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Mar 26, 2025

Legal Desire Fellowship 2025

About Legal Desire As one of the fastest-growing legal news and information brands, we strive to bring a comprehensive and objective perspective to the legal stories that shape our world. Our news team takes a multi-faceted approach to journalism, utilizing various mediums such as live blogging of court judgments, news coverage, opinion pieces, interviews, data, photography, video, and special reports to bring our readers a well-rounded understanding of the complex legal landscape. About Fellowship Are you a young law graduate ready to challenge the status quo? We're seeking fresh perspectives from those who dare to think beyond traditional legal careers in litigation and judiciary. If you're a young lawyer with innovative ideas and a passion for legal technology, media, or business development - you're exactly who we need. What We're Looking For Are you a young law graduate ready to challenge the status quo? We're seeking fresh perspectives from those who dare to think beyond traditional legal careers in litigation and judiciary. If you're a fresher with innovative ideas and a passion for legal technology, media, or business development - you're exactly who we need! Take a look at our diverse offerings below and envision how you could contribute to our mission. Whether it's content creation, legal-tech innovation, or business development - we want you to define your own role and show us what unique value you bring to the table. This is your chance to design your own career path. Tell us your vision, set your goals, and let's create something extraordinary together. Eligibility Law Graduates Mode Hybrid (New Delhi) Duration 3 Months Application deadline 10th April'25 Fellowship Amount INR.75K

Naz

Jan 17, 2024

Plea Bargaining in India: Balancing Justice and Expediency

Introduction: Plea bargaining, a legal process allowing a defendant to plead guilty to a lesser charge in exchange for a lighter sentence, has gained prominence in India as a mechanism to expedite the judicial process and reduce the burden on an overburdened legal system. The concept was introduced in India through the Criminal Law (Amendment) Act, 2005, amending the Code of Criminal Procedure, 1973. While plea bargaining offers efficiency, critics argue that it may compromise justice. This article explores the intricacies of plea bargaining in India, examining its evolution, legal framework, and presenting case studies that shed light on its impact. Evolution of Plea Bargaining in India: Before the introduction of plea bargaining, the Indian criminal justice system faced challenges such as an overwhelming backlog of cases and prolonged trials. Plea bargaining was envisioned as a solution to expedite the resolution of cases by encouraging accused individuals to admit guilt in exchange for a reduced sentence. The legal framework for plea bargaining in India is primarily governed by Chapter XXI-A of the Code of Criminal Procedure (CrPC), 1973. This practice was introduced in the CrPC in 2005. Sections 265-A to 265-L lay down the procedure and conditions for plea bargaining. The process involves the accused and the prosecution mutually arriving at a satisfactory disposition, subject to the court's approval. However, it is not permissible for offences punishable with the death penalty, life imprisonment, or a sentence exceeding seven years. The CrPC does not allow for a bargain to be struck for a lesser offence or for compounding the offence, and the accused will be considered to have confessed and been convicted of the offence. In India, plea bargaining is limited to sentence bargaining, or negotiating a lighter sentence in exchange for the accused's guilty plea. Plea Bargaining in “The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023”: BNSS2 retains the above clause from CrPC but has added a condition which requires the accused to file an application for plea bargaining within 30 days of the framing of charges, which can limit the effectiveness of this practice. Understanding the Importance of Plea Bargaining: India's judiciary grapples with a staggering number of pending cases, exceeding 4.7 crore (47 million) as of July 2022. Traditional trials, often time-consuming, contribute significantly to this backlog. Plea bargaining offers a possible solution by incentivizing guilty pleas in exchange for reduced sentences or charges. This can benefit both the accused, who experience shorter incarceration and lower legal expenses, and the state, by alleviating court workloads and freeing up resources for more complex cases. Additionally, plea bargaining can facilitate closure for victims and contribute to societal peace by resolving cases swiftly. Limitations and Concerns: Despite its potential benefits, concerns surround plea bargaining's potential for abuse and injustice. Critics argue that it can disadvantage vulnerable defendants, particularly those unaware of their rights or lacking adequate legal representation. The pressure to plead guilty, even for the innocent, can be immense, especially in light of lengthy incarceration periods and overburdened judicial systems. Furthermore, concerns regarding fairness arise when powerful or privileged defendants negotiate more favourable outcomes compared to their less fortunate counterparts, potentially exacerbating existing inequalities within the legal system. Comparison with Foreign Systems: Examining plea bargaining systems in other countries provides valuable insights into its potential pitfalls and best practices. In the United States, for instance, plea bargaining is far more prevalent than in India. However, robust safeguards, including stricter judicial oversight and stricter rules regarding prosecutorial discretion, aim to mitigate its negative consequences. In comparison, plea bargaining in Germany is less common and subject to stricter regulations, such as mandatory judicial approval and limitations on its applicability to more serious offenses. Case Studies: State of Maharashtra v. Swapnil Tripathi (2014): In this case, the accused was charged with offences under the Narcotic Drugs and Psychotropic Substances Act. The accused opted for plea bargaining, and the court, after considering the facts and circumstances, agreed to the plea bargain. The accused received a reduced sentence, showcasing the effectiveness of plea bargaining in swiftly resolving cases involving non-violent offences. Suresh v. State of Haryana (2017): This case involved a white-collar crime where the accused was charged with financial fraud. The accused entered into a plea bargain, admitting guilt and agreeing to cooperate with the investigation. The court accepted the plea bargain, emphasising the need for expediency in dealing with complex financial crimes. Critiques and Challenges: While plea bargaining offers advantages in terms of efficiency, it has faced criticism on various fronts. Concerns include the potential for coercive tactics, unequal bargaining power, and the fear that innocent individuals may opt for plea bargains to avoid the uncertainties of a trial. Critics argue that this could undermine the fundamental principle of 'innocent until proven guilty' and compromise the integrity of the justice system. Conclusion: Plea bargaining in India represents a pragmatic approach to address the challenges faced by the criminal justice system. While it has proven effective in expediting certain cases, there is an ongoing debate regarding its implications on justice and fairness. As the legal landscape continues to evolve, it is crucial to strike a balance between expediency and the protection of individual rights to ensure a just and equitable criminal justice system in India.

Tripti

Jan 10, 2024

Promissory Estoppel: Exploring Binding Promises Through Case Studies

When talking about contracts, where agreements and consideration reign supreme, a fascinating doctrine known as promissory estoppel stands as an exception. It goes beyond the classic handshake deal, enforcing promises even when there is no formal contract or written document. This article delves into the essence of promissory estoppel, dissecting its core elements and illuminating its application through captivating case studies. The Essence of Promissory Estoppel: At its core, promissory estoppel prevents a promisor from reneging on a promise if the promisee has relied on it in a way that causes them detriment. It essentially upholds the principle of fairness, ensuring that individuals don't suffer for placing trust in genuine, albeit informal, promises. Key Elements of the Doctrine: To successfully invoke promissory estoppel, several key elements must be present: Clear and Definite Promise: The promise made by the promisor must be clear, unambiguous, and intended to influence the promisee's actions. Reasonable Reliance: The promisee's reliance on the promise must be reasonable and foreseeable by the promisor. Detrimental Reliance: The reliance must have caused the promisee some form of detriment, such as financial loss, changed position, or forgone opportunity. Injustice in Refusal to Enforce: If the court refuses to enforce the promise, the resulting injustice to the promisee must be uncorrectable through other legal means. Case Studies: Bringing Promissory Estoppel to Life: 1. Central Inland Water Transport Corporation Ltd. v. Brojo Nath Chatterjee (1988): Facts: Mr. Chatterjee was verbally promised a permanent job by the government-owned Central Inland Water Transport Corporation. He resigned from his existing job based on this promise and joined the Corporation. However, later, the Corporation refused to formalise his appointment due to procedural issues. Holding: The Supreme Court applied promissory estoppel. Although no formal contract existed, the Corporation's clear promise and Mr. Chatterjee's reliance on it by resigning from his previous job caused him detriment. The Court ordered the Corporation to grant him permanent employment. 2. T.N. Rangaswami v. The Eastern Spinning Mills Ltd. (1962): Facts: The Eastern Spinning Mills announced plans to expand its factory and promised preferential employment to those who would purchase shares in the company. Mr. Rangaswami bought shares based on this promise. However, after the expansion, the company refused to give him preferential hiring. Holding: The Madras High Court upheld the applicability of promissory estoppel. The Court found that the company's unambiguous promise induced Mr. Rangaswami to purchase shares to his detriment (financial investment). They directed the company to consider him for a suitable position. 3. Technoflex Industries (Madras) Pvt. Ltd. v. A.P.S.R.T.C. (1995): Facts: Technoflex Industries submitted a tender for supplying buses to the Andhra Pradesh State Road Transport Corporation (APSRTC) based on an alleged verbal assurance of receiving the contract. They invested resources in preparing the tender but ultimately lost to another bidder. Holding: The Andhra Pradesh High Court rejected the application of promissory estoppel. The Court ruled that mere hope or expectation arising from a casual conversation, without a clear and specific promise, does not constitute detrimental reliance. Technoflex's investment in preparing the tender was considered insufficient to invoke the doctrine. 4. A.R. Antulay v. R.S. Nayak (1988): Facts: Mr. Antulay, the Chief Minister of Maharashtra, assured a contractor, Mr. Nayak, that his tender for a construction project would be accepted. This assurance allegedly violated due process and contravened public policy. Holding: The Supreme Court acknowledged the existence of promissory estoppel but clarified its limitations. The Court ruled that the doctrine cannot be used to enforce promises that are illegal or contradict public interest. As Mr. Antulay's promise violated public policy, Mr. Nayak's claim based on estoppel was rejected. 5. Central London Property Trust Ltd. v. High Trees House Ltd. (1947): A landlord promised a tenant they could retain rent-controlled status if they carried out extensive repairs. The tenant spent significant money on renovations, and the court ruled that the landlord was stopped from reneging on their promise due to the tenant's detrimental reliance. 6. Cobbs v. Neil (1859): A father promised his son an annual allowance in exchange for the son abandoning a lucrative career prospect. The son complied, but the father later stopped payment. The court found that the son's detriment (giving up his career) justified enforcing the father's promise through promissory estoppel. These cases highlight the nuanced application of promissory estoppel. While it serves as a safety net for those relying on genuine promises, the courts carefully balance it with commercial logic and considerations of potential abuse. Conclusion: Promissory estoppel stands as a testament to the human value of trust and fairness in the legal system. It reminds us that sometimes, even promises spoken in whispers can hold the weight of law. As we navigate the complexities of agreements and expectations, understanding this doctrine empowers us to protect ourselves from broken promises and uphold the integrity of our interactions.

Tripti

Dec 27, 2023

Analysis of Key Reforms in Indian Parliament: Important Legislative Bills of 2023

Introduction As 2023 comes to an end, it is worth mentioning that this year has been explosive and dynamic for our Indian Parliament. The Indian Parliament, more active than ever managed to pass some very important legislations in its Monsoon(July to September) and Winter session (November to December) This article will give you a brief idea about the following legislations passed: Bhartiya Nyahya (Second) Sanhita, 2023 (BNS2) The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 The Bharatiya Sakshya (Second) Bill, 2023 The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 Bhartiya Nyahya (Second) Sanhita, 2023 (BNS2) Timeline Lok Sabha(Introduced) Lok Sabha(Passed) Rajya Sabha(Passed) Dec 12, 2023 Dec 20, 2023 Dec 21, 2023 Key Highlights The Bharatiya Nyaya (Second) Sanhita (BNS2) maintains a majority of offences from the Indian Penal Code (IPC). However, it introduces community service as a form of punishment, replacing sedition as an offence. The BNS2 also creates a new offence for acts endangering the sovereignty, unity, and integrity of India. This includes terrorism, defined as an act intended to threaten the unity, integrity, security, or economic security of the country, or to strike terror in the people. organised crime is now an offence, encompassing crimes such as kidnapping, extortion, and cybercrime committed on behalf of a criminal syndicate. Furthermore, petty organised crime is also an offence under the BNS2. Murder committed by a group of five or more individuals based on certain identity markers such as caste, language, or personal belief is punishable with life imprisonment or death, and a fine. Key Issues The age of criminal responsibility in India remains at seven years old, with the possibility of extending to 12 years depending on the maturity of the accused. This does not align with international conventions and recommendations. According to the BNS2, a child is defined as anyone under the age of 18. However, the age threshold for certain offenses, such as rape and gang rape, is different for the victim. Additionally, the BNS2 does not incorporate recommendations from the Justice Verma Committee (2013), such as making rape a gender-neutral offense and including marital rape as a crime. The Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 Timeline: Lok Sabha(Introduced) Lok Sabha(Passed) Rajya Sabha(Passed) Dec 12, 2023 Dec 20, 2023 Dec 21, 2023 Key Highlights The Bharatiya Nagarik Suraksha (Second) Sanhita (BNSS2) aims to revise the Criminal Procedure Code (CrPC) of 1973. The CrPC outlines the procedures for arrest, prosecution, and bail. The BNSS2 mandates the incorporation of forensic investigation for offences punishable with seven years of imprisonment or more. Forensic experts will visit crime scenes to collect and document evidence. All legal proceedings, including trials, inquiries, and investigations, may be conducted in an electronic format. The production of electronic communication devices, likely to contain digital evidence, will be allowed for investigation, inquiry, or trial. If a wanted criminal has fled to avoid trial and there is no immediate possibility of arresting them, the trial may proceed in their absence. In addition, specimen signatures, handwriting, fingerprints, and voice samples may be collected for investigation or proceedings, even from individuals who have not been arrested. Key issues Under the BNSS2, an accused person can be held in police custody for up to 15 days, which can be authorised in parts during the initial 40 or 60 days of the 60 or 90 days period of judicial custody. If the police have not exhausted the 15-day custody limit by the end of the initial period, the accused may not be granted bail for the entire duration of their judicial custody. The Code of Criminal Procedure (CrPC) allows for bail for an accused person who has been detained for half the maximum imprisonment for the offence. However, the BNSS2 does not provide this facility for individuals facing multiple charges. Since many cases involve charges under multiple sections, this limitation on bail may be particularly significant. Despite recommendations from high-level committees to reform sentencing guidelines and codify the rights of the accused, these recommendations have not been incorporated into the BNSS2. The Bharatiya Sakshya (Second) Bill, 2023 Timeline: Lok Sabha(Introduced) Lok Sabha(Passed) Rajya Sabha(Passed) Dec 12, 2023 Dec 20, 2023 Dec 21, 2023 Key Highlight The Bharatiya Sakshya (Second) Bill of 2023 (BSB2) amends and replaces the Indian Evidence Act of 1872 (IEA). While maintaining many provisions of the IEA, the BSB2 introduces significant changes regarding evidence types. The IEA categorises evidence into documentary and oral evidence, with documentary evidence consisting of primary (original documents) and secondary (proving the contents of the original) evidence. The BSB2 retains this distinction and classifies electronic records as documents, making them primary evidence. Additionally, the BSB2 expands secondary evidence to include oral and written admissions and the testimony of an expert in document examination. Furthermore, the BSB2 includes information stored in semiconductor memory or communication devices, such as smartphones or laptops, within the definition of electronic records. Key Issues At present, electronic records must be authenticated through a certificate to be considered valid legal documents. However, the BSB2 has retained this requirement while also categorising electronic evidence as documents, which creates a contradiction. Additionally, under the IEA, any fact discovered through information obtained from an accused in police custody is provable, which the BSB2 has also retained. However, courts and committees have noted that these facts may be obtained through coercive means without adequate safeguards. The Law Commission has made several recommendations, including the presumption that the police officer is responsible for any injuries sustained by an accused in police custody, but these recommendations have not been incorporated into the law The Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023 Timeline: Lok Sabha(Introduced) Lok Sabha(Passed) Rajya Sabha(Passed) Aug 10, 2023 Dec 12, 2023 Dec 21, 2023 Key Highlights The Bill replaces the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act of 1991, which outlines the appointment, salary, and removal of the Chief Election Commissioner (CEC) and Election Commissioners (ECs). Under the new Bill, the CEC and ECs will be appointed by the President upon the recommendation of a Selection Committee comprising the Prime Minister, a Union Cabinet Minister, and the Leader of Opposition/Leader of the largest opposition party in the Lok Sabha. The Selection Committee's recommendations will remain valid even if there are vacancies in the Committee. A Search Committee headed by the Cabinet Secretary will propose a list of candidates to the Selection Committee. To be eligible for the positions, individuals must have held or currently hold a post equivalent to that of Secretary to the central government. The salary and conditions of service for the CEC and ECs will be the same as those of the Cabinet Secretary, which is currently equivalent to the salary of a Supreme Court Judge. Key Issues The Election Commission's selection process may be vulnerable to government influence, which could compromise its independence. Accepting recommendations from the Selection Committee despite a constitutional vacuum could result in the government having a monopoly on selecting candidates. Additionally, making the Chief Election Commissioner (CEC) and Election Commissioners' (ECs) salaries equal to that of the Cabinet Secretary may give the government undue influence over their appointments, as their salaries are set by the government. This is in contrast to the salary of a Supreme Court judge, which is determined through an Act of Parliament. Furthermore, the fact that CECs and ECs perform quasi-judicial functions suggests that limiting their positions to senior bureaucrats may exclude other qualified candidates.

Tripti

May 15, 2023

20 Basic Traffic Laws and Rights Every Person in India Must Know

The Government of every country is responsible for the formulation of traffic rules that must be followed by the citizens of a country. In the Indian context, the Government of India is responsible for conceptualizing traffic laws and ensuring compliance by Indian citizens. In India, the Motor Vehicles Act, 1988, recently amended by way of the Motor Vehicles (Amendment) Act, 2019, governs the rules, regulations, penalties, and other stipulations regarding vehicles and traffic in India. Recently, on July 15, 2019, Mr Nitin Gadkari, the Minister of Road Transport and Highways, introduced the Motor Vehicles (Amendment) Act, 2019 in the Lok Sabha. This act was a revolutionary measure which aimed to promote road safety, and the act also aimed to alter the erstwhile Motor Vehicles Act of 1988. The Act establishes requirements for motor vehicles, the issuance of licenses and permits relating to motor vehicles, and sanctions for violations of these laws. The main features include a programme for providing care to victims of traffic accidents during the "golden hour”, without the immediate hassle of payment, the creation of a Motor Vehicle Accident Fund, mandatory insurance for all Indian road users, and also provided for the ability for the central government to order the recall of motor vehicles which had a defect that could endanger the environment. Furthermore, according to the amended legislation, the central government has to work with state governments in tandem in order to create a National Transportation Policy. The amendment also empowered the central government to issue a notification in order to establish the National Road Safety Board. The aforementioned Board shall be instrumental in providing advice to the union and state governments on all facets of traffic control and road safety. The amendment also enhanced the penalty for a number of Act-related offences. All in all, it can be ascertained that the act sought to give teeth to the central government in the gamut of traffic laws, in the Indian context. These laws lay down an all-comprehensive set-up for governing traffic-related offences and rules in India. The Indian Laws are applicable pan-India and are enforced by way of various legislations regarding traffic laws which govern the Indian citizens. This article states 20 basic traffic laws that every Indian citizen must be aware of- Penalties for Drunk Driving- Under S.150 (2)(ii) of The Motor Vehicles Amendment Act, 2019, it is stated that the penalty for driving under the influence of alcohol has been increased from the erstwhile Rs. 2000/- to a whopping Rs. 10000/ which shall be levied according to the Indian Laws, in case person(s) are caught driving whilst under the influence of alcohol. Failure of Compliance with Vehicular Manufacturing Standards- In case a Vehicle Manufacturer contravenes the Indian Laws mandating certain specifications for the manufacturing of motor vehicles, under Section 215B(2)(a) of the Motor Vehicles Amendment Act, 2019, the persons responsible in the company can be punished with a sentence of imprisonment spanning up to a period of 1 year or a fine of Rs. 100 crore, or both. Failure of Compliance with Road Design Standards- Under S.198 A of The Motor Vehicles Amendment Act, 2019, if a contractor fails to comply with road design standards, the penalty will be a fine of up to 1 lakh Rupees. The Government of India may increase fines mentioned under the Motor Vehicles Amendment Act, 2019, every year by up to 10%. Recall of Vehicles- Section 110A(1) of The Motor Vehicles Amendment Act, 2019, allows the Government of India to immediately seek recall of motor vehicles in case of defects in the vehicle which might be a reason for causing damage to the environment, Indian citizens, road users, or infringe the rights of the driver. Liability of Manufacturer- In case a vehicle does not comply with the specifications laid down under Indian laws, then the manufacturer is liable for reimbursement of the buyers, with respect to the full cost of the vehicle, or ensuring replacement of the defective vehicle, with another piece with either equal or better specifications. Exemption of Liability for Good Samaritans- In the context of governing Indian Citizens, Under Section 134A of the Motor Vehicles Amendment Act, 2019, it is the right of such a good Samaritan not to be made liable either in a civil or criminal action under Indian laws, due to death or injury of such victim, even if they were negligent in handling the victim. A ‘Good Samaritan’, is a person who aids another by way of extending medical or non-medical assistance, to the victim of an accident or mishap, in good faith and voluntarily, without the expectation of any monetary benefit or reward. Compulsory Insurance- Section 164B(2) of The Motor Vehicles Amendment Act, 2019 provides for compulsory insurance coverage to all Indian citizens and road users in India. This coverage shall cover the treatment & compensation to a person affected by a road accident and coverage also extends to compensation for representatives of such a person affected and any other person prescribed under the Indian Laws. Applicability of Insurance- The compulsory insurance coverage to all Indian citizens shall be applicable in various cases such as when a person is a victim of a road accident and requires treatment, disbursal of funds to representatives, and others. These stipulations have been stated under Section 164B(3) of The Motor Vehicles Amendment Act, 2019, which states that insurance is necessary to protect the interests of Indian citizens and other stakeholders. Funding of Insurance Coverage- Under Section 164B of the Motor Vehicles Amendment Act, 2019, the Fund will be credited through (i) payment of a nature notified by the Government of India, (ii) a grant or loan made by the Government of India, (iii) balance of the Solatium Fund (existing fund under the Act to provide compensation for hit and run accidents), or (iv) any other source as prescribed the Government of India. Assistance for Accidents during Golden Hour- The Government of India states that immediate assistance must be provided to Indian citizens and Road Accident Victims by way of extending cashless treatments for accidents that occur during the golden hour, which is defined under Section 12A of the Motor Vehicles Amendment Act, 2019 as a time period of up to 1 hour following a traumatic injury when the chances of prevention of death by way of appropriate medical intervention is the highest. Compensation for Hit-and-Run Accidents- Further, the Government of India states under Section 145(d) of the Motor Vehicles Amendment Act, 2019 that the interim relief to be provided to the victim of a road accident must be increased, thus increasing it to Rs. 2 Lakhs from the previous amount of Rs. 25,000/- in case of death, and in case of resultant grievous injury, Rs. 50,000/- from the present Rs. 12,500/-. Mandatory Registration of Vehicles- With respect to Indian citizens, it is stated under Section 17 of the Motor Vehicles Amendment Act, 2019 that registration of a vehicle is mandatory and has to be done necessarily by the purchaser, at the time of purchase of a vehicle. The act prohibits anyone from driving an unregistered motor vehicle on Indian roads. Indian citizens and others may be punished with a fine, and imprisonment for subsequent/second default. Mandatory Requirement of Driving License- In the context of governing Indian Citizens, Section 7 of The Motor Vehicles Amendment Act, 2019 restricts driving or plying of a vehicle in a public place until the Indian citizen or other person has been issued a driving license, following which the person has all rights to drive the vehicle. Eligibility for Receiving a Driving License- Any Indian Citizen or other who is above the age of 18 years is eligible in order to receive a driving license under Indian Law. However, no person below the age of 20 years can ply transportation vehicles. A person may also be issued a temporary license, or a learners’ license. Grounds for Suspending Driving License- Section 11 of Motor Vehicle Amendment Act, 2019, states that if a person has caused the death or serious injury of one or more people, their right to a driving license may be suspended. Conditions for license revocation by the licensing authority may include drunk driving, drug addiction, fraud or misrepresentation displayed whilst receiving a driving license, danger to the public based on previous conduct, etc. Protections to Pedestrians- The Motor Vehicle Driving Regulations Act, 2017 lays down under Section 3 that no vehicle may be operated, stopped, or parked on a road or in a public space in a way that would risk their own safety or the safety of other road users. It is imperative to protect the lives of pedestrians. Duties of Drivers and Riders- Under Section 5 of The Motor Vehicle Driving Regulations Act, 2017, has been laid down regarding various duties of drivers such as ensuring care and caution, being in full control of their physical as well as mental senses, further, the driver must always keep a sharp eye out for oncoming traffic and the road, and avoid engaging in any activity that can divert his attention. Liability of Driver to Ensure Safety- The Motor Vehicle Driving Regulations Act, 2017, under Section 5, further lays down that the driver and passengers must exercise extra caution and safety measures to protect the most vulnerable road users, such as pedestrians, cyclists, kids, the elderly, and those with disabilities. The driver is responsible for making sure that his vehicle doesn't impede or inconvenience other road users or residents of any property, whether it's moving or stopped. The driver must make sure that no obstructions to his or her vision or hearing are caused by other road users, animals, the load, or equipment in the car. Actions in case of Accident- The Motor Vehicle Driving Regulations Act, 2017, under Section 29 lays down that driver shall maintain absolute cool in case of an accident and do nothing that may harm the other driver or vehicle involved in the accident or any other person. It further lays down actions that need to be taken in case of a minor accident, and actions to be taken in case of a major accident. Rear Seat Belt Mandatory- The Ministry of Road Transport and Highways, Government of India, has released proposed regulations requiring auto manufacturers to incorporate back seatbelt alarm systems. The deadline for receiving public comments on the proposed rules falls in October 2022. In case the draft materializes, it would be mandatory for back-seat passengers to wear a seatbelt to avoid and minimize the risk of accidents

Sumasri

Dec 19, 2022

What to do in case Of Public Nuisance or Private Nuisance

Introduction The term “Nuisance” implies any unlawful or tortious interference with a person’s use or enjoyment of land or the disturbance caused to any person keeping them from exercising their common right. Nuisance is indirect or consequential interference with someone’s land. For instance, if a person plays songs on a speaker in an annoyingly loud fashion, the right to the enjoyment of other people gets violated and the person has therefore committed the act of nuisance. In instances of nuisance, it is not pertinent for the wrongdoer to have interfered with or taken possession of land or any property; merely causing a hindrance to the right to enjoy it can be actionable. Finally, the act of nuisance can be done through both tangible and intangible properties, the latter including noise, smell, smoke, emissions, et. al. Types of Nuisance Having understood the meaning of nuisance, it is now pertinent to be able to distinguish between the person or the class of people against whom the wrongdoer has committed the act of nuisance. Private Nuisance If there has been any unreasonable interference with the property of the aggrieved party, followed by an interference with the enjoyment of the land resulting in legal damage, then this would be the Tort of Private Nuisance. The essential aspect here is that it should result in legal damage or injury to the aggrieved party. It is a prerequisite for any tortious claim to be associated with a legal injury and not merely an ancillary one. Public Nuisance However, if a person has interfered with the enjoyment of any property of the public at large, implying any activity that would cause obstruction or inconvenience to the people, then this would be the Criminal Offence of Public Nuisance. Section 268 of the Indian Penal Code, reads “Any person would be guilty of public nuisance who does or is guilty of doing any act of an illegal omission which causes any common injury, danger, or annoyance to the public or people in general who dwell or occupy the property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have an occasion to use any public right.” The Tort of Private Nuisance Private Nuisance is a more specific type of nuisance out of the two kinds, purely because of its nature and the ingredients which define the tortious activity, it has been deemed to be an action which is of a civil nature and not criminal. This implies that any suit filed in the Court of Law against the tortious wrongdoing would result in damages in the form of compensation and injunction rather than any prison sentence. The most essential ingredients of Private Nuisance are as follows: There should be an unreasonable interference with the property of the aggrieved party or such an interjection with the said property that can not be reasonably necessitated in the Courts of Law. For instance, in the landmark case of Sturges v Bridgman[1], it was held that the reasonability of nuisance differs from person to person and therefore it is not a defence for the defendant to claim reasonable precaution of an unreasonable misuse. The act of interference must also result in a hindrance to the enjoyment of the land of the aggrieved party. For instance, if a person has piled up an accumulation of garbage at the gates of the aggrieved party resulting in its spillage over and above the demarcated boundaries between the wrongdoer and aggrieved party, the former can be held liable for the tort of private nuisance by the latter. The nuisance caused, thereof, must be a direct result of the interference and interjection and not a remote one. In the landmark case of Radhey Shyam v. Gur Prasad[2], the High Court of Judicature at Allahabad held that the move by the plaintiffs to establish a permanent injunction against the defendants from opening a flour mill close to the former’s residence would add to the already established noisy neighbourhood. In this case, regarding the right to operate a business, the defendant as mentioned under Article 19(1) of the Constitution had a reasonable exception in favour of the right to enjoy the land of the plaintiff. Another extremely pertinent issue in the Tort of Private Nuisance is whether an act which has no illegal connotation being enjoyed by a person on their own property can become the cause for the tortious claim of a private nuisance if it is unreasonable to any other person. To understand this dichotomy, we need to invoke the phrase used by the Hon’ble Justice in the case of Att. Gen v Cole[3] said, “if a man creates a substantial discomfort to others, he can not say that he’s acting reasonably. The two things are self-contradictory” The solution to the quandary as presented above was found in the case of Christie v. Davey wherein the defendant became increasingly annoyed by the continuous sound originating from the house of the plaintiff. The latter held the claim of him being merely involved in the practice of music lessons. However, the Court held that regardless of the commission of legal activity (here, music lessons) it can not amount to discomfort to the other party/s. The Criminal Offence of Public Nuisance Vis-A-Vis Section 268 of IPC. Public Nuisance is an offence committed against the “public” or community. It becomes rather difficult to define the term public since its literal connotation refers to a group of an unspecified number of people. The question that one may beg is whether loud music from a household suffices to be an instance of a public nuisance if it causes unnecessary disturbance to more than one person in an adjacent household. To clear the doubts, it has been established that the definition of “public” would tantamount be read with Section 12 of the Indian Penal Code which gives, “The word “public” includes any class of the public or any community.” Like private nuisance, public nuisance can result from negligence or intentional activity. Courts will also scrutinise factors like the kind of neighbourhood, the nature of the harm and the proximity to those who are injured. However, a major difference from private nuisance concerns who may sue to recover damages. Since the impact of the nuisance is felt by the public, the law limits the right to sue to: 1. Public authorities who are responsible for protecting the rights of the public. These include state and federal agencies such as parks departments or environmental protection agencies; and 2. Those individuals suffer special damage from the nuisance. This means harm is different in kind than that the public suffers. It was held in the landmark case of Dr Ram Raj Singh v. Babulal[5] that the explanation of “special damage” means damage caused to a party in contradiction to the public at large.[4] The proof of this special damage entitles the plaintiff to bring a civil action for what may otherwise be a public nuisance. The seminal case for this doctrine was Campbell v Paddington[6] Corporation wherein the plaintiff rented an apartment especially to view the funeral procession of King Edward VII and also sold some tickets to profit from the headline event. However, the defendant company erected a stand on the date of the procession completely blocking the view and resulting in heavy losses for the plaintiff. She filed a suit of public nuisance along with a special loss/damage to her for which she was duly compensated. What To Do If Your Neighbour Creates a Nuisance In the day and age, we find ourselves in, incessant modernisation has led to several cooperative housing societies being formed which have made people become aware of their duties to be courteous and harmonious and at the same time, their rights of ensuring the same. If your neighbour has been creating a nuisance by partaking in the following, however not limited to, acts: Piling up litter or trash at the common boundary between the two houses Playing unreasonably loud songs at inconvenient hours without any prior information Involved in the preparation of any substance which lets off a whiff of odour or fumes Any other activity which causes direct discomfort to you or the members of the household. In such a situation, the most immediate steps you can take are: Inform the neighbour of the discomfort it causes you and/or the members of your household. If used, keep a copy of the letter for further steps if required. If the neighbour persists despite warning/s, then you may send them a Legal Notice which would be a formal and substantial indication of your abhorrence and discomfort at their antics. The neighbour will be compelled to respond to the Notice, failing which they would be liable to appear before the Court. You may also file a First Information Report (FIR) (as is provided under Section 154 of the Criminal Procedure Code) and file a complaint against the neighbour under Section 268 of the IPC for causing a public nuisance with special damage. Right to Privacy as a Defence Against Nuisance and/or Vandalism It was held in one of the most seismic cases of Justice K.S. Puttaswamy v Union of India[7] that the fundamental right of every individual is guaranteed by the Constitution and the same shall be read in consonance with the unenumerated rights under Article 21 of the Constitution promising a Fundamental Right to Life and Personal Liberty. Vandalism is also quite a sour problem in society. To best gauge the meaning of vandalism, one has to look at Section 425 of the Indian Penal Code which defines mischief. It reads, in brief, that whoever with intent to cause or knowing that it might cause wrongful loss or damage to the public, person, destruction, et al thereby destroys or diminishes its value or utility has committed “mischief” Chapter XVII of the Indian Penal Code includes such offences which can be included under the umbrella of Vandalism. The section is based on the legal maxim, sic utre tuo ut allenum non leadas, namely, use your own property so as not to injure another’s property.[8] The express mention of the word 'Damage' which is not limited in its scope by definition, is not excessive and/or redundant and is indicative of the fact that the purview of the offence of 'Mischief' is not intended to be confined only to cases of 'Wrongful loss', but also to engulf within it all such cases of damages by unlawful means as in this case.[9] [1] (1979) 11 Ch. D. 852 [2] AIR 1978 All. 86. [3] (1901) 2 Ch. 205 [4] Tort Law: The Rules of Public Nuisance Lawshelf.com, https://lawshelf.com/shortvideoscontentview/tort-law-the-rules-of-public-nuisance (last visited Sep 27, 2022) [5] AIR 1982 All 285 [6] (1911) 1 K.B. 869 [7] WP (C) 494/2012 [8]Prajwal Poojary, Legal Provisions regarding Mischief-Section 425 of IPC, Share Your Essays, available at- http://www.shareyouressays.com/knowledge/legal-provisions-regarding-mischief-section-425-of-ipc/115802 (visited on 28th September; 5:05 PM) [9]Arjuna Goudo and Ors. V State and Anr., (AIR 1969 Ori 200)

Sumasri

Dec 13, 2022

Rylands v. Fletcher - Case Study on Strict Liability

Facts: The defendant, Rylands, had a reservoir constructed on his land by independent contractors. When the construction of the reservoir was in process, the contractors came across some old coal shafts and passages that were beneath the defendant’s land. These passages were connected to a mine on another person’s land, i.e. the plaintiff, Thomas Fletcher, but the contractors discovered that they were filled with loose soil and earth. The contractors did not pay attention to them and continued to build the reservoir over the passages. When the reservoir was complete, it was filled with water. Shortly after the water was filled in the reservoir, the water caused the reservoir to burst and entered the passages beneath the reservoir. Consequently, the water reached the plaintiff’s (Fletcher) land and burst through the mine on the land, thus flooding them. Fletcher tried pumping the water out, but his pump also burst, causing the mine to flood again. Ultimately, a mines inspector was called, and the coal shafts beneath the defendant’s land were discovered. Fletcher brought an action against Rylands as well as the landowner, Jehu Horrocks, on 4th November 1861. Issues: Whether the negligence of the contractors made the defendants liable for the damage caused? Whether the defendants were liable in spite of no negligence on their part? Judgement by Exchequer of Pleas: Mellor, J, and a special jury at the Liverpool Assizes initially heard the case, in September 1862, which led to an arbitrator being appointed by the Exchequer of Pleas in December 1864. The arbitrator stated that it was the contractors who were liable for negligence, because they were aware of the existence of the shafts, whereas Rylands had no knowledge of them, thus freeing him of liability. The case was then heard by the Exchequer of Pleas in May 1865, in which it was held that the defendants were not liable. However, there was a dissenting opinion from Bramwell B, who observed that the plaintiff had a right to the enjoyment of his land without any interference, and the water was an interference from the defendants, thus making him liable for the damages. It was the defendants who had caused the water to flow on the land of the plaintiff and had their act not been so, there would have been no discontinuation in the enjoyment of the land by the plaintiff. Appeal to the Court of Exchequer Chamber: Thomas Fletcher then appealed to the Court of Exchequer Chamber, from which the final decision arrived. The decision of the Exchequer of Pleas was overturned, and the case was ruled in Fletcher’s favour. As stated by Blackburn J, who spoke on behalf of all judges, the reality of the rule of law is that a person, who brings or collects on his land anything that is likely to cause mischief in case it escapes, then he must do so at his own peril. Such a person brings that thing on his land for his own purposes, and he, prima facie, is responsible for the consequences that may arrive as a result of the escape of such a thing. There can be exceptions if the escape is due to the plaintiff, or an act of God. But, since there is nothing of this sort that exists here, no excuse from the defendant would be sufficient. The general principle that comes to be just here is that a person who suffers loss because of the actions of his neighbour, whether it be the eating of his corn by the neighbour’s cattle, or the flooding of his mine by the water from the neighbour’s reservoir, or his residence made unhealthy by the fumes and vapours from the neighbouring land, is to be compensated as there is no fault of his own. And the such neighbour is obliged to make good the damage caused to the person whose property is destroyed, in case he is unable to keep the mischief from being caused, even though the thing is harmless if contained in his own property. Exceptions to the Rule of Strict Liability: If the escape was due to the plaintiff’s own actions and the defendant had no role to play in it. If the escape of the thing was due to an act of God. If the escape was due to an irrational or supernatural force, which is similar to an act of God but it takes into account all such events which could not have been apprehended beforehand, or events happening in rare circumstances. If the escape was due to an act of a stranger to the circumstances upon whom the defendant had no control and nor the defendant could have anticipated or controlled the situation created by the stranger Criticism: When the judgement of the Rylands v Fletcher case came out, it faced criticism within England and Wales, along with facing opposition outside. "Rylands v. Fletcher" was criticized by some for several reasons: Unclear Definition of "Unnatural Use": The case established the principle that an individual who makes an "unnatural use" of their land may be strictly liable for harm caused by that use. However, the definition of "unnatural use" was not well-defined, and the courts have struggled to apply it in practice. As a result, the principle has been criticized as being too vague and uncertain. Overly Broad Application: Some critics argue that the principle established in Rylands v. Fletcher has been applied too broadly, leading to strict liability being imposed in cases where it was not intended. This has led to confusion and uncertainty in the law, and has been seen as an unjust outcome in some cases. Conflict with Fault-Based Liability: The principle of strict liability established in Rylands v. Fletcher conflicts with the traditional principle of fault-based liability in tort law. This has led to criticism that the principle is unfair, as it imposes liability without fault, and has the potential to discourage individuals from engaging in lawful activities for fear of being held liable for harm caused by those activities. Lack of Deterrent Effect: Some argue that strict liability does not have the deterrent effect that is often associated with fault-based liability. This is because strict liability imposes liability regardless of fault, and therefore, does not provide a disincentive for individuals to engage in activities that pose a risk of harm. Despite these criticisms, the principle of strict liability established in Rylands v. Fletcher remains an important part of the law of torts, and continues to be applied in a wide range of cases. However, the criticisms of the case highlight the importance of clarifying the definition of "unnatural use" and ensuring that the principle of strict liability is applied in a way that is consistent with the underlying principles of tort law. The American interpretation mainly revolved around the judgement being economically harmful. In Canada, the case of Ernst v. EnCana Corporation was inspired by the rule of Rylands v Fletcher. In Scotland, the principle was applied initially, in the case of Mackintosh v. Mackintosh but it came to an end in RHM Bakeries v. Strathclyde Regional Council. It was disregarded as being a heresy that had to be erased. In India, the rule became ineffective with the onset of time, and the Supreme Court, in M. C. Mehta v. Union of India, evolved the principle of absolute liability, leaving no loopholes to seek big enterprises that caused extensive damage and escape from liability. MC Mehta v. Union of India (1987) and subsequent related cases have helped to resolve some of the criticisms associated with the principle of strict liability established in Rylands v. Fletcher. Clarification of "Unnatural Use": In MC Mehta v Union of India, the Supreme Court of India interpreted the principle of strict liability established in Rylands v. Fletcher to include not only "unnatural use" of land, but also "ultrahazardous" activities that pose a significant risk of harm to others. This clarification of the definition of "unnatural use" has provided greater certainty and clarity in the application of the principle of strict liability. Expansion of Strict Liability: In MC Mehta v Union of India, the Supreme Court of India expanded the scope of strict liability to include not just harm caused by activities on land, but also harm caused by activities in the air and water. This expansion of strict liability has helped to address concerns that the principle established in Rylands v. Fletcher was overly narrow and outdated. Environmental Protection: MC Mehta v Union of India have been significant in the context of environmental protection, as the cases have been used to impose strict liability on polluters and other industries that pose a significant risk of harm to the environment. This has been seen as a positive development, as it has helped to ensure that individuals and businesses are held accountable for the harm that they cause to the environment. MC Mehta vs Union of India, along with related cases, have helped to resolve some of the criticisms associated with the principle of strict liability established in Rylands v. Fletcher. The cases have provided greater clarity and certainty in the definition of "unnatural use" and have expanded the scope of strict liability to include not just harm caused by activities on land, but also harm caused by activities in the air and water. Additionally, the cases have helped to promote environmental protection by imposing strict liability on those who cause harm to the environment.

Sumasri

Sep 16, 2022

How To File A Civil Suit And A Criminal Suit In India

How To File A Civil Suit? Conflicts between individuals or entities, usually involving money, are the focus of civil proceedings. A civil suit begins when a legal person files a "plaint" or a complaint with the court, alleging that he has been harmed or injured as a result of the activities of another person or entity. A civil case must be filed according to a certain procedure outlined in the Code of Civil Procedure, 1908. However, the "registry" can dismiss the suit if the procedure is not followed. "Registry" in this context refers to a department that each court maintains and that disseminates the information or data relating to the court matters/proceedings and other requisite court forms. Step 1 – Drafting Of Plaint The filing of a plaint is the initial step in commencing a civil suit. A plaint is, to put it simply, a formal complaint or allegation made by one party against another. The party who files it is referred to as the Plaintiff and the party it is filed against is referred to as the Defendant. Within the time frame established by the Limitation Act, a plaint must be filed. The following information should be included in a plaint: Name of the Court Name, address, and description of the plaintiff and the defendant Whether the plaintiff or defendant is not an adult i.e., he is a minor or is of unsound mind, a statement to such effect The facts describing the cause of action and when it arose A succinct description of the provisions or orders that invoke the Court's jurisdiction (subject) Plaintiff's Arguments The relief claimed by the plaintiff Confirmation from the plaintiff that the information in the plaint is accurate and true. Additionally, in their case, a plaintiff may also act as their advocate. However, parties decide to hire advocates to defend them in the Court of Law due to their lack of knowledge of technical procedures of the law, and for that purpose, a Vakalatnama is to be submitted along with the plaint thereby authorizing an advocate to represent them before the respective Court, which is explained in Step 2. Step 2 – Drafting A Vakalatnama After drafting the plaint, the plaintiff must give his advocate authorization to take on the opposing party in court via a written document known as the Vakalatnama. A Vakalatnama is a formal letter allowing an advocate to represent a client in court. Vakalatnama is not required when one party is representing themselves in court without the assistance of an advocate. A Vakalatnama may contain the following (not an exhaustive list): The client will not hold the advocate responsible for any decision The client will bear all the costs and/or any expenses incurred during the proceedings The advocate will have the right to retain the documents unless complete fees are paid The client is free to disengage the advocate at any stage of the Proceedings The Advocate shall have all the right to take decisions on his own in the court of Law, during the hearing, in the best interest of the client Step 3 – Filing Of Plaint The next step is to submit or file the plaint before the Chief Ministerial Officer (Sheristadar), and to do so, you must pay the necessary court fees and processing fees. For various types of documents, a different court fee must be paid. A small portion of the overall claim or suit value is used as the court fee. Every civil suit requires a distinct sum of court fees and stamp duty, and the Court Fees Act and Stamp Act make note of this. Step 4 - Accept Or Reject/Dismiss The Plaint If the court decides after the plaintiff has filed his complaint that it does not have the requisite jurisdiction to hear this civil case, the court may return the plaint and notify the plaintiff so that he can file it in the appropriate court that has the correct jurisdiction. The court also has the authority to dismiss the plaint for a variety of reasons, which may include: The cause of the action is not known or clearly defined. The plaintiff does not pay the court fees or the stamp duty. The limitation act bars the plaintiff's complaint from being filed. The remedy sought is fairly valued, but the plaintiff failed to file the complaint within the court's prescribed time frame and the paper on which it is written is not suitably stamped. The plaintiff has requested a remedy that is undervalued and has neglected to update the valuation within the court-imposed timeframe. However, if the Court believes that all requirements have been complied with, it may proceed with the suit by accepting the Plaint. Step 5 - Issuance Or Service Of A Summons The court will serve a summons on the defendant to inform him that a suit has been filed against him, wherein a date is specified for the defendant to appear in court and respond to the allegations in the plaint. The plaintiff must follow the steps to serve the summons, which include: Submitting the fee for the service of summons Submitting 2 copies of plaint for each defendant in the court Attach one copy of plaint with the summons and send by speed post The second copy of the plaint shall be sent by ordinary post. The completion of the procedure of filing the suit is being followed by the stages mentioned below: The appearance of the summoned party and the plaintiff Written Statement Examination of Parties Replication to the Written Statement Framing of Issues When the plaint is presented to the court, the case is set in motion. Subsequently, the written statement is filed by the other party. After that issues are framed. The day on which the issues are framed is termed the day of the “first hearing of the suit”. On the first day of the suit, the court shall ascertain from each party whether he admits or denies the allegation in the plaint. It is after “the first hearing of the suit” from the parties, reading the plaint and the written statement, and ascertaining on what material proposition of fact or law the parties are at variance, that the court frame issues. The right decision in any case dominantly rests on the correctness of the issues framed. If the defendant makes no defense in the first hearing of the suit, there is no need to frame the issues. Issues are framed to avoid surprises in the trial and enable the parties to know what points they need to provide evidence on. Submission of documents Admission or denial of documents Witness hearing and cross-examination Arguments Final Hearing Appeal, Review, and Revision How To File A Criminal Suit? The Code of Criminal Procedure, 1973 ("CrPC") establishes the process for submitting a Report or Complaint, the ensuing trial, and other elements of criminal law related to an investigation, bail, etc. According to India's procedural regulations, it is not required that only the victim of the crime report the incident. Anyone can provide the information to the law enforcement organisation. Regarding the question of who should receive the information report, both the police and the relevant Judicial Magistrate may receive it. Step 1 – Filing a First Information Report (“FIR”) of a cognizable offence Anytime an offence has been committed, the aggrieved party or anybody with knowledge of the offence's commission may go to the police station to have the information recorded and the police officer may record the information if it is a cognizable offence, that is, an offence in which a police officer may arrest an Accused without a warrant. are those offences which are serious. Examples: murder, rape, sexual assault, dowry death, kidnapping, theft, criminal breach of trust, etc. The police officer in charge of the designated police station is required to reduce the abovementioned information in writing in the manner specified by the State Government if the offence is cognizable. Additionally, the said officer must read the complainant the contents of the writing and obtain his or her signature. A First Information Report is the name given to the aforementioned writing that the police officer recorded in the manner specified (FIR), and a copy of the said FIR has to be given to the Complainant. If the complainant is female, only a female officer may take that complainant's statement who has experienced the offence, and other further protective procedures have to also be established as per the CrPC. Step 2 – Investigation By Police The police have the authority to investigate a matter after receiving information of a cognizable offence, even without the magistrate's approval. An appropriate application might be made to the concerned Magistrate if the investigation is not being conducted diligently or without bias. Step 3 - Reporting A Non-Cognizable Offence By Police When a non-cognizable offence is the subject of the information, the officer in charge of the police station where the offence was committed must record the details of the information in a book that the State Government has mandated and recommend the complainant to the magistrate. Non-cognizable are offences wherein a police officer has no authority to investigate without a search order from the Magistrate or even arrest without a warrant and include offences such defamation, bigamy, dishonour of cheques, forgery, public nuisance, etc. After receiving the order of the Magistrate directing the investigation, the officer shall have the same powers of investigation as he has in case of a cognizable offence. The complainant is also authorised to file a private complaint before that Magistrate. Step 4 - Filing A Complaint Before The Magistrate Directly The magistrate who has authority over the alleged offence may also be approached directly by the complainant. The Magistrate will put the complainant and any witnesses in attendance in examination under oath, wherein the statements made are converted to writing, and their signatures are obtained on the document. Before issuing a process against the accused, the Magistrate may in certain circumstances direct further investigation into the matter and only then issue a process against the accused if he believes that an offence has been established. This is a notice that instructs the accused to appear before the Magistrate. Stages Of The Proceedings The Court, before commencing the trial, must ask the accused person whether he wishes to plead guilty or not guilty. The Court may convict the person on his plea of guilty under Section 253, CrPC. This provision has been inserted into the Criminal Law regime so the speedy delivery of justice can be made effective. If the accused person pleads not guilty, the trial goes forward. The prosecution is required to prove the guilt of the accused through the examination of witnesses and documentary evidence. It involves the Examination of the Chief, Cross-examination, and re-examination. This whole cycle is known as ‘examination-in-chief’. After this, the Court records the statement of the accused person under Section 313 of the CrPC. The accused is given the opportunity of being heard and explain the facts and circumstances of the case. The defence is then, asked to present any evidence before the Court that may support the acquittal of the accused person. Usually, the burden of proof is on the prosecution, the defence is rarely asked to present evidence before the Court. After examining all the evidence and other relevant facts and circumstances, the court decides upon what questions are to be addressed during the final arguments of the case. The Public Prosecutor and the Defence Counsel both present their arguments to the Court on the disputed issues. After hearing final arguments from both sides, the Court has to deliver judgment addressing if the accused is convicted or acquitted, the quantum of punishment if convicted, grounds of conviction/acquittal, etc. The Judgment must be clear and precise. It should state the facts of the case, arguments presented by the Counsel from both sides, acquittal/conviction of the accused, and grounds for the same. After the judgment is delivered by the Court, the aggrieved party may file for an appeal. Before the appellate court, arguments of both sides are placed. The Appellate Court, then decides if the judgment rendered by the subordinate court had any merits or not. The aggrieved party may alternatively file a Revision petition to prevent a faulty judgment from being enforced. The last stage is the execution of the orders of the Court. The stage of execution is when all the remedies of appeal, revision, etc. are exhausted and the decision is final. Whether A Civil Suit And A Criminal Suit Can Be Initiated Simultaneously? Both civil and criminal proceedings can be initiated by the plaintiff or complainant simultaneously. The Supreme Court in the case of P. Swaroopa Rani vs. M. Hari Narayana, AIR 2008 SC 1884 held that: “It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall stay depends upon the fact and circumstances of each case.” A criminal case may be initiated and the accused may be brought to justice for offences that violate a person's property rights, particularly offences such as theft, criminal breach of trust, cheating, and property disposition. Simultaneously, a civil suit can be initiated in these types of situations to seek damages for lost money, recovery of property, etc. There is no set rule addressing whether criminal or civil actions should be given more weight depending on the facts and circumstances of the case.

Sumasri

Jun 03, 2022

Johnny Depp and Amber Heard Defamation Trial

On Wednesday, June 1, the Pirates of the Caribbean actor, Johnny Depp won his defamation trial against his former wife Amber Heard. The explosive celebrity defamation trial has become a media sensation. Depp was awarded $15 million in damages, including $5 million in punitive damages, which the judge capped to $350,000, the legal limit in Virginia. In total, he is entitled to $10.35 million. The jury awarded Heard $2 million, with the finding that a former Depp attorney, Adam Waldman, had defamed her. Let us read how this multi-million dollar defamation case unfolded. The London Trial In 2020, Johnny Depp lost his U.K court case after a judge, in the absence of a jury, concluded that Depp assaulted his ex-wife Amber Heard on a dozen occasions. The libel case at London court began in 2018, centred around an article in one of U.K’s biggest tabloids, “The Sun”, which claimed Johnny Depp was a “wife beater”. Depp sued both the Publisher and The Sun’s executive director Dan Wotton for libel. After a three-week trial, Justice Andrew Nicol ruled against Depp in 2020, saying that the British newspaper had presented substantial evidence to show that Depp had been violent against Heard. Depp and his legal team tried to get the ruling overturned with an appeal but Judge Nicol refused to grant Depp the permission to appeal against his judgement stating that proposed grounds do not have a reasonable prospect of success. The judge also ordered Depp to make an initial payment of $841,733 to The Sun, to cover its legal fees. The Virginia Trial The trial in Virginia has covered the same ground. Depp and Heard’s defamation lawsuit began on 11 April 2022. Depp’s suit against Heard alleges that she defamed him, in December 2018, by writing an op-ed in The Washington Post claiming to be a survivor of domestic sexual violence. The trial took place in Fairfax County courthouse which is located in Virginia, US. Depp sued her in that area as the online edition of The Washington Post is published via servers in the County. However, Heard’s attorneys tried to move the trial to California but the major reason for Depp’s attorney to sue in Virginia was because of the State’s anti-SLAPP legislation, which is not as wide-ranging as in California. SLAPP stands for Strategic Lawsuits Against Public Participation. Anti-SLAPP laws are intended to prevent people from using courts and the potential threat of a lawsuit, to intimidate people who are exercising their first amendment rights. Also, the presence of a jury which was absent in the U.K. is a strong reason for Depp suing his ex-wife in the US. While Johnny Depp wasn’t directly named in the newspaper article, the jury found that it contains clear implication by Amber Heard that he is a domestic abuser. He sued Heard seeking damages not less than $50 million for the false allegation, on the other hand Heard filed a counterclaim against Depp of $100 million for nuisance and immunity from his allegations. Contentions of the Parties Heard’s lawyer, J. Benjamin Rottenborn claimed that this lawsuit is centred around the question of whether Heard was exercising her First Amendment right to free speech by writing a statement for The Washington Post about her experience with domestic violence. On the other hand, Depp’s lawyer Benjamin Chew accused Heard of ruining Depp’s career, resulting in him being alienated from producers who once favoured the movie star. On 20 April 2022, Depp on his first stand testified that the real abuser in their relationship was his ex-wife Amber Heard, stating that her verbal attacks would turn into violence. Attorneys for Depp laid out evidence of Heard’s alleged abuse while Heard’s lawyers focused on Depp’s past drug and alcohol use. Depp stated that while he was filming his movie franchise “Pirates of the Caribbean” in Australia in 2015, he would lock himself up in the bathroom to avoid having a physical altercation over instigated verbal attacks by Heard. During that argument Depp said a large bottle of vodka was thrown at him by Heard, which made contact with his hand, slicing off his middle finger. Depp also testified that in a fight in 2016, Heard was responsible for faecal matter found on their shared bed after Depp threatened to end their marriage. When Depp and Heard reached a divorce settlement in 2016, Heard announced that she would donate her entire $7 million settlement money to two charity organisations, i.e, American Civil Liberties Union and Children’s Hospital Los Angeles. However, the organisation testified that only one instalment was transferred by Amber Heard directly. It was also alleged that an amount was also transferred from the bank account of Elon Musk in the name of Heard. Amber Heard took her first stand on 4 May 2022, when she stated that to her surprise, Depp slapped her three times during a conversation about his tattoo. This was the first time she got hit by him to which the actress was in shock and did not know how to respond. Heard testified that in March 2013, after consuming a large amount of cocaine and hard liquor, Depp grabbed one of her pet dogs and held it out of a moving car window which created discomfort and showed cruelty towards the animal. She also alleged that in the same year, Depp did a cavity search on her while looking for his cocaine. According to her, Depp was harming himself by cutting his arms during fights by the end of 2016. Heard on her stand painted a picture of a man who oscillated between active addiction and sobriety, which made it hard for her to continue the relationship. Depp’s team leaned on the difference between Depp’s and Heard’s history. While previously, Depp had been accused of property damage and verbal threats, he had never been accused of the kind of violence that is claimed by Heard. However, Heard has some minor accusations of violence to account for, focusing on a 2009 incident where Heard had a verbal fight with Depp’s then-girlfriend, that turned into violence from the side of Heard. Laurel Anderson, a marriage counsellor who counselled Depp and Heard during their marriage, also testified at the Fairfax trial. She considered their marriage as a dynamic one because of ‘mutual abuse’. Anderson testified that she saw Heard bruised after altercations with Depp, and that Heard told her she had initiated physical fights with Depp on multiple occasions. She said she believed, but was not certain, that Depp had also initiated physical fights with Heard. Both Depp and Heard have said that they experienced physical abuse as children, and Anderson’s theory is that their relationship pushed them back into toxic childhood patterns, with each abusing the other and neither one ultimately more responsible than the other. On 24 May 2022 Heard’s team rested its case, while Depp’s team requested the Circuit Court Judge Penny Azcarate to dismiss Heard’s countersuit, which was held rejected. On 25 and 26 May both Depp and Heard returned to the stand respectively, before closing arguments, expressing their disappointment and grief against one another’s acquisitions. On 27 May the jury heard closing arguments and started deliberating. The Verdict The jury comprised of seven members and two alternates reached a verdict on 1 June 2022. Unanimously the jury favoured Depp and found that Heard had defamed him. The jury awarded $5 million to Depp in punitive damages and $10 million in compensatory damages. Jurors also concluded that part of Heard’s counterclaim had merits. They rejected two of Heard’s three counts but found she was defamed by Depp's lawyer who had used foul language against her, and hence the jury awarded her $2 million. The jurors’ first count was against Heard considering that she made or published the article in The Washington Post against Depp, knowing that it would be defamatory for him. The jurors’ second count against Heard was based on the defamatory statement in The Post: “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out”, which clearly indicated Depp being an abuser without any evidence. As with the other two counts, in the third count against Heard, the jurors found Heard had defamed Depp with “actual malice” as there was clear and convincing evidence that Heard either knew the article she made in The Washington Post in 2018 was false or acted with reckless disregard for the truth. Heard levied three counts of defamation against Depp, saying she’d been repeatedly defamed by his former attorney Adam Waldman, who called Heard’s abuse allegations a hoax. Jurors considered a statement from Waldman that appeared on The Daily Mail’s website on 8 April 2020, in which Adam Waldman stated that Amber Heard and her friends in the media use fake sexual-violence allegations against Depp to ruin his public image. However, in the first count against Depp, the jurors concluded that Heard’s attorney has not proven all the elements of defamation. Heard scored her only victory over a statement Waldman gave to The Daily Mail in the same 2020 article. He accused Heard and her friends of fabricating abuse allegations. Hence for the second count against Depp, the jurors agreed with Heard’s attorneys that Waldman’s statement was false and defamatory and that he’d acted with actual malice. The final count against Waldman involved a statement from the same article: “We have reached the beginning of the end of Ms. Heard’s abuse hoax against Johnny Depp.” Jurors concluded Heard’s lawyers had not proven the statement to be defamatory.

Priyanka Mangaraj

May 30, 2022

Donoghue v. Stevenson - Case Brief

Citation - [1932] A.C. 562, [1932] UKHL 100, 1932 S.C. (H.L.) 31, 1932 S.L.T. 317, [1932] W.N. 139 Donoghue v. Stevenson, a Scottish dispute, is a famous case in English law that was instrumental in shaping the law of tort and introduced the doctrine of negligence. It is a landmark case in tort law. The wider importance of the case is that it established the general principle of the duty of care concept in law. The test was formulated by Lord Atkin and it is generally referred to as the “neighbour test” or “neighbour principle”. Donoghue v. Stevenson, also known as the "Paisley snail case," is a landmark legal case that was heard in the House of Lords in 1932 and is considered a key case in the development of the law of negligence in the United Kingdom. Facts On August 26, 1928, Mrs. Donoghue’s (Plaintiff) friend bought her a ginger beer. She consumed about half of the bottle, which was made of dark opaque glass when the remainder of the contents was poured into a tumbler. At this point, the decomposed remains of a snail floated out causing her alleged shock and severe gastroenteritis. Mrs. Donoghue was not able to claim through breach of warranty of a contract as she was not a party to any contract. Therefore, she issued proceedings against Stevenson, the manufacturer (Defendant) which snaked its way up to the House of Lords. Issue Does a manufacturer of ginger beer bottles owe a duty of care to the end consumer while he didn’t directly sell it to him, but only via a distributor? Judgement Donoghue argued that Stevenson owed a duty of care to his customers who were to consume his ginger beer, to have an effective system to clean his bottle and keep it away from snails. Stevenson denied having snails in any of his bottles, arguing that Donoghue’s health problems had been caused by her own bad health conditions. He stated that the facts were not proved, he did not cause Donoghue any harm, and that the damages claimed were excessive. The matter was first heard in the Outer House of the Court of Sessions before Lord Moncrieff. Here, the owner of the café was added as a defendant but later dropped him because of his lack of contractual relationship with Donoghue, as the ginger beer was purchased by her friend and the fact that the owner of the cafe could not have possibly examined the content of the bottle. Lord Moncrieff, dismissed the argument and case law that required that there must be a contractual relationship between the parties before liability can be incurred for negligence in preparing goods for consumption. He described the principle as narrow. Stevenson appealed to the Inner House of the Court of Sessions which was presided over by four judges who had heard the case of Mullen v AG Barr & Co Ltd where it was held that no duty of care could arise in the absence of a contractual relationship. Thus, the appeal was allowed by the majority of the judges while Lord Hunter dissented again. Donoghue appealed to the House of Lords. The judges who heard her appeal were Lord Atkin, Lord Thankerton, Lord Tomlin, Lord Buckmaster, and Lord MacMillan. Donoghue’s Counsel argued that Stevenson owed a duty of care that was independent of contract because the bottles in which the ginger beers come in could not be examined and also because it was meant for human consumption. Stevenson’s Counsel argued that it was an established law in England and Scotland that no duty was owed by manufacturers to anybody with whom they had no direct contract. They argued that the exceptions which were created in English and Scottish laws were not present in this case; that is, that the ginger beer was not intrinsically dangerous and that the defendant, Stevenson, was not aware that the product was dangerous. The House of Lords held in favour of Donoghue, albeit, not unanimously. According to Lord Atkin, the case was an important one because of the bearing the decision on it would have on public health. To him, the moral rule that requires one to love their neighbour, or in-law, manifests as the rule that one has to take care not to injure his neighbour. He says that care must be taken, and such care must be reasonable, in order not to put one’s neighbour in danger or cause one’s neighbour an injury that is foreseeable. He defined a neighbour as one who will be directly affected by one’s action or omission so much so that one has to put such a person in his contemplation while he does such action or makes such omission. Impact: The case of Donoghue v. Stevenson has had a significant impact on the law of negligence in the UK and other common law jurisdictions. The case established the duty of care that manufacturers owe to consumers and set a standard for the level of care that a manufacturer must take to ensure the safety of his products. The case also confirmed the principle that a manufacturer could be held liable for harm caused by a defect in his product, even if the defect was not known to him at the time of manufacture. In conclusion, Donoghue v. Stevenson is a landmark case in the development of the law of negligence in the UK, and its impact has been felt in the UK and other common law jurisdictions. The case has established the principle that a manufacturer must take reasonable care to ensure that his products are safe for consumers to use, and has set a standard for the level of care that a manufacturer must take to fulfill that duty.

Gaurav

Feb 08, 2022

Defamation in the Cyberspace: Lack of Data Protection Act in India

Introduction An individual’s access to the internet has a major impact on day-to-day life. Human interaction has never been simpler because of the platform given by the internet. The Internet is a low-cost, high-speed medium of communication all over the world. However, as communication has become more convenient, the inconvenience caused by the misuse of communication channels has grown accordingly. People who publish deceiving facts about a person or an entity, damaging their goodwill and reputation in society, have unrestricted powers to a greater extent on social media because limitations to freedom of engagement have been removed. Popularly referred to as "trolls" informally, such behavior constitutes cyber defamation. What is Cyber Defamation and how it is different from Physical Defamation? Section 499 of the Indian Penal Code defines defamation as whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person is said to defame that person. Defamation can be categorized into two categories, namely, "slander" and "libel." Slander is defined as "destroying someone's reputation through a false spoken statement”, whereas "Libel" is defined as "false published or written statement causing harm to someone's reputation." However, a mere criticized statement does not amount to defamation. If it does not hold any constructive comment then the publication of such a statement is a prerequisite to establishing defamation. Similarly, any act of defamation that occurs in cyberspace is referred to as cyber defamation or online defamation. When an internet device is used as a tool or medium to deceive or misguide an individual or organization's public image on social networking sites such as Facebook, Twitter, etc, then it is known as cyber defamation. Due to widespread of the reach of these social media sites, the level of harm can be vigorous. Defamation is both a civil and a criminal offense in India, where due to lack of specific data protection act, the related provisions are mentioned in the Information Technology Act, 2000. According to the Information Technology Act, 2000, such an offense must include the usage of electronic equipment. The defamation through online medium falls into the category of libel as the electronic records are designated as documents whether it may be in the form of written text, audio, or video files. The Delhi High Court observed in the case of Dharambir v. CBI (2011) that "given the wide definition of the words documents and evidence in the amended section 3 of the Evidence Act, 1872 to be read with section 2 (o) & (t) IT Act 2000, there can be no doubt that an electronic record is a document," and the Supreme Court in 2019 stated in the case of P. Gopalkrishnan v. State of Kerala that "there can be no doubt that an electronic record is a document" In such a case, the appropriate step is twofold: first, to initiate a proceeding for tracing the identity, and second, to initiate a proceeding for criminal or civil defamation, they can be done separately or concurrently, implying that the appropriate step is to locate the identity first, and then to initiate the criminal or civil proceeding. Asia’s First Case of Cyber Defamation: SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra Asia’s first case of cyber defamation was filed in India where the Delhi High Court took jurisdiction the case in which a company's reputation was being slandered through emails and issued a significant ex-parte injunction. In this case, the defendant Jogesh Kwatra, who worked for the plaintiff company, began sending derogatory, defamatory, obscene, vulgar, filthy, and abusive emails to his employers as well as to various subsidiaries of the said company around the world in order to defame the company and its Managing Director Mr. R K Malhotra. The plaintiff company filed a lawsuit seeking a permanent injunction to prevent the defendant from sending insulting emails to the employees of the plaintiff. It was argued on behalf of the plaintiffs that the defendant's emails were clearly obscene, vulgar, abusive, frightening, humiliating, and defamatory. Plaintiff’s counsel stated that the purpose of sending the emails was to defame the plaintiffs' reputation in the market both nationally and internationally. The defendant's actions invoked the plaintiffs' legal rights. Furthermore, the defendant had a legal obligation towards the plaintiff not to transmit the aforementioned communications. The plaintiff company terminated the defendant's employment after discovering the abusive emails sent by the defendant. After hearing the plaintiff's extensive arguments, the Hon'ble Judge of the Delhi High Court issued an ex-parte ad interim injunction, stating that the plaintiff had shown a prima facie case. As a result, the Delhi High Court barred the defendant from sending defamatory, obscene, vulgar, humiliating, or abusive emails to the plaintiff’s company or it’s subsidiaries outside the country. Furthermore, the defendant was barred from publishing, sending, or causing to be published any material that is disparaging, defamatory, or abusive to the plaintiffs, both in the real world and in cyberspace. Comparative analysis on cyber laws from an international perspective: Developing countries like India are progressing in many sectors, but have a slow growth rate in the cyber sector. Developed countries such as the United Kingdom and the United States, on the other hand, are significantly more advanced in the cyber domain. The United Kingdom has strong cybercrime legislation under the Computer Misuse Act, 1990, consisting of strategic legal protection for their netizens, whereas the United States check cyber crimes under the Computer Fraud and Abuse Act, 1986. India has the Information Technology Act, 2000, which was last amended in 2008, protects individuals from cyber-related offenses. Technological advancements have reached a high peak but still, India is lacking to create specific legislation aligned with international standards of data protection against cybercrimes. Lack of data protection provisions also hampers the multinational businesses as the partners hesitate to share their trade secrets with no strong guarantee of protection. The United Kingdom is more feasible to multi-partner contributions to limit its policies, but India's cybersecurity is still divided between private and government activities, with an emphasis on national security challenges. One significant distinction is observed that the developing nations consider each defamation publication to be filed in a separate lawsuit, allowing defamation on the internet to be punished in the country where it was read particularly, although American law only permits one claim for the main publication. In India, if someone has defamed you on the internet, you have several legal options available to you. These include: Filing a complaint with the cybercrime cell of the police Sending a legal notice to the person responsible for the defamatory statement, demanding an apology and retraction Filing a civil lawsuit for damages in a competent court Seeking an injunction to prevent further publication of the defamatory statement It is recommended to consult a lawyer to understand the specific laws and procedures that apply in your case. To file a complaint with the cybercrime cell of the police in India, you can follow these steps: Gather evidence: Collect all relevant evidence of the defamatory statement, including screenshots, URLs, and any other supporting documents. Visit the nearest police station: Go to the nearest police station and inform the duty officer about the incident. They will direct you to the cybercrime cell. File a complaint: Fill out a written complaint and provide all relevant information and evidence. Provide identification: Present a government-issued photo ID, such as a passport or Aadhaar card, for identification purposes. File an FIR: The police will register an FIR (First Information Report) based on your complaint. Follow up: After filing the complaint, follow up with the police regularly to inquire about the status of the case. Note: The specific procedures and requirements for filing a complaint with the cybercrime cell may vary depending on local laws and regulations. It is advisable to consult a lawyer for legal guidance. Conclusion The ease of communication has greatly improved with the introduction of the internet age. However, there are always pros and cons of such conveniences. Due to the ease of transferring data and information through the internet, it has become a significant hotspot for defamation. Despite the fact that there are laws prohibiting people from publishing defamatory information online, most people are unaware of these regulations or are too careless to recognize whether such content is defamatory or not. Apart from the strong data protection laws, the Government shall also institute cyber cells with experts who can tackle the new age of cybercrimes. In this digital era, when free speech disrupts a person's reputation, it is necessary for the legal system to create a limit, preventing it to become a weapon in the hands of offenders. Legislation that teaches and informs users on what to do and what not to do, what is wrong and what is right, and what is defamatory and what is not defamatory in cyberspace is urgently needed. Furthermore, the intermediaries responsible for the open platforms should monitor the content on their social media and take necessary action against the offenders, thus creating awareness amongst the netizens. References Defamation in Cyber Space (legalservicesindia.com) What is Cyber Defamation? - LawLex.Org REVISITING CYBER DEFAMATION LAWS IN INDIA & COMPARISON WITH ENGLISH LAW - The Daily Guardian Cybercrimes against children grew 260% in 2020, data shared with Parliament shows (careers360.com) Defamation On Social Media- What Can You Do About It? - Litigation, Mediation & Arbitration - India (mondaq.com) Author Satyam Malakar BA LLB (Hons), 2nd year NMIMS, School of Law, Mumbai

Satyam Malakar

Dec 10, 2020

Digital Repository of all Central and State Acts

INDIACODE: Click Here This is the best place to find all Enforced Central and State Acts linked with Subordinate Data like Rules, Regulations, Notifications,Orders, Circulars, Ordinances, Statutes. The site allows you to go through a list of items in some specified order. One can browse by Community and Collection, Short title, Act number, Act year, Ministry etc UserGuide to help navigate site and use the search engine: https://www.indiacode.nic.in/help/userGuide.pdf

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