 of the IPC. The purpose of this provision is to increase the security of properties in residential properties. This carries a penalty of up to 7 years in prison as well as a monetary fine.
Nature of Section 379
Bailable or non-bailable
Non-bailable
Cognizable or non-cognizable
Cognizable
Compoundable or non-compoundable
Non-compoundable
Triable by
Any magistrate
Extortion
Extortion, according to Section 383 of the Indian Penal Code, is an act of putting someone in fear of danger or other damage in order to gain his property or any other valuable object.
The following illustration can help you understand the definition of extortion:
X warns Y that if Y does not pay Rs.1 crore on his birthday, he will kill his wife. This is an obvious case of extortion on the part of X.
The principal purpose of Section 383 is to obtain the delivery of property or any other valuable thing by dishonest inducement. To be more specific, extortion requires the desire to inflict unlawful loss to one party and wrongful gain to another.
Ingredients for extortion
In order to qualify as a crime of extortion, the following ingredients must be present:
Intentionally putting another person in danger: The individual must have the purpose to create unlawful gain to one person and wrongful loss to another in a way that puts another person in danger. To be considered extortion, the property must be delivered in person.
The intention of which is to deceitfully induce the person who is put in fear: The goal of the crime should have been to enhance the offence of extortion.
To deliver property or valuable security: For the clause to apply in its entirety, the actual transaction must have happened, if at all, and for whatever reasons.
How is extortion different from theft
Extortion differs from theft in a number of ways, as the two terms are completely different. Some of the distinctions are listed below.
When it comes to distinguishing between theft and extortion, the delivery of property is a key issue. Theft occurs when the property is removed or taken without the agreement of the person who owns the thing in question. Extortion involves the handover of property with consent that has been obtained illegally by instilling fear.
Extortion can be used against both immovable and moveable objects. In the event of theft, however, only a moveable object can be the target.
The mode of delivery of the property is another major distinguishing feature. The property is taken by the offender without the approval of the property’s possessor in the event of theft. As a result, we can deduce that the item is taken by the offender in the case of theft, and the mode of delivery is the dishonest intention on the part of the culprit. In the instance of extortion, however, the property is transferred to the offender by the person in possession of the property because he or she has been convinced to fear danger to himself or to a person of his or her interest. Hence, extortion is carried out by acquiring the approval of the property owner, although this is done wrongfully.
The table below will help sum up the differences between extortion and theft:
Factor of difference
Theft
Extortion
Defining Section(In IPC)
Section 378
Section 383
Consent
No consent is obtained.
Consent is obtained, but wrongfully.
Property
Only movable property is the subject of the offence.
Both movable and immovable property may be the subject of the offence.
Element of Force
No force is used
Use of force is employed.
Factor of Fear
No factor of fear exists.
A factor of fear does exist.
Scope
Narrow : as it covers only the cases of movable property.
Wide: as it covers any kind of property, valuable security, or anything that may be converted into a valuable security.
Effect
Property is dishonestly removed.
Property is delivered due to fear of injury.
Case laws
In the case of Nobin Chunder Holder, (1866) 6 WR (Cr) 79, the accused discovered some outside fisherman poaching on his master’s fisheries while acting in the best interests of his owner. He took control of their nets and kept them under his control. The court determined that his purpose was to safeguard his master’s interests rather than to steal the fishermen’s nets. It was held that the accused cannot be punished under Section 379 of the Indian Penal Code.
In the case of Shriram v. Thakurdas, (1978) the Chief Officer of the Municipal Corporation of Mumbai demolished an unlawful construction. He, the overseer, and others were accused of stealing the debris that had accumulated. They removed debris without intending to generate a wrongful gain, according to the Court. As a result, it is not a theft.
The prosecution demonstrated in State of Himachal Pradesh v. Prem Singh (1989) that the government owns the forest and that the trees were cut down by the accused. It was held by the court that it was theft and the accused was punishable under Section 379.
In Pyare Lal Bhargava v. State of Rajasthan (1963), The appellant accused was found guilty under Section 379 of the Indian Penal Code. He was a Superintendent in the Chief Engineer’s office when he had a file removed from the Secretariat by a clerk, took it home, and gave it to his friend, the co-accused, who replaced certain documents with others. The Court held that removing an office file from a Chief Engineer’s office for a day or two and making it available to a private individual for a day or two is theft since the act fulfills all the ingredients of theft under Section 378 of IPC and can be punished under Section 379.
The Court stated in State of Maharashtra v. Vishwanath (1979), in which 5 accused were involved in the transfer of possession of seven tyres and seven tubes from a railway shed, that the transfer of possession of movable property without the consent of the person in possession does not have to be permanent or for a long period of time, nor does it have to be found in the accused’s custody. Even a temporary transfer will be enough to meet the criteria under Section 378.
In the case of K. N. Mehra v.The State of Rajasthan (1957), The Appellant attended the Indian Air Force Academy in Jodhpur as a training cadet. Mehra was scheduled to fly in a Dakota as part of his training with Om Prakash, a flying cadet, but Mehra and Phillips took off in a Harvard H.T. 822 at around 5 a.m. (which was not the prescribed time). This was done without any authorization or observance of any of the formalities required for an aircraft flight. They were discovered to have force landed in Pakistan. They contacted the Indian High Commission a few days later, and on their way back to India, they were arrested in Jodhpur and charged with aircraft theft. The Court stated that the absence of the person’s consent at the time of moving and the presence of dishonest intent in so taking at the time are essential ingredients of theft and hence the appellant was rightfully convicted of theft.
Conclusion
Theft is a crime according to Indian criminal law and is punishable under Section 379 of IPC. in order to qualify as theft, it is important that all the ingredients or conditions of theft are met.
Theft differs from extortion and larceny. There are also aggravated forms of theft, i.e., robbery and dacoity. Intention plays a very important role in any theft. This is due to the reason that you cannot steal if you do not intend to do so in the first place. Hence, barely moving property from someone’s possession without any dishonest intention cannot qualify as theft.
Intellectual property (IP) is an intangible property created by human intellect. In simple terms, IP is a creation of the mind. Intellectual property rights (IPRs) are the legal rights given to the creator. The commonly known IPs are copyright, trademarks, patents, industrial designs, geographical indicators, etc. Governments all across the world have enacted rules and regulations to ensure that innovations are protected and commercialised. The goal is to ensure that people are motivated to invest in fresh ideas and creations while also protecting them from competitors who just copy them. To put it another way, intellectual property is the single most significant tool for facilitating the market for ideas.
IP commercialisation transforms an idea or innovation into a product or service which is profitable in nature. The sale of such a product or service is the most prevalent practice used for monetisation of creativity. IPRs play a very significant role in such circumstances. It prevents the illegal exploitation of protected features by the competitors.
For instance, when a medical company comes up with new medicine, its formula is a result of long-term investment and thus, the company should be able to yield the returns of the investment. It is clear that commercialisation of IP entails more than simply filing applications to safeguard and defend your intellectual property. There are a lot of ways to commercialise IP like assignment, joint ventures, licensing, collaborations, partnerships, etc. We will be exploring all the ways through which monetisation of creativity can be done.
Initial steps for commercialisation
Step 1 : market analysis
Analysis of the market where the product or service is to be commercialised marks the commencement of the process of IP commercialisation. The term ‘market’ here refers to the geographical market as well as the product market. The geographical market covers the country or countries in which the IP is to be commercialised whereas the product market covers factors like the demand of the product or service, competitors, similar products, etc. The following factors must be considered:
Estimated value of IP,
Market’s size,
Demand of the product or service,
Competitors,
Legislative framework of that State,
Potential business partners.
Step 2 : IP audit
The next prudent step is an IP audit. “An intellectual property (IP) audit is a tool for identifying your potential IP assets.” It is a methodical inspection of all the IPRs either owned or used by the company. It includes IPRs which are either obtained from a third party or granted to a third party. This process helps in risk management by assessing the risk and coming up with solutions. The best practices for IP management can be developed and implemented through this review process.
IPs are intangible in nature but play a significant role in a company. There is more to a business than just physical assets. It is important to assess all the intangible assets developed or created by the company since its commencement. This process should cover the following things:
Name of the business/company (whether it has been registered as a trademark).
Name or style or any other indication that is used by the company to sell its products or services.
Any unique product that the company has developed or invented. (Can be registered as patent.)
Any brand-new process or innovative practices which comes under the purview of trade secrets or know-how.
Style of packaging or the shape of the products which differentiates it from the other products. (Can be protected by registering it as industrial designs or even without registration, it is protected under copyright.)
All the legal documents (protected under copyright laws). It includes contracts, software programs, memorandums etc.
Client lists and their personal information and preferences should also be included in IP audit.
Advantageous internal policies, compliance procedures, quality assurance policies and internal working practices should be recognised as trade secrets.
This process will help the company to list all the assets of the company and ensure that they are protected and cannot be infringed. After auditing, the company can file for registration for new IPs discovered or renew the old IPs which have expired.
Step 3 : IP valuation
After listing down all the registered and unregistered IPs, the next step is to estimate their value in economic terms. The monetary value of the IPRs is directly proportional to the economic benefits they will provide in the future. It may depend on the following factors:
Ability to eliminate the competitors from entering into the market.
Usefulness to the owner of the IP either directly or through sale.
There are times when IPs are the most valuable asset of a company. For instance, a bottle of black soft drink is not worth much without the mark Coca Cola®. Thus, it is very crucial to identify and assess the value of IP to understand the true potential of the company.
There are two methods for the valuation of the IP. The Income method, as the name suggests, depends on the potential cash flow that will be generated whereas the market method compares the IP on the basis of real third-party agreements and calculates a market price.
Valuation is a complicated procedure that necessitates the use of qualified professionals to assess the assets. The extent to which a business exploits and values its IP Assets is one of the variables influencing its success or failure. Therefore, this is a very important step. Any IP strategy must always balance any prospective short gain against any probable long-term suffering in terms of the business’s strategic objectives.
How to protect IP
Registration of IPRs
Registration is the most important step towards the protection of IP. It protects the owner from any possible future infringements of your IPRs and it also gives IP the legal sanctity it requires for better commercialisation.
There are different laws and procedures through which patents, trademarks, industrial designs, and copyrights are registered. Meanwhile, registration of all the IPs is compulsory for protection, copyright is an exception. Though for better protection, it is suggested to get it registered.
1. Patents
Patents are governed by the Patents Act, 1970. It was amended in the year 2010. This Act provides three criteria for an invention which must be actualised for its registration as a patent. They are: –
The product or the process must be new and original.
It must bring something new to the table. A mere change to a formerly known technique or process cannot be patented.
It must be capable of industrial application.
Once an IP is patented, it gives the owner the monopoly over it and no one can use it without the owner’s permission. If it is not patented then it could lead to a huge losses, especially to big companies. Recently, Samsung had to pay Apple an extravagant amount of $120 million over a patent dispute.Thus, registration of a patent is a crucial step. The inventor can file the application for a patent himself or he can appoint a legal representative. The registration procedure is given below:
File a patent application on Form-1 and have it assigned a number.
For a speedy procedure, a form can be filled out requesting publication. It results in publication of the patent specification within a time period of one month. Whereas without the form, it usually takes upto 18 months.
A request for examination has to be filed after which the First Examination Report (FER) is issued by the Patent Office. It should be filed within 48 months from the date of filing. Extra fees can be paid to expedite the process.
If any objections are raised then it must be dealt with within 12 months after the issuance of FER.
The patent is granted if the objections are satisfied.
Post-Grant opposition can be filed within one year.
A patent has a validity of 20 years but it has to be renewed every year after the third year as per Schedule I.
2. Trademark
Trademarks are governed by the Trademark Act, 1999. It was further amended in the year 2010. Trademark is one of the most treasured IPs for a business because of the goodwill and reputation attached to it. Names, logos, slogans, word signature, labels, device (product shape), numerals, or even a combination of colours can be trademarked in India. India follows the federal registration system. The registration procedure is mentioned below:
Do a trademark search for a totally unique trademark, national trademark databases that are available online can help in such research.
After the research, the next step is to file an application for the registration of the trademark. A fee has to be paid along with the form.
The TM mark can be used after receiving the allotment number.
The trademark is then sent for Vienna Codification.
After the registration of the mark, if there are any clarifications, then the Trademarks Registry delivers the “Official Examination Report”.
Once the application is approved, the trademark gets published in the ‘Trademarks Journal.’
General public can file an application for opposition within the time period of 4 months.
If no one opposes the mark then the registration is granted after the lapse of 4 months. On the other hand, if there is any opposition then it has to be resolved before the registration can be granted.
The Trade Marks Registry issues an official letter informing the application’s acceptance as well as the trademark certificate when all necessary consideration has been given.
15-18 months are required for this process.
The validity of the trademark is only 10 years.
Renewal can be done by paying the prescribed fees.But it can be renewed for only another 10 years.
For a set period of time, a copyright gives the creator the monopoly to regulate the reproduction or modification of his or her work. Copyrights cover literary works, cinematographic films, recordings, books, software, etc. The registration process is mentioned below:
The first step is to file an application for registration along with the copy of the work that is to be copyrighted.
It can also be filed online on the official website (copyright.gov.in).
The next step is examination of the submitted work.
Objections can also be raised which requires a reply within 30 days.
After the objection (if any) is resolved, the Copyright Office issues the certificate of copyright.
4. Industrial designs
The Designs Act, 2000 governs all the matters relating to industrial designs in India. The followings steps should be followed to register an industrial design:
The first step is to submit documents like registration form and four copies defining the design (for 2-D representation: 33cm x 25cm) exhibiting all components of the design from various perspectives (like front, back side, top, bottom, perspective, etc.)
The next step is to file the application at the Patent Office. (design wing)
The application is assigned a number.
Examination of the application is done and if there are any defects then they are conveyed.
Correction of the defects must take place before the expiration of a time period of 6 months.
A personal hearing may happen if the Controller is not satisfied. The applicant has the right to move to the High Court before 3 months.
Acceptance of the application leads to publication in the patent journal. It is notified to the applicant.
The validity of the industrial design is for 10 years.
It can be further extended by a period of 5 years by applying for renewal.
International protection
IPRs are territorial and not global in nature and thus, they are recognised only in the domestic country. For international protection, additional registration is required. WIPO recognises the following international registration systems:
Madrid System (trademarks),
Hague System (industrial designs),
Patent Cooperation Treaty (patents).
Unregistrable IPs
There is a category of IP which cannot be registered to protect its secrecy. Trade secrets and know-how are not generally registered to keep it a secret. Though without registration, they face a greater chance of infringement but as the name suggests, they are known for their secrecy and if they are registered then the whole world will know. The classic example is the recipe of Coca-cola. If the company patents it then it will only be valid for 20 years and after that it will be available for the world to use.
Because trade secrets, by definition, operate in secrecy, and we know far less about their significance in market competition than we do about patents, copyrights, and trademarks, they are regarded as the intellectual property’s stepchild.
It is important for the company to protect the trade secrets as it is one of the most important IPs. They can be protected under unfair competition laws, torts, and on the basis of the principle of equity. But an approach is to keep it a secret and keep the following points in mind:
Ascertain that only a small number of employees have access to specific secret information.
Secure the confidential information in the IT system’s password-protected drivers and update them as needed.
Grant only a certain set of employees access to a part of confidential information while granting another set of employees access to another part of confidential information.
Adopt a well-thought-out code of conduct that explicitly states that all information gathered at your organisation, whether directly or indirectly, must be treated as completely confidential information.
Make sure that any behavior that violates the confidentiality principles and guidelines is subject to consequences.
Maximisation of gain
After performing the initial steps towards the commercialisation process the next step is to adopt a strategy to make profits. Like tangible assets, IPRs can also be sold and licensed out. Moreover, IPs can be licensed or assigned to more than one person or party as they are inexhaustible in nature.
There are various ways through which IP can be monetized. The first and foremost step is a well-drafted contract. The contract is of paramount importance in the commercialisation process. The following types of contractual agreements are preferred for commercialising IP assets:
1. Non-disclosure agreements
To engage in business with prospective partners, a company needs to reveal sensitive information about protected or to-be-protected IPRs, preliminary R&D results, manufacturing processes, trade secrets, know-how, and so on. To protect these secrets and confidential information a non-disclosure agreement plays a crucial role.
Non-disclosure agreements (NDAs) are designed to keep your potential business partners from releasing any confidential information you acquire in confidence that is related to your firm. NDAs can be bilateral or unilateral, depending on whether both parties agree to keep particular information completely confidential, or if only one party agrees. An NDA should contain the following clauses:
Definition of the term ‘Confidential Information.’
Description of the information that is not protected by the NDA.
Specification of the legislation and jurisdiction chosen.
A list of particular purposes for which the receiving party can use the information.
Potentially a list of entities with whom sensitive information can be shared provided specific requirements are met.
Damages clause in the event that confidential information is unlawfully disclosed.
Duration clause specifying the period of the NDA.
2. Assignment or sale
When the whole control of the IP right(s) is conveyed to another individual, it is called an assignment. Selling a patent, trademark, or copyright to a third party so that they have absolute ownership over such IP is one illustration of an assignment. The assignor is the person who transfers possession, and the assignee is the person who receives possession.
Assignment agreements are fundamental in the domain of intellectual property because they empower IPR owners to transfer their IP for monetary gain, ensuring that the IP can be exploited for profit. There are various benefits of this kind of agreement. They are mentioned below:
Instant realisation of money when selling the IPRs for lump sum rather than having to wait up to 20 years.
Elimination of the possibility of the IP being declared worthless in court or being obsolete by introduction of new technology.
The assignor obtains an instantaneous remuneration after an outright sale of IP rights, with no future risk, commitment, or duty to maintain the IP.
The assignor will be relieved of the responsibility of ensuring that adequate royalty obligations are fulfilled.
The assignor is not required to keep track of the assignee’s exploitation activities.
Important sections
Patent- Form 16has to be filed for registration of patent assignment agreement as per Patents Act. Without registration, the parties cannot use it as evidence in the court.
Copyrights- Section 19 of the Copyright Act stipulates that copyright assignments must be made in writing and signed by both the assignees and the assigner.Even copyright in a future work can be assigned under Section 18, but the assignment is only effective on the date the work is created.
Trademark- Assignment of trademark is cover under Section 37 to 45 of the Act.
Geographical indicators- These are public proprietary rights and thus prohibited by the Act to be assigned.
3. Licensing agreements
Licensing agreements are the most used contractual agreements in the commercialisation process. The rationale behind is that tangible assets can only be rented out/licensed once but in the case of IPs, they can be licensed to a lot of parties at once in different geographical locations.
IP licensing is the procedure through which the owner of intellectual property (IP) grants authorisation to third parties to use his or her IP asset(s) for a certain period of time, for a specific purpose, in a specific region, and under negotiated terms.
Here are a few reasons why Licensing is one of the best ways to earn money through IPs:
Money can be earned in the form of royalties and licence fees.
Business expansion in other countries and new markets.
Capitalisation of enriching knowledge can be obtained from exploitation of IPRs.
Control how the IPRs are being used.
Learn the necessary adaptations required.
There are three types of licensing agreements. They are:
Exclusive licensing agreement: The Licensor (i.e., the creator of an IP asset) grants the licensee unrestricted permission to utilise the licensor’s IPRs in a specific territory (i.e., the whole country, a specific area, etc.). On the same territory, the licensor will not allow anybody else to use its IPRs. In reality, under this paradigm, the licensor himself will not be permitted to utilise them in that region.
Non-exclusive licensing agreements: The licensor reserves the authority to appoint additional licensees to exploit its IPRs in the very same territory as the licensor. To put it another way, the licensor is free to licence its IPRs to others and, of course, to use them himself.
Sole licensing agreement: The licensor agrees not to appoint any additional licensees in this model, but it reserves the ability to utilise the IPRs in concern on its own.
Important clauses
The IPRs licensed should be identified and defined precisely.
Comprehensive overview of the licensee’s rights under the licence (i.e., dos and don’ts).
Describe the kind of licensing agreement. (exclusive, non-exclusive or sole)
Monetary reward i.e., compensation.
Time duration.
Sublicensing policy.
Exact description of the licenced IPRs’ geographical area of exploitation.
Confidentiality of the IPRs.
Ownership and rights to possible enhancements of licenced IPRs.
Dispute resolution mechanism in case of infringement.
Difference between assignment and exclusive licensing agreement
The difference in result between an exclusive IP licence and an IP assignment can be subtle. In the end, the differentiation will be determined by the substance of the paperwork pertaining to the supposed IP transfer. If the ability to sue infringers has been retained, as well as the authority to use the IP at a later stage or under particular conditions, these factors will impact the assessment.
4. Cross-licensing agreements
Cross-licensing is a licence arrangement between two or more parties in which each party commits to transfer the authority to utilise their intellectual property to the other. With respect to intellectual property, this sort of licensing arrangement might confer mutual rights to all parties concerned.
The following are the advantages of cross-licensing:
Collaboration of technology between diverse businesses could lead to a substantially improved output.
Cross-licensing could also contribute to improved product compatibility.
It could aid in gaining exposure to fresh markets and lowering product development expenses.
Taking advantage of the other party’s promotional or production expertise to reduce the time it takes to promote the product.
5. Technology transfer agreements
Technology transfer, as the name implies, is the process through which one party transmits its technology to another for economic interests or the development of new products. A contract is signed between the parties to transfer technology. In a way, a technology transfer agreement is a form of IP licence in which the contract’s goal is a part of technology (whether incorporated in a product, protected by a patent (registered or pending), or in the development process).
Major points in a technology transfer agreement are:
The application and utilisation of the technology that is to be conveyed.
The subject of future advancements made by the individual or company who purchases the technology must be properly addressed.
Technology transfer agreements are considerably shorter in tenure than other kinds of licences.
Typically, depending solely on the data provided in the patent, technologies are difficult to operationalise. Disclosure of trade secrets and know-how may be required for effective use, which should be included in the same technology transfer agreement.
Example
Monsanto Inc. established the BG I and II genetically engineered technology, which produced a toxic protein fusion in the plant cell and reflected in the cotton ball when injected into hybrid cotton variety seeds. As a result, the pink bollworm was kept from harming the crop. This method (BG II) was patented in Indiaand licensed to approximately fifty Indian hybrid cotton seed firms via “technology sub-licensing agreements.”
It’s worth highlighting that these agreements weren’t labeled “Patent Licensing Agreements” because patent licensing was only a minor portion of the overall tech-transfer agreements, which also covered germplasm exchange, know-how with regard to cross-hybridisation, and so on. In such complicated tech-transfer agreements, payment of technology transfer charges can be distinguished from payment of patent royalties.
Nanoclean Nasofilters, pollutant filtering devices formed by a group of IIT-Delhi degree holders, are one excellent illustration of a productive technology transfer in India. The creator of the technology and his fellow colleagues own the start-up Nanoclean, which holds lifelong-exclusive privileges to commercialisation of the technology.
6. Joint ventures agreements
Even the wealthiest corporations nowadays do not do everything on their own. In many circumstances, collaborating with other businesses is not only essential, but it is also a great method to save money and effort.
In legal terminology, a joint venture is formed when two or more partners get together to start a new project with certain common goals (JV). Joint ventures are commonly founded by forming a new and distinct legal entity. They are sometimes simply constituted by a contract, in which participants agree to collaborate and assign roles and obligations. Joint venture agreements have the following benefits:
Obtaining funds or gaining exposure to specialised technology.
Improving the ability to find raw materials or use the most efficient distribution methods in the niche venture.
Using indigenous knowledge and connections to promote desirability.
The IP considerations that must be addressed when getting into a JV agreement can be divided into four categories, each of which corresponds to one of the four stages of the JV agreement discussion and execution:
A. Pre-agreement stage
NDA- If any confidential information is being communicated to potential partners, then non-disclosure agreement is of utmost importance.
Due diligence- Conducting thorough due diligence on business partners is really important as it will give a better idea of what they can bring to the table, particularly their IP capability.
Legal advice- Legal counsel is required with respect to anti-trust laws.
B. Commencement stage
Assignment of IP- Choose whether to assign or licence IPRs to the Joint Venture, as well as how to do so.
Negotiation- Negotiate the conditions of the assignment/license of underlying IPRs for the joint venture’s profit.
Ownership clause- Accord on all pertinent ownership concerns relevant to new IPRs that the joint venture may produce, as well as potential changes to existing IPRs.
Operational clause- All essential implementation and operationalisation concerns should be agreed upon (e.g., who can use IPRs, how they can be used, market utilisation, validity, restrictions, revenue sharing, and so on).
C. Implementation stage
Monitoring procedure- A protocol should be established to guarantee that all accepted IP clauses, including ownership and implementation issues, are followed.
D. Conclusion stage
Results- Participants to a JV evaluate whether the partnership generated the expected results, including in regards with IPR production and use, during this period.
Termination- If the parties decide to discontinue their partnership, they can negotiate and settle on how to share the tangible and intangible assets developed by the JV.
Renewal- However, the parties may choose to prolong their cooperation by extending the existing JV’s terms or entering into new ones. IP considerations will also play a significant part in this case.
7. Franchising agreements
Engaging in a franchising agreement is amongst the most fascinating ways to commercialise IP assets. Franchising is a form of licensing agreement that enables businesses to expand and distribute products without having to “reinvent the wheel.” Such is because it allows for the duplication of a specific business model that has previously proven to be extremely effective. These are the essential characteristics of a franchise:
Licenses-The franchisor grants one or several franchisees the authority to exploit the franchisor’s IPRs.
Royalties- In exchange, the franchisee will give royalties to the franchisor (along with a substantial amount payment at the start of the deal).
Assistance- The franchisor assists franchisees (for instance, by providing necessary know-how and educating them in marketing strategies, political posturing, and accounting, among other things);
Control- The franchisor has a considerable amount of discretion over the franchisee’s activities (and especially over how they exploit the franchisor’s trademark).
In another terms, a franchisor who has created a notably profitable business structure decides to extend its business by allowing multiple franchisees, in various regions, the right to copy its business structure for a set length of time in lieu of a monetary fee. The franchisor grants the franchisees the permission to utilise its IPRs, which encompass trademarks, copyright, trade secrets and know-how, and in most circumstances, industrial designs and patents, as elements of the contractual deal. The franchisees shall work under the supervision of the franchisor and in accordance with the franchisor’s guidelines. Franchisees will also receive certification and support from the franchisor.
Benefits to the franchisee
Minimised use of resources by not having to start a business from the ground up.
Increase in profit by utilisation of franchisor’s IPRs including its goodwill, trademark and logo.
Benefits to the franchisor
A low-cost diversification of its firm into new geographical territories while maintaining substantial influence over how the franchisees conduct business.
A tremendous benefit in the form of the typically enormous income earned by the franchising agreement.
There can be some risks to franchising agreements too. It may include inappropriate use of trade secrets, vicarious liability, the risk to the goodwill of the company, etc.
8. Merger and acquisition
Merger and acquisition (M&A) is a process in which either the two corporations merge into one or one acquires the other. It is a much wider concept than that of the franchise. It leads to the transfer of all the properties to the larger corporation including IP.
9. Cooperation/collaboration agreements
A contract in which two or more parties commit to collaborate on a specific project is known as a cooperation/collaboration agreement. For instance, a corporation may develop unique technology that necessitates more R&D from a different industry in order to complete the product. The corporation might integrate efforts and resources with another party to bring the innovation to market faster and with minimal R&D expense by working with another party. Collaboration agreements differ from joint venture agreements as the latter creates a new legal entity while the former is just a contract between the parties. The collaboration agreement may include:
Exchange of know-how and trade secrets;
Sharing of skills and expertise;
Undertaking R&D;
Ownership and command over the IP developed as an outcome of the agreement;
Any IP essential to the venture that either party owns beyond the partnership.
9. Research and development agreement
R&D agreements are a form of co-operation/collaboration agreement in which two or more businesses join forces to conduct collaborative research and development operations in order to generate a product, such as IP, or a technology that includes IP. The Indian Contract Act, 1872governs these agreements. In most cases, an R&D agreement will include the following items as part of its framework:
Objective;
Scope;
Recognition and licencing of each party’s own intellectual property generated beyond the collaboration (before or during);
Possession of intellectual property (IP) and/or know-how developed throughout R&D;
Ownership and usage rights in collaboratively generated products, technologies, and IP;
Costs, expenses, risks, and earnings that will be shared between the parties;
Personnel, facilities, assets, and other technology that will be used.
Example
A robust R&D agreement entails two companies combining their expertise. Considering the latest collaboration between Mylan Labs and Biocon Ltd in India, which resulted in the sale of a biosimilar oncology medicine trastuzumab under the brand name “Ogivri” in the United States in December 2019. Biocon Ltd. and Mylan partnered through R&D agreements to combine their abilities in biopharmaceutical research and regulatory clearances (i.e., pharmaceutical development).
National Intellectual Property Rights (IPR) Policy 2016
India’s National Intellectual Property Rights (IPR) Policy was launched by Finance Minister Arun Jaitley in 2016. The policy’s purpose is to foster IPRs as a tradable monetary asset, while also encouraging innovation and entrepreneurship as well as safeguarding the public interest.
The policy recommends a study to look into the viability of an IPR exchange to enhance commercialisation and value for IPs. By bringing together investors and IP owners/users, such a unique IP market might encourage development in IP-driven industries.If this IPR policy is implemented properly and transformed into a viable and practical solution, then IP commercialization in India will achieve its true potential.
Case studies
1. Tropical Botanical Garden and Research Institute (TBGRI)
Jawaharlal Nehru Tropical Botanical Garden and Research Institute (JNTBGRI) formulated ‘Jeevani’ which comes from the arogyapaacha plant. They signed a licensing agreement with Arya Vaidya Pharmacy Ltd. and earned US$50,000 in the year 1955. JNTBGRI did not have international IP protection and thus, suffered a few challenges and later on realised that IP protection is one of the most crucial strategies for success.
Biocon was founded on the principles of innovation and strong intellectual property protection. On the one hand, the company’s inventions help it thrive, while on the other hand, they have several good societal ramifications, all of which are greatly facilitated by IP. Licensing is a significant and crucial aspect of Biocon’s partnerships and collaborations, as it allows the company to licence in or licence out technology and intellectual property for research and development projects.
4. Dr. Milind V. Rane / Unidyne Energy Environment Systems Pvt. Ltd.
Dr. Rane understood a lot about the inherent benefits of using the patent system effectively during the process of commercialisation of the MHRU. Although collaborative efforts between inventors and businesses in intellectual property development have many perks, benefit sharing can be a source of contention if controversial topics are not resolved before work begins. Dr. Rane and Unidyne’s work demonstrates that these challenges can be overcome with adequate contract responsibilities and obligations.
Suggestions
Companies underutilize their IPs due to lack of information about how the IPR system works. Awareness about IPR is very important as it is a fairly new concept.
The concept of patent litigation insurance should be adopted to avoid huge expenditure in litigation.
Government should start programmes focused at lowering the expense of acquiring and protecting the IPRs.
Subsiding the cost of IPRs for SMEs and start-ups.
Integration of R&D funding with IP protection.
Integration of all scattered framework of IPR laws in one Act for better implementation and understanding.
Conclusion
The passage of time has made us acknowledge that intangible assets have gradually become a crucial segment of the economy. “IPR is already a part of the strategic options in the knowledge industry.” Evaluating the potential of IP and capitalisation on its true value is the most pivotal aspect for a long-term economic foothold.
Whilst IP protection is available all around the world in various forms such as registration, filings, licensing, and barring from abuse, most owners conveniently overlook the worth of their assets and neglect to protect them. Being caught off guard by any market entity might cause havoc, both monetarily and in terms of reputation, which would be extremely destructive to the institution’s growth. Registration and protection of IPRs is a costly and time-consuming process. However, these steps lay the foundation for commercialisation for IPRs and thus, are crucial in nature.
With the age of globalisation and the advancement in digital technology, the world has truly shrunk in size, necessitating an increase in the demand for protection. It is just as crucial to building an IP asset as it is to protect its ownership and management including its commercialisation. It’s high time for businesses to realize the benefits of these rights and put them to good use.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
This article has been written by Sneha Mahawar. from Ramaiah Institute of Legal Studies. The article discusses the concept of Nudum Pactum under the Indian Contract Act, 1872.
Table of Contents
Introduction
The Indian Contract Act, 1872, establishes the law governing contracts in India and is the most important piece of legislation governing Indian contract law. The Act is founded on English Common Law principles. It is relevant to all Indian states. It establishes the conditions under which commitments made by contracting parties are legally enforceable. The Indian Contract Act defines a contract as an agreement enforceable by law under Section 2(h). The Indian Contract Act was enacted by the Imperial Legislative Council on 25th April 1872 that came into force on 1st September 1872.
In India, an agreement becomes a valid contract when it is enforceable in a court of law. The enforceability of an agreement depends on the six essentials of a valid contract namely, offer and acceptance, intention to create a legal obligation, free consent given by parties, the competence of parties, consideration, and lawful objective. Thus, if any one of the single essentials of a valid contract is not satisfied the contract becomes invalid and unenforceable in a court of law.
Meaning
Nudum Pactum
The term ‘Nudum Pactum’ has been derived from Latin terminology which means a naked agreement.
The adage denotes an agreement made without any consideration. As per law, a contract is only enforceable when it is inclusive of the basic requirement of consideration. Consideration is defined as a promise to pay money, valuable things, or any other perk as discussed by the parties engaged in the contract or agreement. Where there is no consideration that is a nudum pactum, and hence such a contract is neither enforceable nor valid.
A nudum pactum might be made verbally or in writing. Since these agreements are unenforceable, they may not be pursued in court. This indicates that these agreements do not come under the categories of agreements that can lead to legal action. Such agreement may constitute a modification or exemption to an existing duty.
The contract, on the other hand, is regarded as legitimate if it is sealed. Furthermore, some contracts, such as bills of exchange, sealed documents, and promissory notes, bear consideration as a result of their forms. Even if there is no formal consideration inside them, they are regarded as genuine.
No nudum pactum is enforced under English law. Every day, an enormous number of agreements are formed, and it would be absurd to treat each one as a legally enforceable contract.
Anson states that when one understands the history of assumption it would be clear that even in ancient days there was speculation that an agreement which is without any consideration is legally binding and can parties be bound to perform such agreements.
In 1756 Lord Mansfield stated that “All such agreements which are without consideration are merely a moral obligation.” This means that if an agreement is without consideration then the performance of such obligation is mere moral duty and responsibility of the party performing it. But if the party does not perform such obligations they cannot be legally bound to perform such obligations.
Under English law contracts can be formed in two ways namely, contract with consideration and contract by a seal. Contract with consideration is an agreement that satisfies all the six essentials of a valid contract. Whereas, contract by the seal is an agreement formed under a seal but without consideration.
Section 25 of Indian Contract Act, 1872
Section 25 of the Indian Contract Act, 1872 states that any agreement which is formed without any consideration is considered void. It also states that an agreement without consideration cannot be termed as a valid agreement.
Exceptions
Natural love and affection
If an agreement is created without consideration on account of natural love and affection between persons standing in close connection to one other. Additionally, if it is stated in writing and recorded under the legislation for the time being in effect for the registration of documents then such an agreement can be considered valid.
In Rajlukhy Dabee v. Bhootnath Mookerjee, 1900, the husband was sued for failing to fulfil his end of a commitment by failing to provide his wife with a separate apartment and support, but the contract was found to be invalid. The Court held, “the parameters of the agreement between the husband and wife revealed that there was no love and affection between them and so, it was without consideration”. As a result, it was void ab initio.
Past service
A promise to reward a person who has already freely done something voluntarily for the promisor, or something that the promisor was legally compelled to perform, is a lawful agreement without consideration.
In Sindha Shri Ganpat Singhji v. Abraham, 1896, A rendered services to B during his minority at B’s request; which were continued after B ceased to be a minor. After attaining a minority, B promised to pay an annuity to A for the services rendered in the past. It was held that this was a good contract and A can recover the money.
Time barred debt
A time-barred debt without consideration can be enforced on satisfying three conditions:
There should be a written promise which should be signed by the individual or his chosen representative.
There must be a promise to pay the debt in whole or in part.
The creditor must have enforced the debt for the duration of the limitation period.
Even if the debt has not been enforced in the duration of the limitation period, it is still recoverable if:
It is a recoverable debt and legal promise.
It is a written promise which is signed by the individual or his chosen representative.
It contains a clear promise.
No consideration is necessary to create an agency
Section 185 of the Indian Contract Act, 1872 states that no consideration is required to create an agency.
Gift
A gift means transferring any movable or immovable property by an individual to another individual without any consideration from another individual. Such agreements are valid and enforceable.
Bailment
Bailment is defined in Section 148 of the Indian Contract Act, 1872 as the conveyance of commodities from one person to another for a certain purpose. This delivery is based on a contract that states that once the purpose has been fulfilled, the products will be returned or disposed of according to the instructions of the person who delivered them. A bailment contract does not need any consideration. Thus, a bailment is a lawful agreement without consideration.
Charity
The contract is lawful if a person assumes a responsibility based on the commitment of another to give to charity. The “no consideration, no contract” rule does not apply in this circumstance.
Illustrations
The house is owned by Aman. Without any commitment to pay any fee, Aman engages Bob, a broker, to sell the house without any consideration to pay. Aman, on the other hand, sold the house on his own. In such a situation, Bob is not entitled to receive compensation since the agreement made to him was made without consideration.
X promises to transfer a property to his wife Y if she gives him divorce. After their divorce X denies transferring the property. Y cannot claim ownership of property as the agreement was nudum pactum.
Ram assures Sita that he would give her Rs. 50,000 and a ring for no consideration in return from her end. This is a mere promise, thus it cannot be enforced and amounts to nudum pactum.
Rahul who is Rohit’s father, promises to give Rohit Rs. 15,000 and has it written down and got it registered. This contract is based on natural love and affection, and as such, it is lawful under Section 25 of the Contract Act.
Soumya owes Bimal Rs. 41,000, but the Limitation Act prevents him from collecting. Soumya promises to pay Bimal Rs. 41,000 on account of the debt in writing. Because it fits within one of the exceptions listed in Section 25 of the contract statute, instead of being a mere promise (nudam pactum), it is legitimate and enforceable as a contract.
Case laws
Rann v. Hughes, 1778
Mary Hughes died, and Rann was the executor of her bequest. Isabella Hughes was the administratrix of John Hughes’s estate after he died intestate (not making a will before death). Mary and John had various disagreements while they were living, which were resolved through arbitration, with John agreeing to pay Mary £983 as a settlement. At the time of John’s death, this debt remained unpaid. Following Mary’s death, her executors demanded payment of the obligation on John’s inheritance, which they estimated to be worth at least £3000. Isabella pledged to pay the money, but she couldn’t since there was insufficient money in the estate.
The executors then sued Isabella, alleging that her pledge was made in her own right, not as administratrix, and thus not contingent on the estate having sufficient cash. The plaintiff was victorious at trial, and the verdict was maintained by the King’s Bench on appeal. This verdict was reversed in favour of the defendant on appeal to the Court of Exchequer. A writ of error was filed in response to this reversal. The defendant claimed that the commitment was made in her capacity as administratrix, but that even if it was a promise to be personally accountable, it was unenforceable due to the lack of a written contract or the lack of consideration.
This case was delivered by a single judge bench of Justice Skymer EB. The court stated that the submissions of the defendants held that agreements without consideration have no legal validity, and a promise or agreement not under seal is not actionable unless there be a consideration for the same, even if it is in writing.
Union of India v. F. Gian Chand Kasturi Lal, 1953
The plaintiffs in these instances filed three lawsuits seeking a return of salt duty that they had previously paid, claiming that they were salt stockists who had paid duty and were entitled to a refund under the notices. The Central Government challenged these lawsuits, claiming that they were not obligated to refund the duty and that any liability to pay, if any, was the responsibility of the West Punjab government.
Although the written assertions were not as precisely drafted as one would expect from the Union’s legal counsel, the matter of the Central Government’s duty to reimburse could not be dismissed. It was further claimed that the plaintiffs lacked standing.
In this case, the plaintiffs have not proven that they do not have any contract or legislation to back up their claim, and it is therefore unsustainable.
In this case, it was held by the High Court of Punjab-Haryana that “A consideration of some type or another is thus required to make a contract.” A ‘nudum pactum,’ or agreement on one side to do or pay anything without remuneration on the other, will not justify action in the eyes of the law, and a man cannot be forced to execute it.
In our system, the nakedness of a promise is defined by the lack of thought, not by the absence of formal criteria such as writing or registration. As a result, a bare promise, in our opinion, has no connection to the digest’s nudum pactum.
New Iraq Ahd Company (NIAC) case, 2014
In this case, NIAC signed a memorandum of agreement with the government to build a barrier for the 25th Infantry division, but the contract stipulated that:
This agreement will not become effective until the money is authorised and the contractor is told by the project officer to commence work.
This contract does not have funds accessible at this time.
The Government’s duty under this contract is conditional on the availability of allocated money from which to make contract payments.
The Government has no legal duty for any payment until funds are made available to the contracting officer for this contract and the Contractor receives the notification of such availability, which the officer must confirm in writing.
NIAC spent $175,440 on fence materials, but financing was never made available, and the contracting officer never gave notification that funds were available. NIAC requested reimbursement for the $175,440 it spent in anticipation of the fence’s construction, but the Board found that the contract was conditional on the availability of money, which never materialised, and therefore “the agreement never became binding.” NIAC was unable to collect anything since there was no contract to enforce and no consideration – it was a “nudum pactum” situation and thus, NIAC could not recover any amount.
Sympathy Katengeza Chisale v. Willie Mphoka Phiri, 2011
In this case, the plaintiff was legally entitled to require the defendant to deliver the three trucks to him under the defendant’s fiduciary obligations to the plaintiff. The plaintiff had instructed the defendant to deliver the trucks to him in Malawi. However, the plaintiff delivered the trucks to Mr. Lidamlendo without any such instruction given by the plaintiff. As a result, this delivery was a nudum pactum. As there was no agreement, the agreement isn’t enforceable.
Conclusion
Hence, a nudum pactum means a naked agreement. And no agreement is enforceable without consideration in a court of law until and unless it is formed out of love and affection, past services, time-barred debt, agency, or gift. Exceptions to the nudum pactum agreements are laid down in Section 25 of the Indian Contract Act, 1872.
The phrase ‘nudum pactum’ refers to an agreement made without any consideration. A contract is only legally binding if it includes the basic criterion of consideration. A commitment to pay money, valuable objects, or any other incentive as negotiated by the parties involved in the contract or agreement is referred to as consideration. A nudum pactum exists when there is no consideration, and hence such a contract is neither enforceable nor legitimate.
This article is written by Ishan Arun Mudbidri from Marathwada Mitra Mandal’s Shankarrao Chavan Law College, Pune. This article discusses about Section 302 of the Indian Penal Code which deals with punishment for murder.
Killing someone is one of the worst things that a person can do. To ensure that such an act is not spared and is met with serious consequences, there are stringent legal provisions in place. One such provision is Section 302 of the Indian Penal Code, 1860 which talks about the punishment for murder.
Punishment for murder
Section 300 of the Indian Penal Code 1860 talks about the offence of murder. However, the offender is punished under Section 302 of the Code. This Section states that a person committing a murder shall be punished with a death sentence or life imprisonment, and also be liable to pay a fine. This Section extends to everyone irrespective of their sex. It even applies to a public servant who due to selfish intentions kills someone. The IPC does not exempt anyone from the offence of murder. Section 302 clearly states, “Whoever commits murder.” Further, the offence of murder is non-bailable and non-compoundable.
This Section talks about two kinds of punishment: death sentence and life imprisonment. If one of these punishments is imposed, then the offender shall also be liable to pay a fine. The death sentence, imprisonment, and fine are also mentioned in Section 53 of the IPC which talks about the kinds of punishment.
Death sentence
Section 302 of the IPC talks about punishing the person who commits murder with the death penalty. The object of punishing an offender is to ensure that he/she doesn’t repeat the offence and transforms into a good human being. However, there are certain heinous crimes for which death is the only alternative. This is known as capital punishment. Capital punishment is one of the oldest forms of punishment. It is the execution of an offender under due process of the law. Section 367(5) of the 1898 Code of Criminal Procedure made it necessary for the courts to pass a death sentence in cases of murder. After the amendment in 1955, this Section was deleted and the court was not obliged to give any reasons for imposing the death penalty.
Death sentence under the IPC is given according to the principle of ‘rarest of rare cases.’ This principle was first introduced in the case of Bachan Singh v. State of Punjab (1980), in which the accused was guilty of murdering three people. Section 354(3) of the Code of Criminal Procedure 1973 states that if an offence is to be punished with death, then the court must give special reasons for the same. Hence the court by a majority observed that the death penalty is an exception to the punishments mentioned under the Indian Penal Code, and should be given only in rarest of rare cases. However, which offence shall come under this principle has not yet been clarified. This is the reason why capital punishment has been a highly contested debate, with critics arguing that the states and the judiciary should not have the right to execute someone. The main concern of the courts has been in figuring out whether a death sentence should be imposed based on the crime or actions of the criminal. It is up to the judge to decide a case of a death sentence.
Life imprisonment
Imprisonment is like an instant reaction to a crime committed. It is one of the simplest forms of punishment. Section 53 of the IPC mentions three kinds of imprisonment including simple imprisonment, life imprisonment, and rigorous imprisonment. Life imprisonment means that the person stays in prison for the rest of his/her life or until pardoned. Life imprisonment is imposed on crimes of great magnitude like murder. Life imprisonment is not as gruesome as a death sentence but still has a drastic impact on the accused.
Fine
Section 302 of the IPC punishes the offence of murder with death or life imprisonment along with a fine. Hence, a fine is used as an additional form of punishment. Fine is also used as the main form of punishment for small crimes like embezzlement, fraud, gambling, etc. The amount to be paid as a fine varies according to the magnitude of the offence committed. So it is left with the courts to decide the quantum of the fine.
Essential ingredients of murder
Section 302 of the IPC doesn’t clarify when these three above-mentioned punishments shall be imposed. However, Section 300 of the IPC mentions three instances if fulfilled, shall be termed as murder. They are:
The act must be done with the intention to kill someone and cause death. An intentional omission is also included here. For example, A stabs B with a knife, with an intention to kill him. B dies, A has committed murder.
The act is done with the intention to cause bodily injury and such bodily injury is likely to result in death.
If the act is done having proper knowledge that it will cause death, such an act shall be termed as murder.
When is Section 302 IPC not applicable?
Punishment under Section 302 of the IPC shall not apply if any of the conditions mentioned above are not fulfilled. This means that if the accused has not intentionally killed someone then murder cannot be proved. Apart from this, Section 300 of the IPC mentions certain exceptions for the offence of murder, which are as follows:
If a person is suddenly provoked by a third party and loses his self-control, and as a result of which causes the death of another person or the person who provoked him, it won’t amount to murder.
When a person under the right of private defence causes the death of the person against whom he has exercised this right without any intention, Section 302 will not be applicable.
If a public servant, while discharging his duty and having lawful intention, causes the death of a person this Section will not be applicable.
All these three exceptions mentioned above shall come under Section 304 and will be termed as culpable homicide not amounting to murder.
Constitutional validity of Section 302 IPC
The Jagmohan Singh case
The legality of the death sentence punishment under Section 302 of the IPC was challenged for the first time in the case of Jagmohan Singh v. State of U.P (1972). Family quarrels between cousins led to the death of one Chottey Singh. The appellant (Jagmohan Singh) was charged with the murder and sentenced to death under Section 302 of the IPC. The Allahabad High Court had confirmed the conviction. The appeal went to the Supreme Court and the main contention before the Court was that the punishment of death sentence under Section 302, is violative of certain fundamental rights including Article 14 and Article 21 of the Indian Constitution. It was argued that the judges’ discretion to grant the death penalty or life imprisonment, is violative of Article 14. Section 302 does not provide for a choice between the death penalty and life imprisonment, so it was violative of Article 21. The Court while rejecting these contentions raised by the appellant, laid down the following observations:
The general policy under the Indian Penal Code and the Code of Criminal Procedure is to impose maximum punishment for an offence, so to decide the degree of punishment the Judges are allowed wide discretion. The view taken by the Judges should be after considering all the circumstances of the crime.
Any decision taken by the subordinate Courts is corrected by the Higher Courts. So there won’t be any discrimination since the circumstances arising in every crime are different. So Section 302 is not violative of Article 14.
Further, while answering the question of whether the current provision is violative of Article 21, the Court observed that every case is proved depending on the facts and circumstances. The trial does not come to an end until all the facts are proved and both parties to the case have addressed their point of view. Hence there is a due process of the law and unless proven invalid, the provisions shall be valid. Hence, the provision of death penalty is not constitutionally invalid, so is not violative of Article 21. Hence the Court held that Section 302 is not constitutionally violative of any fundamental rights.
After this landmark judgment, the Code of Criminal Procedure 1898 was replaced by the Code of Criminal Procedure 1973. This Code regulates the punishment of death sentences under Section 354(3) and Section 235(2).
The Bachan Singh case
In the case of Bachan Singh v. State of Punjab (1980), apart from introducing the doctrine of rarest of rare cases, the constitutional validity of Section 302 IPC was also tested. It was observed that the Jagmohan Singh case has to be reconsidered. The focus has to be shifted from the criminal to the crime. It was observed that Section 354(3) of the Code of Criminal Procedure 1973, and Section 302 of the IPC, are not constitutionally invalid because if the sentencing discretion granted to the judges is taken away, then it would result in unfair delivery of justice. It was held that the death penalty as an alternative punishment is not unreasonable and does not have to pass the test of Article 19(1), Article 21, and Article 14 of the Indian Constitution. The Bachan Singh verdict still holds the truth and the death penalty is given in the rarest of rare cases.
Death penalty scenario post the Bachan Singh verdict
Apart from these two landmark verdicts, there are certain entries including entries 1 and 2 (Criminal law and criminal procedure) in the Concurrent List that show the existence of the punishment of the death penalty. Hence the makers of our Constitution were fully aware of the punishment of the death penalty. So it cannot be said that this provision violates the Indian Constitution. In the case ofKehar Singh v. Union of India (1988), the constitutional validity of imposing the death sentence was tested. The Court relied upon the Bacchan Singh case and observed that this provision was constitutionally valid. In the case of Shashi Nayar v. Union of India (1991), the Court observed that the punishment of death sentence is reasonable and not violative of Article 14 of the Indian Constitution.
After the Bachan Singh landmark verdict, the death penalty under Section 302 is strictly awarded according to the doctrine of rarest of rare cases. In the case of Macchi Singh v. State of Punjab (1983), the court went a little deeper to determine the rarest of the rare cases. It laid down certain guidelines relating to how the murder was committed, the motive for murder, the intensity of the crime, and the anti-social nature of the crime. In a recent judgment in 2018 (Channulal v State of Chattisgarh), the Court observed that as the punishment of the death penalty was upheld in the Bachan Singh case in 1980, there is no need to re-visit or re-examine it. It is necessary to use the death sentence as a form of punishment.
Another path-breaking verdict was given in the case of Mukesh and Anr. v State of N.C.T Delhi (2012) also known as the Nirbhaya Gang Rape Case. A young girl was brutally gang-raped in 2012. The Court awarded the death penalty to the four accused eight years after the incident took place. Hence this case became a classic example of the phrase “justice delayed is justice denied” and brought a change in the provision of the death penalty under Section 302 as the death penalty is now given in cases where the offence of rape leads to the death of the victim. Since 2000, eight people have been sentenced to death and hanged, the recent ones being the four convicts in the Nirbhaya case. Since the Nirbhaya verdict around 50% of the death penalties is related to sexual offences. Hence despite strong efforts from the United Nations and other international institutions in abolishing the punishment of the death penalty across the globe, the recent trend in India shows that the imposition of the death penalty is still very much valid. It is one of the 56 countries to continue the practice of the death sentence while 142 countries have abolished it.
Applicability of Section 302 with other offences under IPC
The offence of murder has stringent and gruesome provisions under the Indian criminal law. Despite being one of the most important sections of the IPC, Section 302 is also very technical. Punishment under Section 302 is not imposed just by establishing the fact that someone has killed a person. There are various other factors involved like intention, motive, bodily injuries leading to death, a murder weapon, etc. Another significant feature of this Section is its applicability with certain offences mentioned under the IPC, which are as follows:
Section 34 IPC read with Section 302 IPC
Section 34 of the IPC talks about common intention. When a criminal act is done by two or more persons with a common intention, then all those persons shall be liable for the act. Here the question arises as to what happens if the criminal act is murder? Who will be liable? So the accused person charged under Section 34, can be held liable under Section 302. Let’s say two out of the three accused have been charged under Section 302 read with Section 34. Now for the third person to be charged under this provision his individual liability has to be established.
In the case ofState of U.P v. Kapil Deo & Anr. (1991), the respondents (Kapil Deo & Anr.) were charged under Section 302 read with Section 34 of the IPC for causing the death of their domestic help. There were four accused of which one of them was convicted under Section 302 and the three others were convicted under Section 302 read with Section 34. The main accused who was convicted under Section 302 filed an appeal against his conviction in the High Court. The Court observed that the main accused was not the only person present during the crime scene and hence he is not solely responsible for the murder. Another appeal was filed against the conviction of the other three accused under Section 302 read with Section 34. To this, the Court opined that there was no evidence to show the three accused had committed the murder in furtherance of common intention. Hence, the High Court acquitted the main accused from the charge of section 302 and also acquitted the remaining three persons who were accused under Section 302 read with Section 34.
In the case of Krishna Govind Patil v. State of Maharashtra (1963), an important observation is that all the accused in a murder case except one can be acquitted under Section 302 read with Section 34 of the IPC was laid down by the Court. In this case, four people were charged under Section 302 read with Section 34. Three of the accused were acquitted by the High Court, but one of them was charged under this Section. The trial went to the Supreme Court who observed that if there was any other person involved in the act, then it could have been said that he shared common intention with the main accused and hence could have been acquitted but in this case, no one else was involved. Hence the Supreme Court upheld the acquittal of the three accused.
Section 149 IPC read with Section 302 IPC
Section 149 of the IPC talks about unlawful assembly. If any member of an unlawful assembly commits an offence as a result of a common object of the assembly, and every person involved from that assembly who was present at the time of the offence, shall be guilty under this Section. Once the common object of an unlawful assembly is proved, all members shall automatically be guilty. Vicarious liability created on the other members of the assembly depends on the fact whether they knew that the offence was likely to be committed. If an injury is caused to the victim when provoked by one of the members of the assembly, the rest of the members cannot be charged under Section 302. Section 302 read with Section 149 shall be applicable only when the injury is caused in pursuance of a common object to kill the victim.
In the case of Mohd. Shoaib @ Chutwa v. State (2022), the petitioner (Mohd. Shoaib) is seeking bail in the FIR filed against him. During the protests against the Citizenship Amendment Act 2019, the rioters burned down a sweet shop. When the witness (Himanshu) arrived at the scene, he saw a dead body who was identified as a waiter in the sweet shop. Hence the petitioner’s name was implicated in the charge sheet for the murder of the waiter. The petitioner argued that he was falsely accused and so is seeking bail. The Court observed that in order to charge a person under Section 302 read with Section 149 of the IPC, the unlawful common object must be proved with sufficient facts and circumstances. If there is no proper evidence, then the offence cannot be charged. Hence the Court held that Section 302 read with Section 149 cannot be imposed on allegations and assumptions.
Miscellaneous provisions of Section 302 IPC
Let us discuss some of the other issues that people might confront while dealing with Section 302 of the IPC.
Can a minor be convicted under Section 302 IPC
Almost every legal enactment in India has a provision for minors. It is important to take due care while dealing with a case involving a minor. So can minors be punished for murder? According to Section 82 of the IPC, a child below the age of seven years cannot be charged for any offence.
The Juvenile Justice (Care and Protection of Children) Act 2015, treated children aged 16 to 18 years as adults when charged with heinous crimes. This Act further mentions that no child can be sentenced to life imprisonment or death penalty under the Indian Penal Code or any other law which prescribes this punishment without the possibility of him/her getting released. The juvenile can be sentenced to a maximum term of 14 years.
In the caseShivam(minor) v. State of U.P and Anr. (2019), the appellant Shivam was charged with murder under Section 302 of the IPC. The appellant argued that he is a juvenile and the Juvenile Justice Board has determined his age as below 18 years. So he argued that he was falsely implicated and hence sought bail. The Court referred to Section 15 of the Juvenile Justice (Care and Protection) Act 2015, which states that the Juvenile Justice Board must conduct an inquiry examining the circumstances of the offence committed by the child who has attained 16 years and is charged with a heinous crime. Further, the grant for bail must show that it is against the interest of the child. In the present case, the appellant-accused does not have any specific role in the offence. Hence the Court granted bail to the appellant.
Conviction of a public servant under Section 302 IPC
A public servant cannot be tried under Section 302 of the IPC without the sanction for prosecution mentioned under Section 197 of the Code of Criminal Procedure 1973. This provision states that if a public servant has committed an offence while discharging his duties, then he can get prosecuted only when a sanction is granted by a higher authority.
Bail application under Section 302 IPC
Murder is one of the worst crimes that a person can commit. So murder is a non-bailable and non-compoundable offence, which means it can be punished with death or life imprisonment. Hence granting bail under this Section is very difficult. However, the accused can file a bail application but if the facts and circumstances are proving against him, then bail cannot be granted. The time limit for filing a bail application for an offence punishable with a death sentence or life imprisonment is 90 days. If the bail application is rejected, the accused can file a review petition before the Judge to review the application. A person who has surrendered for committing murder cannot be exempted from this section. He can file for bail but it is unlikely to get accepted as he himself has surrendered to the offence.
Conclusion
Section 302 of the IPC is a very detailed provision. Punishing an offender for murder might sound straightforward, but there are a lot of aspects to be considered. The most important of them is the problem of deciding whether to award a death sentence or life imprisonment. Further, as murder is a non-bailable offence, pleading not guilty and hoping for the bail application to be accepted also becomes difficult. So it is important for the Courts to rely on and examine the facts and circumstances of each case thoroughly while dealing with Section 302.
Phishing is an act of impersonation where a website pretends to be a legitimate source and collects confidential data. It is also known as “band spoofing” and “carding.”The act involves two steps, the first being the stealing of identity and the second being collection of confidential data. Hence, it is also referred to as a “two-fold scam” and “cybercrime double play.” With the rise of internet usage and transactions being done online, the number of victims and losses caused by phishing increased tremendously. This was further increased manifold with the coming of COVID-19, which increased people’s use of the internet. Currently, it is being estimated that the total damage caused by cybercrime would cost 10.25 trillion by 2025. It is also anticipated that phishing is going to be a major contributor to this number.
Types of phishing
While there are multiple kinds of phishing methods like spear phishing, smishing, vishing, whaling, clone phishing, water-hole phishing, etc., they can be grouped into four methods-
The first is the Dragnet method, which includes spammed emails, websites, pop-up windows or fake banner advertising bearing falsified corporate identification, that are addressed to a large class of people. For example, in the case of United States v. Carr, the phisher pretended to be AOL and sent emails to the AOL customers to update their credit card details.
The second method is the Rod and Reel in which specific prospective victims are identified in advance and provided with false information that makes them share their personal data. For example, in the case of United States v. Gebresehir, letters on bank letterhead along with altered or counterfeit Internal Revenue Service (IRS) forms were sent to the victims. These forms were to be filled and sent back through fax. The given fax numbers were not of the legitimate institution but were internet based fax-numbers which converted the faxes into e-mail attachments and then forward these attachments to email accounts. Wire transfer instructions were then sent to banks and money was transferred from the victims’ accounts.
The third mode is the Lobsterpot method which involves the creation of spoof websites. In this, certain people are identified and directed from other websites to the spoof website where details are collected. An example for this method is the case ofUnited States v. Kalin. In this case the phisher had created a spoof website of DealerTrack Inc. it provides services to auto dealerships via the internet. In this, the phisher created an identical website, where the dealership employees mistakenly entered their user id and password. With this, the phisher got access to their personal data.
The last method is the Gillnet method. In this method, malicious codes are introduced into websites or emails. Mere access to these could lead to a virus attack on your devices.
The nature of phishing, perhaps like most other types of crimes, is that the defense to it is two-fold. In the case of phishing, even if there are stringent laws, the constant vigilance of the internet users and other online institutions (e.g., banks with net banking infrastructure) is a necessity. The best way to not fall victim to phishing is by being vigilant as, despite best efforts, the effectiveness of a law is limited. This is because, firstly, it is difficult to find the perpetrator of an online crime. This is because, when an email is sent, it travels through a complex path. Phishers use an unsecured server or “Open Relay” to hide their identity. This means that there is a good chance that the victim may never be found. Secondly, it is difficult to obtain the personal jurisdiction of the courts. Often, phishing is a cross-border activity. The phisher might be located in a foreign country that is out of the law’s reach. Hence, even if the phisher is identified, bringing him or her to the law might not happen.
Of all the phishing scams that occurred in the US in 2005, only 32% of phishing websites were located in the United States. Thirdly, it is the problem of the perpetrator being judgment-proof. In this case, after the victim wins large punitive damages, the perpetrator either fails to make an appearance, file bankruptcy, or just disappears after the judgment is delivered. Sometimes, judgments cannot be enforced against the perpetrator as they transfer assets offshore to keep them beyond the reach of courts. The US House of Representatives too acknowledged the lack of effectiveness of civil enforcement.
Anti-phishing laws
Despite a dearth in the effectiveness of laws, it is pertinent to have them. It is better to acknowledge a crime as a crime and punish for committing it rather than ignoring it for it being less controllable. The legislation can act in two ways. It can prevent phishing from happening in the first place and or attack and punish for phishing already committed.
The U.S.A – At the Federal level, while there are laws like the CAN-SPAM Act of 2003, the U.S Safe Web Act of 2006, and the I-SPY Prevention Act of 2007, there is no particular law that specifically penalizes phishing. The Anti-phishing Act of 2005 Bill was proposed in the year 2005. However, it has not been made enforceable. This Bill proposed the criminalization of phishing emails and websites regardless of whether the receiver of the emails and visitor suffered damages. This Bill was put forth by Senator Leahy as “The [Act] protects the integrity of the Internet in two ways. First, it criminalizes the bait. It makes it illegal to knowingly send out a spoofed email that links to sham websites, with the intention of committing a crime. Second, it criminalizes the sham websites that are the true scene of the crime.” However, this act was never passed. There are, however, anti-phishing laws in many states of the US.
Australia- Under the Australian laws too, there is no legislation that addresses phishing directly. However, there are laws, both at the federal and state level that cover phishing like, the Crimes Act 1958, Criminal Code 2002 (Act), the Spam Act 2003, Trade Practices Act 1974, Privacy Act 1988, and similar equivalent legislations. Also, in 2007 a Discussion paper on identity crime was conducted and the recommendation was that three new model offences were to be created. They were (1) identity crime which encompasses identity theft and identity fraud; (2) on-selling identification information; and (3) possession of equipment to create identification information.
India- India’s legislative response has been similar to that of Australia and the US. India today is one of the major targets of phishers. While there is no legislation that addresses phishing directly, there are laws that cover phishing activities. The identification of activity as phishing was done by the Delhi High Court in the famous case of NASSCOM v. Ajay Sood, in 2005. The court stated that there were no laws on “phishing” and that laws on misrepresentation and passing off are used to fight against phishing. Later, in 2008, the Information Technology Act 2000 was amended to add provisions for identity theft and cheating by impersonation. However, the amendment did not address “phishing” directly.
While there are a plethora of provisions to criminalize the act of phishing, there are a few areas that must be addressed. The SDPI rules are narrow and limited in both scope and application. They apply only to an individual’s personal data and government agencies and NGOs are exempted from it who collect data from individuals. Also, these do not govern or provide a framework for the protection of the data of corporate entities. This shortage affects start-ups who are keen on keeping their costs low.However, the Government plans to come up with open-source security tools. Also, with regards to the Reserve Bank of India’s regulations, it can be said that the widespread use of AI and digitization make RBI regulation less effective as metadata can still be exploited. Hence, while there are plenty of laws in place, there are gaps that ought to be filled.
To conclude, it is to be noted that companies that fall victim to phishing are affected seriously. Not only do they lose data, but also face monetary loss, productivity loss, customer loss, IP theft, and most importantly, the reputation and company value are severely affected. Also, when companies fall victim, they are held responsible. Heavy fines must be paid by an organisation on account of mishandling customers’ data. For example, Sony paid millions of dollars in 2014. The data that was leaked contained personal information about Sony Pictures employees, emails between employees, information about executive salaries at the company, copies of then-unreleased Sony films, plans for future Sony films, scripts for certain films, etc.
The company was a victim of spear-phishing where emails with malware were sent to the employees. Hence, more effective laws, international coordination, and constant vigilance is necessary to fight against phishing.
References
Vikrant Narayan Vasudeva, Phishing: Deception in Cyberspace, 2010 PL November 10. Accessed from SCC Online.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Allow notifications
