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This article is written by Kalyani Gupta, a Master’s in Law student from Amity University, Noida. This commentary discusses in brief about the case Excel Corp Care Ltd. v. CCI.

Citation

(2017) 8 SCC 47

Equivalent Citation

AIR 2017 SC 2734

Petitioner

Excel Crop Care ltd.

Respondent

Competition Commission of India

Date of Judgement

08/05/2017

Bench

A.K. Sikri, N.V. Ramana

INTRODUCTION

The Supreme Court, in this case of “Excel Crop Care Limited vs. Competition Commission of India and Another” dated May 8, 2017 held that the punishment to be enforced on enterprises engaged in anti-competitive methods should be assessed on the base of ‘relevant turnover’ of the business and not the ‘total turnover’.

Facts of the Case

‘Food Corporation of India’ offered a letter to the Competition Commission of India dated February 4, 2011 claiming implementation of anti-competitive agreements amongst four companies –

M/s. Excel Crop Care Limited
M/s. United Phosphorus Limited
M/s. Sandhya Organics Chemicals (P) Ltd
M/s Agrosynth Chemicals Limited

These enterprises were engaged in the production of Aluminium Phosphide Tablets and were claimed to have established an alliance by joining into an anti-competitive agreement between themselves. On acceptance of such a complaint by Competition Commission of India, an investigation was performed by the Director General of Competition Commission of India who initiated that since 2002 to 2009, these companies had been presenting their tenders by citing matching rates in the proposals asked by the Food Corporation of India for the acquisition of APT. The statement of the Director General of Competition Commission of India discovered these enterprises to be in breach of section 3(3) of the Competition Act, 2002 which forbids anti-competitive agreement. On the base of the report of the Director General of Competition Commission of India, and complaints recorded by the four companies, the Competition Commission of India established vide order dated April 23, 2012 that M/s. Excel Crop Care Limited, M/s. United Phosphorus Limited, M/s. Sandhya Organics Chemicals (P) Ltd had breached section 3 of the Act and consequently, enforced punishment on them at the rate of 9% on the average aggregate turnover of these institutions for the past three years, under section 27 (b) of the Act.

The appellants recorded appeals alongside the order of Competition Commission of India at COMPAT (Competition Appellate Tribunal). COMPAT found the appellants to be offensive of section 3 of the Act. Though, the COMPAT held that whilst evaluating burden of penalty under section 27(b) on multi product enterprises, only ‘relevant turnover’ should be deemed and not ‘total turnover’. Appropriate turnover implies to the turnover in relation to the product in question in regard to which terms of the Act were breached although total turnover implies to the whole turnover of the wrong person or enterprise including all the products. Subsequently, the appellants approached the Supreme Court of India demanding it to proclaim the outcomes of COMPAT as untenable and to set separately the punishment levied on them. The CCI also recorded an appeal to the Supreme Court to set away that element of the requisition of COMPAT in which it held that punishment upon providers should be confined to appropriate turnover and not the overall turnover.

Issue

Section 27(b) of the Act authorizes the Competition Commission of India to enforce punishment on individuals or companies in violation of Section 3 or 4 of the Act to the possibility as it deliberates suitable but not greater than 10% of the average of the turnover for the preceding three monetary years. The matter in front of the court was whether ‘turnover’ as occurring under Section 27 of the Act intended to describe ‘relevant turnover’ or ‘total turnover’. Another issue that came up before the Court was whether the Competition Commission of India had jurisdiction to conduct investigation regarding a tender offer that was proposed by the parties before the commencement of Section 3 of the Act. Section 3 of the Act came into operation on May 20, 2009.

Judgment

Issue of determination of turnover:

“The concept of ‘turnover’ for multiproduct enterprises”: When a multiproduct company has penetrated into an anti-competitive agreement and such an agreement may be in regard to a single product. Hence, inflicting punishment on the total turnover of such business would bring out unjust results. Such unfair or absurd outcomes are to be avoided. When an agreement which is in contravention of Section 3 requires one product, there appears to be no explanation for involving other products of a business for the objective of enforcing penalty. Therefore, the turnover ought to be of the violating or infringing product.

“The doctrine of proportionality”: The Supreme Court of India applied the ‘doctrine of proportionality’ to foray a stability between the object of the Act to stop anti-competitive practices and the right of the person infringing in not suffering the penalty which may be unequal to the significance of the Act. The Act seeks to punish offenders of the Act. Though, the Court held that the punishment should not be unbalanced, and lawbreakers should be appropriately punished.

“The doctrine of purposive interpretation”: The Supreme Court of India used the doctrine of ‘purposive interpretation’ to state that there was a legislative connection amongst the damage instigated and the revenues which accumulated from the cartel activity. The Court also stated that there had to be a link between the type of offence and the benefit obtained from such crime. Hence, keeping in mind this kind of co-relation, the concerned turnover, i.e., ‘relevant turnover’ turns into a yardstick for levying a punishment.

“Calculation of Penalty”: The Supreme Court depended on several principles to ascertain the requirement of using ‘relevant turnover’ to evaluate the punishment of criminal organizations. In continuation of this, the Court also placed down a two-step test to determine the punishment under section 27 of the Act.

Step 1:

“Determination of relevant turnover”: Appropriate turnover has been taken to be the entity’s turnover relating to products and services that have been influenced by such violation. The Court held that while evaluating the punishment to be levied on an offender, the evaluating authority should have regard to the entity’s audited financial reports, and in the absence of such statements, appropriate records reflecting the company’s pertinent turnover or estimation of relevant turnover may be taken into consideration.

Step2:

“Determination of appropriate percentage of penalty based on aggravating and mitigating circumstances”: Aspects that are to be taken into consideration while imposing suitable fraction of penalty comprises of

Nature
Gravity
Scope of the violation
Role performed by the infringer
The extent and intensity of involvement
Loss or harm suffered because of such violation
Market conditions in which the violation took place
Nature of the product

Though, such punishment would not be more than the total cap of 10% of the entity’s relevant turnover. In view of the above principles, the Supreme Court upheld the penalty enforced on the petitioners as determined by COMPAT on the basis of appropriate turnover of the companies.

Issue of CCI to conduct inquiry for tender prior to commencement of the Section 3: The Supreme Court held that the investigation led by Competition Commission of India into the tender of March 2009 was enclosed by Section 3 of the Act as the tender procedure, though started on the preceding date when Section 3 became operational, continual beyond May 20, 2009, the date on which the requirements of Section 3 of the Act were imposed.

Takeaway: The judgment from the apex court of the country stated that to decide punishment based on appropriate turnover of companies has set a historic precedent for the Competition Commission of India and COMPAT to determine punishment of lawbreaker’s hereafter. Not only the vagueness of the term ‘turnover’ has been made to imply relevant turnover, but the Supreme Court has also given an instructive list of aspects to be considered while deciding the proportion of penalty. Enterprises have been saved from being enforced excessively high amounts of fine which would have been unequal to their offence. Though, it is to be noted that businesses which have grown high amounts of revenues by arriving at cartels may still stand the chance of being forced higher penalties because proviso of section 27(b) of the Act empowers Competition Commission of India to levy a penalty of up to ‘three times the profit of the company’ if it is higher than 10% of the turnover of the company.

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This Case Brief is written by K. Lasya Charitha pursuing BALLB in Damodaram Sanjivayya National Law University, Visakhapatnam.

Case Number

WP (C) No. 24258 of 2007(K)

Equivalent Citation

2008 Cri LJ 455, 2008 (1) KLJ 9

Bench

Hon’ble Justice J.B. Koshy and Hon’ble Justice K. Hema, JJ.

Decided On

20^th September 2007

Relevant Act/ Section

Code of Criminal Procedure, 1973 – Section 173(8)
Code of Criminal Procedure, 1973 – Section 319
High Court Act 1958 (Kerala Act 5 of 1959) – Section 3

Brief Facts and Procedural History

September 27, 2005: The deceased Udayakumar was arrested together with Suresh Kumar under charges of theft in a nearby park at 1.30 pm. Defendants Jitakumar and Srikumar are all police officers attached to the fort. , Thiruvananthapuram in Crime Squad. From around 2 pm Since then, Suresh Kumar and Udayakumar have been brutally tortured, and which they know that it would lead to the death of Udayakumar by three constables from the fort police station. At 10:20 pm, Udaykumar was transferred from the police station to the Thiruvananthapuram Medical College Hospital. At 11:30 pm, a doctor at the Hospital of the University of Thiruvananthapuram School of Medicine announced Udayakumar’s death. The investigation was carried out by the local police and these accused police officers and was charged with crimes under Section 302 read with 34 of the Indian Penal Code. The trial began, and several prosecutor’s witnesses were questioned and many of them turned hostile to the accused officers. A motion for further investigation of the case was filed. During the investigation, the trial court by invoking its power under Section 319 had arrayed a police constable as the 4th accused. The 4th accused challenged this in a Criminal Revision. The mother of Udayakumar who died as a result of police torture filed a writ petition, demanding the further investigation of CBI, and disciplinary action and perjury against the police who turned hostile during the trial.

Issues before the Court

Whether a Trial Court or Magistrate’s Court can entrust the further investigation to CBI, in a case where the investigation is being conducted by the State Police?
Whether further investigation of a case can be conducted even though the trial has started?
Whether the Court can array further accused as parties or frame additional charge after investigation if necessary?

Ratio of the Case

The ratio decidendi of the above case is that the power of the police to conduct other investigations under Sections 173(8) should never interfere with the power of the High Court and the Supreme Court to direct special investigation agencies to conduct investigations when circumstances warrant. Inherent powers of the courts to meet the ends of Justice are protected by Section 482 of the Criminal Procedure Law. According to Article 226 of the Constitution of India, the court’s power also enables the court to order the specific circumstances of individual cases to be further investigated by special investigative agencies to avoid injustice.

If an erroneous investigation is found in the proceedings, further investigation can correct the error if circumstances permit. It is better for the police to notify the court and request formal authorization for further investigation when new facts come into light instead of remaining silent, consider only the necessity of an early trial, because the effective prosecution of actual crimes through appropriate investigations is very relevant, desirable, and a necessary step to speed up processing resolution of the case by the courts.

The newly found accused should be given ample opportunity to file a lawsuit, and if necessary, witnesses who have already been interviewed can be examined by exercising the powers of Section 217 of the Criminal Procedure Law. Under Section 319 of the Code of Criminal Procedure, the court has the right to add any accused after the proceedings begin.

Decision of the Court

In this application, the court does not consider whether he can be convicted of perjury or whether he can deliberately hunt down the applicant or other policemen who have been declared hostile. For a perjury decision, the court left the matter to the concerned department and authority to consider disciplinary action and proceed before the competent court. After reviewing the evidence contained in the record, Judged has concluded that the court has been acquitted based on the evidence submitted to the petitioner for review when he was designated as the accused. The court believes that the ruling approved under Article 319 has no weaknesses.

The Writ petition was disposed of on the grounds that the High Court and Apex Court can allow further investigation of a case to a specialized agency like the CBI if the circumstances so warrant. The court has concluded that the case is appropriate because the police were charged with involvement in the case, further investigation should be conducted. Based on the available information, the court believes that in this case, police officers are more interested to defend the accused in accordance with the law, and refrain from performing judicial trials or conducting appropriate investigations. Although there is no need to suspend pending procedures in any case where an investigation of the CBI is ordered, in essence, it is necessary to initiate additional procedures in the court of the first instance only after the CBI has submitted a supplementary report. This is a suitable case to resolve the issue and the court directed the CBI to conduct further investigation.

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This article is authored by Sanskriti Goel, a 1st-year law student from Chanderprabhu Jain College of Higher Studies and School of law, GGSIPU. The article discusses various laws which aim at protecting whistleblowers against victimization in India. The article also critically analysis the practicality of such laws.

“Our nation is strengthened, not weakened, by those whistleblowers who are courageous enough to speak out on violations of the law.”

—Anonymous

INTRODUCTION

There are two kinds of whistleblowers. First, an internal whistleblower, who reports the wrongdoings to the senior authority of the organisation. Second, an external whistleblower, who reports the misconduct to someone outside the organisation such as a higher government authority or media.

As per a news article published in the Times of India, a whistleblower officer of the horticulture department was suspended as he called out a senior official for being a ‘covid-carrier’. The senior was purportedly flouting social-distancing norms after testing positive. The suspended officer has been earlier suspended twice for whistleblowing against numerous scams of the department. This incident is not one of its kind. In many instances, it is observed that employees usually deter from informing about corrupt practices due to fear of suspension or even termination in some cases.

With the intent to protect the interest of whistleblowers, the Indian Parliament enacted The Whistle Blowers Protection Act, 2014, but the Act is yet to be operationalised in India. The Whistle Blowers Protection (Amendment) Bill, 2015 (hereinafter ‘Amendment Bill’) has been passed by the Lok Sabha which aims to amend the aforementioned Act to prohibit disclosures that may prejudicially affect the sovereignty and integrity, security and strategic, scientific or economic interest of India, etc. However, the Amendment Bill was not passed by the Rajya Sabha and hence lapsed. Moreover, The Companies Act, 2013 and the Securities and Exchange Board of India (hereinafter ‘SEBI’) both lay down a certain set of rules for whistleblowing policy in public limited companies.

The Whistle Blowers Protection Act, 2014

Objectives of the Act are as follows:

To establish a complaint mechanism system so as to provide a trustworthy platform for registration of disclosures relating to acts of corruption, wilful misuse of power, or wilful misuse of discretion;
To inquiry into any such disclosures; and
To provide an appropriate safeguard against victimisation of complainants.

Section 2 of the Act states that the provisions mentioned under this Act do not apply to the armed forces as they are protected under Special Protection Group Act, 1988.

The Act requires the complainant to make disclosures to a ‘Competent Authority’. Section 3 specifies the Competent Authority for each category of public servants. As per this section, it would be the Prime Minister for any Union Minister, the Chief Minister of state or union territory for any State Minister, the High Court for district court judges and arbitrators, the Central or State Vigilance Commission for government officials.

Section 4 states that any public servant or any other person from any non-governmental organisation can make a public interest disclosure before the Competent Authority. Earlier, the Act also stated that disclosures can be made even if they are prohibited under the Official Secrets Act, 1923 which prohibits disclosures relating to national security. But the Amendment Bill aims to amend this provision under Section 4 of the Whistle Blowers Protection Act, 2014 and forbids any disclosures prohibited under the Official Secrets Act, 1923.

The Companies Act, 2013

The Companies Act, 2013, and rules thereunder, provide that listed companies should establish a ‘vigil mechanism’ to report concerns relating to unethical behaviour, fraud, violation of the Codes of Conduct, etc. Further, the Act requires such companies to specify the details of the aforementioned mechanism on their websites. Such companies are also required to provide appropriate safeguards against victimisation of whistleblowers.

SEBI

SEBI has instructed all the listed companies to adopt a whistleblower policy. Such companies are also required to make their employees aware of the policy so adopted to enable employees to report instances of insider trading. Recently, SEBI has also initiated a ‘reward mechanism’ under which it would reward whistleblowers for informing of insider trading.

Law Applicable to Private Companies

There is no specific law in India that applies to private companies that requires them to incorporate a whistleblower policy into their regime. Regardless of this fact, some private companies in India have voluntarily adopted an appropriate complaint mechanism system which aims to encourage the employees, contractors, suppliers of such companies to lodge a complaint about any actual or suspected illicit practice that might be taking place in the organisation. Such companies also take adequate preventive measures against the victimisation of persons who use the mechanism.

INFOSYS WHISTLEBLOWER CASE

India’s one of largest multinational companies in the IT sector, Infosys, received whistleblower complaints in September 2019. It was alleged that the company was taking unethical steps to boost its short-term profit. The company later released a statement saying that the complaint was placed before the Audit Committee. Subsequently, in January 2020, Infosys again issued a statement saying that the Audit Committee, after an exhaustive investigation, found no unethical practice being undertaken by the company and its top executive including the CEO and CFO and therefore, had given a clean chit to the company.

Crititcal Analysis of Laws Protecting Whistleblowers

While whistleblower complaints are on a rise in India, the government seems to do less about the handling of such complaints in an efficient manner. The Whistle Blowers Protection Act was enacted in 2014 but unfortunately, it is yet to be operationalised in India. This somehow defeats the entire purpose of the legislation being enacted. Some public servants still deter from informing about illegal activities that might be taking place in their departments due to fear of victimisation.

The Companies Act, 2013 mandates that every listed company must have a vigil mechanism but the Act fails to address the manner in which the mechanism must be regulated. Moreover, the Act does not lay down any fixed procedure for conducting inquiry into the alleged wrongdoings. Further, there is no instrument to determine whether a listed company has a fully functional vigil mechanism or is it just on papers.

Interestingly, the law does not even obligatorily require private employers to incorporate any whistleblower policy. Does that mean no private companies indulge in unethical practices? Of course not. Even though certain large multi-national corporations have voluntarily adopted a whistleblower policy, the company would not invite any legal penalty if in any case it does not comply with the policy.

Nevertheless, the government has also undertaken certain steps in order to ensure that nobody misuses the safeguards given under The Whistle Blowers Act, 2014 by introducing the Amendment Bill which ensures that national security is not compromised at the hands of whistleblowers. But this is not enough. It must be taken into account that even if employees or public servants notice some corrupt practices going on in their organisation, they usually refrain from reporting them due to fear of suspension, termination or victimisation. Not to forget that in many instances whistleblowers are martyred for raising voice against the violations of law. All in all, as employee vigilance is increasing in India, the need of the hour is to enact more stringent laws in order to provide adequate protection to whistleblowers along with a proper inquiry procedure.

REFERENCES:

https://m.timesofindia.com/city/bhopal/whistleblower-suspended-for-calling-senior-covid-carrier/amp_articleshow/82228991.cms
https://www.google.com/amp/s/www.cnbctv18.com/information-technology/heres-everything-that-we-know-about-the-infosys-whistleblower-complaint-and-its-potential-impact-4566691.htm/amp
https://www.google.com/amp/s/m.economictimes.com/tech/ites/infosys-internal-audit-finds-no-merit-in-whistleblower-allegations-of-wrongdoing/amp_articleshow/73188208.cms

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Vanshika Arora is a first-year B.A.LLB student at Army Institute of Law, Mohali. This article is a critical analysis of blockchain technology and its application in the legal sector.

INTRODUCTION

Blockchain technology has been around for quite a while, primarily piquing the interest of the finance fraternity. Investing in blockchain (which is very often interchangeably used to refer to ‘bitcoin’ or ‘cryptocurrency’) to test one’s fortune has rather become common practice. However, this technology has the potential to erupt every industry in an unprecedented manner. Hence, the legal industry should also take full advantage of blockchain. Simply put the most obvious utility for the legal fraternity would be its immense capacity to store and validate information. But, there is more to its applicability, which this article attempts to enumerate.

What is Blockchain Technology

Although blockchain technology appeared nearly ten years ago with a white paper written by an anonymous person or group called Satoshi Nakamoto, only within the last two to three years has the technology been catching on like wildfire. In common parlance, blockchain is a database that stores information in the form of “blocks”, which are “chained” together, hence the name. While a normal computer database has physical existence, can only be accessed by the author, and has limited capacity, blockchain beats all odds and is a global technology database wherein multiple users can access it and make transactions, which will be recognized as a new ‘bloc’, and added to the existing ‘chain’. Moreover, the blockchain database has no entry limit to it, and can easily replace multiple computer systems for storage. Whenever a new transaction is recorded, it is transmitted to a peer review network of computers, spread across the globe, once the transaction is confirmed, it is formed into a block and added to an existing chain of transactions.

Utility in Legal Sector

As mentioned before, blockchain has the ability to erupt useful in the legal sector, and the Global Legal Blockchain Consortium aims to adopt decentralisation in law. In 2017, PwC revealed that 70% of surveyed law firms would utilize smart contracts for transactional legal services.

Out of the analysis of total legal firms, 41% will use blockchain for transactional legal services, 21% for business support and 31% for providing high-value legal services. The legal industry could easily cater to immutable databases through blockchain,that are also secure and transparent. These could be used to facilitate smart contracts, mergers & acquisitions etc.

Blockchain could make the legal sector more accessible by simplifying transactional work, using digital signatures and smart contracts. It could also make it more cost-effective, by lowering the legal fee. Moreover, it could make the industry more transparent, since blockchain would entertain an open, easily accessible open database (ledger), accessible to all parties at all times. It could also cut down on clerical work since blockchain would carry that out automatically, this cutting down of managerial work could lead to more cost-effective businesses. Most importantly, blockchain is bound to bring automation to the legal sector. Where today lawyers spend a major part of their time doing administrative tasks, having a prefabricated smart contract and other facilities, could cut down on labor.

The idea of integrating blockchain in the legal sector was also proposed by NITI Ayog, in its report called “Blockchain: The India Strategy Part I”

Blockchain can prove useful to the legal industry in the following manner:

Smart Contracts
Chain of Custody
Intellectual Property
Litigation and Settlement
Corporate filings
Criminal cases
Document notarization
Land Registers and Property Deeds
Online Dispute Resolution
Blockchain Job Roles for Lawyers

Smart Contracts

The traditional forms of contracts are based on paper, require a lot of managerial and administrative work, and are also prone to human error. Smart contracts, on the other hand, would be available on the internet, at the disposal of artificial intelligence and biotechnology databases, hence making the work of a lawyer much easier. The following steps could perhaps, form the process of a smart contract:

All parties, (lawyers and clients), sign in to a web-based platform and furnish government-approved documents to verify identity.
Concerned parties draft a digital smart contract, which is then reviewed by the lawyers
The lawyers end the final contracts to the parties for signing authority
Once the contract is finalized, it is converted into a smart contract and made a “block”, to be added into the “chain” of the lawyer’s previous transaction.

This contract would be online, hence would also be accessible to the contracting parties.

Chain of Custody

Collecting evidence is perhaps the backbone of an investigation process. More so, keeping the evidence accessible at all times, can be a cumbersome task also prone to many mistakes. When in cases, some evidence is extensive, storing it could also be a problem. In case of a dispute that requires evidence to be stored for years, making it easily accessible could again be a problem. Hence storing the entire chain of custody online, over an immutable, transparent and secure platform is rather an easier option.

When a piece of evidence is collected from the crime scene, it can be directly uploaded as a block to a chain and can be accessed by forensics at the earliest. Lastly, evidence custodians can directly view the forensic results and evidence analysis through the established chain.

Intellectual Property

In 2017, the US Patent and Trademark Office (USPTO) received more than 440,000 new applications for the trademark. The annual report for the Fiscal Year 2017 also revealed that USPTO took approximately 16.3 months to complete patent average first action pendency (a period from the filing of an application to an initial office action) and 24.2 months to perform patent average total pendency (a period from the application filing to issued or abandoned patent).

Just like traditional contracts, IP filing is also cumbersome and may require a lot of managerial tasks. With blockchain technology, approval wait time can be reduced and required resources can be provided. This can also be done with a supposed series of simple steps:

Content creators log in to the platform and furnish government approved details of themselves
After logging in, content creators can put up an intellectual property, of which they want to file a patent, once that is done, they could also put the information of their IP on the blockchain network
Content consumers can log in to the platform and request access to the IP. Content creators in this case may furnish a smart contract and ask for the requisite fee.
Legal professionals, could help here is solving any disputes that may arise

Litigation and Settlements

In the case of a blockchain enabled litigation process, the plaintiff could first login to a blockchain based litigation app, furnish his personal information and his grievances. They could then look out for specialised attorneys on the app and contact them. The lawyer chosen by the plaintiff, would then file a case and inform the defendant of it , through an email or message. The defendant could undertake the same process and search for an attorney on the app. Since blockchain is immutable, no documents or contracts would stand a chance of manipulation. At last, a judge can access the time-stamped records of information and settle the disputes.

Corporate Filings

Through blockchain technology, every corporate record, and the transaction can be recorded easily, over an immutable, secure, and transparent platform. These records will be available as blocks forever and can be accessed at any time without the need for lawyers to do any managerial tasks.

John Mark Zeberkiewicz, a partner at the law firm Richards, Layton & Finger, said, “Think about what a corporation is—on some level, a corporation is its records. Ultimately, about every corporate document and transaction could be recorded on the blockchain, creating an immutable record of all corporate acts.”

Criminal Cases

According to a report of The Police Foundation, based in UK, blockchain could assist the heavy- paperwork system of criminal cases in the following manner:

The public would have greater access to information.
Permissions to view records can be set at various levels.
An auditable trail of amendments to the documents would be created.
Interested parties could receive updates instantaneously.
Record keeping would be greatly enhanced.
As more data is put before the public, creating a “glass government.”

Document Notarization

Notarization is the process of genuineness of a document to ensure proper execution. Since blockchain technology uses timestamps and hashes to record transaction,it can make document notarization easier. Companies that provide notarization services can easily furnish proof of the existence of a document, through time stamps.

Land Registers and Property Deeds

Land ownership documentation can be made easy with blockchain technology. It could help in transparency, updation and security of records for the brokers. The “Dubai Blockchain Strategy” aims to have all governmental property records on the blockchain by 2020. Way back in 2016, Cook County, Illinois launched a pilot program for transferring and tracking property titles on the blockchain and deployed it successfully in May 2017.

Blockchain Job Roles for Lawyers

When any new innovation comes into execution, it is bound to create unique job opportunities. The application of blockchain in the legal industry could create jobs like ‘smart contract programmer/auditor’.

Online Dispute Resolution

Commercial arbitration is a preferred choice because it is cost-effective, time-saving, and provides high confidentiality. Hence, with blockchain technology, ODR platforms could also provide secure cross-border and international dispute resolution. With recent examples of many jurisdictions adopting the model of blockchain ODR it will not be out of place to assume that the courts of the future may carry a better chance of providing cost-effective resolution to commercial disputes. Aragon Court recently adopted the said model where users can file issues or act as jurors. Initially, the Aragon Court is dealing with Proposal Agreements but the underlying technology can theoretically adjudicate any issue with two possible outcomes. Other platforms such as Jur, Kleros, Doges, and Oath are similar systems working under this model.

Conclusion

By integrating blockchain technology in the legal sector, lawyers will not have to do any mundane tasks, dependency on paper will decrease, collection of evidence could be easier and there would be a more secure and transparent platform.

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This article is written by Saba Banu, a 3^rd year law student, from Pendekanti Law College, Hyderabad. This particular article gives an analysis of the principle of intergenerational equity.

INTRODUCTION

Intergenerational equity in the simplest words means, that the duty of the present generation towards the future generations. It is designed as the relationship between the generations that lays more emphasis on the future generation in implementing the designs and the current policies for a better tomorrow. The duty of the present generation here means that the present people of the generation should take care of the ecology, nature and natural resources, so that the further generations have the idea and the chance to enjoy mother nature, how beautiful it exists in its way. It is the interdependence of many generations of humankind on the environment. This principle of intergenerational equity raises its concerns for the future generations, with keeping in mind the present generation to reflect on the environmental pressure and take effective steps. The principle fluently gives a concept of fairness among all the generations for the conservation and use of natural resources effectively among all other generations. Intergenerational equity is a recognized principle of International Environmental law which provides for the preservation of natural resources for the benefit of future generations. It has roots in the 1972 Stockholm Declaration.

Basic Principles of Intergenerational Equity

Every generation has equal rights for the effective use of natural resources present in nature, and preserves the diversity from getting exploited.

Principle of conservation of opinions: Every generation should preserve the diversity and it should not restrict the options that are available to future generations in solving their own problems. The ultimate aim is that the upcoming generations should not suffer just because of the excessive use by the present generation.

Principle of Conservational equality: This principle says that all the generations should maintain the planet in a very well manner so that it does not receive any worse condition for the upcoming generations, and it should also be entitled to planetary quality compared to other generations.

Principle of conservation of Access: Each generation should provide equitable rights for the generations and should also pass the legacy of access for preserving the future generations. As many environmental problems work it is insufficient for the next generation to restrict concern. As we speak about the future generations, it is impossible to find out what interests or needs will be there. These three principles are entitled to protect natural diversity, the quality of the environment, and access for the further generations.

Intergenerational Rights and Obligations

The three principles of intergenerational equity form the basis for the set of intergenerational rights and obligations, or planetary rights which are passed on from generation to generation. These rights which are derived from generation to generation play a part as the form of human society. Planetary rights are interlinked closely with the rights that are associated with the obligations. The main idea behind it is the moral protection of interests which is too transformed to legal rights and obligations. The planetary rights co-exist in this generation. In the view of intergenerational equity, the rights of future generations are linked to the present generations. Thus, the international obligation is to conserve the planet flow from the present generation to future generation, as the members of the present generation have the right to use and enjoy the planetary legacy. Planetary rights of future generations provide a framework for inserting the sustainable development. It is an entitlement that we ourselves as the present generation, held in relation with our ancestors have the right to protect our descendants.

Sustainable Development and Equity

The term sustainable development means that it is the development that meets the needs of the present generation without compromising the needs of the future generations. The intergenerational equity is present by the sustainable development goals (SDG’S). Sustainable development and equity both parts are the same side of the coin. It is the developmental process by protecting the same. The principle of intergenerational equity is present in sustainable development, whereas the latter is the attainment of the former. The main aim is towards a better, safe and clean environment for the further generations.

Landmark Cases on this Principle

GOA MINING CASE – In Goa foundation v Union of India and others, the Supreme Court held that there are four principles, which is the right and part of life according to the constitution. The four principles are intergenerational equity, sustainable development, precautionary principle and polluter principle. The Supreme Court even observed that the principle of intergenerational equity that the future generations should receive the same as the present generations, in dealing with the scarce conservation.

Rural Litigation Entitlement Kendra v. State of UP – The court observed that the, it has to always be remembered that the assets of the environment are the permanent assets and cannot be vanished in one generation.

CONCLUSION

It is the duty of every fellow citizen of every generation in coming forward for the protection of diversity, natural resources and to ensure the protection of all this for the future generations by the way of sustainable development. Equity, the intergenerational principle, is supposed to be an ethical principle of sustainable development. It is with collective decision making that such aspects are accepted. The pillars of the effective environmental policy are the access to the further generation, public participation and right to information are the parts which enhance intergenerational equity keeping in view of sustainable development. Both, the intergenerational equity and the sustainable development are the processes for the betterment of the generations, and these generations either present or past, should protect and use it accordingly. Therefore, the principle of intergenerational equity lays more emphasis for the present generation to use the resources in an effective manner so that the future generations don’t face any problem of the environment. Hence, the principle of intergenerational equity is the legal responsibility of the present generations for preserving nature, diversity and natural resources.

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This article is written by APURVA, a student of Fairfield Institute of Management and Technology, GGSIPU.

CASE NUMBER

WP Crl. No. 9/1994

EQUIVALENT CITATION

1994 AIR 1349, 1994 SCC (4) 260

BENCH

M.N. VENKATACHALLIAH (CJ), S. MOHAN (J), A.S. ANAND (J)

DECIDED ON

25 April 1994

FACTS

The petitioner, a man of 28 years of age was enrolled as an advocate.
The Senior Superintendent of Police (SSP) of Ghaziabad called the petitioner in his office for making enquiries in some case.
The petitioner on 7 Jan.1994 at about 10 o’clock appeared personally along with his brothers Shri Mangeram Choudhary, Nahar Singh Yadav, Harinder Singh Tewatia, and Amar Singh.
SSP kept the petitioner in his custody.
The brother of the petitioner made enquiries about the petitioner, but he was lied and told that the petitioner will be released by the evening after making some enquiries in connection with a case.
On 7 Jan.1994 at about 12.55 p.m., the brother of the petitioner sent a telegram to the Chief Minister of U.P. in concern to his brother’s arrest regarding some criminal case and also further insinuating that the petitioner has been shot dead in a fake encounter.
On the evening of 7 Jan 1994, it came to the knowledge that the petitioner was detained in an illegal custody of the SHO of Mussoorie.
On 8 Jan. 1994, it was informed that the petitioner was kept in detention to make further enquiries in some case. So far, the petitioner was not produced before the Magistrate concerned. Instead, the relatives of the petitioner were directed by the SHO of Mussoorie to approach the SSP of Ghaziabad for release of the petitioner.
On 9 Jan. 1994, in the evening when the brother of the petitioner along with some relatives went to the Police station of Mussoorie to enquire about the well-being of his brother, they found out that the petitioner had been taken to some destination which remains undisclosed.
The police officers claimed that the advocate was released and there was no question for detaining him as he was cooperating with them in some Abduction related matter.

ISSUE(S)

When can an arrest be made and on what grounds?

JUDGMENT

Various provisions and reports were discussed in the Hon’ble Apex Court in detail. It was stated that no arrest can be made as it is lawful for the police officer to do so. It was also mentioned that the existence of the power to arrest is one thing while the justification for the exercise of it is another. Hence, the police officer is needed to be able to justify the arrest apart from his power to do so.

An incalculable harm can be caused to the reputation and self-esteem of a person in arrest and detention in police lock-up. A person cannot be arrested merely on an allegation of commission of an offence made against him in a routine manner. This would be wise of a police officer in the interest of protection of the constitutional rights of a citizen and in his own interest as well, that no arrest is made without reasonable satisfaction after some investigation to find out the genuineness of a complaint. And denying a person of his liberty is a serious issue.

The advocacy of the Police Commission reflects the constitutional connections of the fundamental right to personal liberty and freedom. A person is not liable to get arrested merely on the suspicion of complicity in an offence. There must be some satisfactory justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified unless the crime is a heinous offence. Then, an arrest must be avoided if a police officer issues a notice to a person to be present in the police station and not to leave the Station without permission.

The rights are fundamental rights which are inherent in Articles 21 and 22(1) of the Constitution. They are required to be recognized and meticulously safeguarded. For effective enforcement of those fundamental rights, the Hon’ble Court issued the following guidelines:

An arrested person being held in custody is entitled to inform if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare that he has been arrested and where he is being detained.
The police officer shall inform the arrested person when he is brought to the police station of this right.
An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from Articles 21 and 22(1) must be enforced strictly.

It was further directed that it will be the duty of the Magistrate to satisfy himself with the requirements before whom the arrested person is produced.

HELD

It was ruled by the court that an arrest cannot be made on a mere allegation of offence against a person or in a routine manner without any genuine complaint and a proper investigation. Constitutional rights of a person mandate that he is not arrested on simple suspicion of complicity in an offence and cannot be arrested without a reasonable satisfaction reached after some investigation to find out the genuineness of the complaint. The mentioned requirements must be followed in all the cases of arrest till the other legal provisions are made on their behalf. Those requirements were mentioned to be added to the rights of the arrested persons in the various police manuals. The mentioned requirements are not exhaustive. So, the Directors General of Police of all the States in India were asked to issue necessary instructions requiring due observance of these requirements. In addition, the departmental instructions were also asked to be issued that a police officer making an arrest should also record in the case diary mentioning the reasons for making the arrest.

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This article is authored by Sanskriti Goel , a 1^st year law student from Chanderprabhu Jain College of Higher Studies and School of law, GGSIPU. The article is an attempt to provide clarity and remove any conjectures about the reforms introduced by the farm laws 2020 especially in the context of the backlash. It also provides insight into the important provisions of these laws.

INTRODUCTION

The three farm bills were given assent by the President of India, Ram Nath Kovind on 27^th September, 2020 and ever since, the backlash against these laws has been massive. Agriculture in India provides livelihood to 58% of the country’s population. The three laws aim to change the way agricultural produce is procured, sold and stored across the country.

Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020

Farming Agreement: The act provides for a national framework for contract farming under which an agreement will be made between a farmer and a buyer before the production or cultivation of any farm produces.
Minimum Period of Farming Agreement: The minimum period of the farming agreement will be for one crop season or one production cycle of livestock.
Maximum Period of Farming Agreement: The maximum period of the farming agreement shall be five years with the exception that if the production cycle of any farming produce is longer and goes beyond five years then the maximum period of farming agreement can be mutually decided by the farmer and the buyer provided that it shall be explicitly mentioned in the farming agreement.
Pricing of Farming Produce: The pricing of farming produce and the process of price determination should be stipulated in the agreement. If the prices are subjected to variation, a clear reference for any additional amount above the guaranteed price must be mentioned in the agreement.
Resolution of Dispute: The Act provides for a three-level dispute settlement mechanism at three levels in following ascending order:

Conciliation Board,
Sub-Divisional Magistrate ;and
Appellate Authority

Farmer’s Produce Trade and Commernce (Promotion and Facilitation) Act, 2020

Trade of Farmers’ Produce: The Act allows intra-state and inter-state trade of farmers’ produce . The farmers are now allowed to trade in outside trade area such as farm gates, factory premises, cold storages, etc. Earlier, it could only be done in the Agricultural Produce Market Committee (hereinafter ‘APMC’) markets or Mandis.
Lucrative Prices: The farmers are likely to be offered lucrative prices via alternative trading channels to promote barrier-free intra-state and inter-state trade of agriculture produce.
Electronic Trading: It will also facilitate direct and online buying and selling of the agricultural produce (regulated under any state APMC Act) via electronic devices and the internet.
Market Fee Abolished: The act prohibits the State Governments from levying any market cess on farmers, traders and electronic trading platforms for trading farmers’ produce in an outside trade area.

Essential Commodities (Amendment) Act, 2020

The act aims to amend the Essential Commodities Act, 1955.

Deregulation of Commodities: Certain commodities that have been deregulated are food items, including cereals, pulses, potato, onion, edible oilseeds, and oils.

Critical Analysis

Intended Benefits

The farm laws 2020 intend to help the small and marginal farmers who constitute 86% of total farmers because it has been observed that such farmers usually do not have the means to either bargain for their produce to get a better price or invest in technology to improve the farm productivity.
The farmers are likely to get access to internet and other modern technology which in turn will help in improving the production and trading process of agricultural produce.
For several decades, the monopoly of APMC markets had led to centralization and reduction in competition. The new farm laws would create an environment favourable for competition via alternative trading channels.
The new farm acts would improve the marketing process for agricultural produce , making it more efficient and effective.
The farmers would have full autonomy to negotiate better prices for their produce.
The deregulation of several food items under the Essential Commodities (Amendment) Act, 2020 will help attract private sector and foreign direct investment into the agriculture sector.
Contract farming will help reduce the input cost for farmers.
Contract farming will also encourage private sector participation in procurement of agriculture produce, ensuring regular supply of needed inputs for their production and would save them from unforeseen market price fluctuations.
The farm laws are expected to pave the way for the creation of a ‘One India, One Agriculture Market’ by promoting barrier-free inter-state and intra-state trade along with provisions of electronic trading.

Possible Demerits

Mandis are a source revenue for state governments. The diversion of agricultural trade towards private mandis could lead to the loss of states’ revenues.
Middlemen and traders would be affected.
There is no specific provision as to how the private mandis would be regulated.
The major drawback of contractual farming is that the farmers who lack proper knowledge and are illiterate might not be able to negotiate best possible contractual terms and this would lead to their exploitation at the hands of private companies.
It is feared that contractual farming would pave the way for slavery as farmers would become puppets of large corporations.
If the produce is substandard, the companies would not pay the farmers for their produce.

Why the Backlash

Minimum Support Price

Despite a written assurance of procurement at Minimum Support Price (hereinafter ‘MSP’) given by the government to the protesting farmers, the leader of Bharitya Kisan Union, Rakesh Tikait wants the new farm laws to be repealed and has demanded for a separate law on MSP.
Here, it is worth noting that only 6% of farmers actually sell their crops at MSP rates, as per the 2015 Shanta Kumar Committee’s report.

Contractual Farming

The small and marginal farmers fear that they will lose their landholdings to big corporations under contractual farming.
However, the new law explicitly prohibits any sponsor firm from acquiring the farmers’ land and hence protecting the farmers’ land ownership.
Moreover, the contractual farming is purely voluntary in nature and no farmer can be compelled to enter into farming agreement.

U-turn by Opposition Parties

On 7^th december, 2020, Rahul Gandhi’s tweet read: “The ‘Adani-Ambani farm laws’ have to be revoked. Nothing less is acceptable. ”

Ironically, the Congress’s 2019 Lok Sabha election manifesto, under the segment “agriculture”, promised repealing of the APMC Act and not merely bringing an additional procurement set-up as proposed by the new law under Modi government. Not only this, under the manifesto it was also promised to make trade in agricultural produce, including exports and inter-state trade, free from all restrictions.

Apart from this, Arvind Kejriwal also tweeted on 7^th december, 2020 in support of protest led by farmers’ unions saying: “In support of our farmers in their protests, we are here to serve them just like one should serve every other citizen.” Interestingly, in October 2016, in AAP’s manifesto for Punjab Assembly Election, it was proposed that amendments would be made to APMC act to allow farmers to sell their produce to buyers & markets of their choice in and outside the state.

Way Forward

The chief economist of International Monetary Fund, Gita Gopinath has said that India’s recently enacted agricultural laws have the potential to increase farmers’ income, but there is a need to provide a social safety net to the vulnerable farmers. She also added that Indian agriculture is in need of reforms.
Backing India’s new farm laws, the United States said: “It welcomes steps that would improve the efficiency of Indian markets and attract greater private sector investment.”
Undoubtedly, the farm laws 2020 have the potential to increase rural incomes provided that the government ensures proper implementation of these laws after making the required changes.
The government and the farmers’ unions should continue with their talks to reach an amicable solution.
The government must work towards removing any ambiguity that might hinder the peaceful implementation of these farm laws.
Any misconceptions that farmers might be harbouring should be cleared by the government immediately.
The farmers also need to have a wider outlook on the new farm laws and should view these laws as a medium of much needed change in Indian agriculture.
Also, the opposition parties need to keep farmers’ best interests at heart rather than viewing this as an opportunity to defame the ruling party and politicizing something that they supported earlier. The parties should refrain from indulging in dirty politics and must come to a consensus for implementing the newly enacted farm laws.

REFERENCES:

https://byjus.com/free-ias-prep/farm-acts-2020/
https://www.google.com/amp/s/m.jagranjosh.com/general-knowledge/amp/farm-bills-indian-farm-reforms-2020-1606901455-1
https://www.google.com/amp/s/www.indiatoday.in/amp/news-analysis/story/a-tale-of-u-turns-on-the-three-farm-laws-1750146-2020-12-16
https://www.google.com/amp/s/www.thehindu.com/news/national/new-farm-laws-have-potential-to-raise-income-imf-chief/article33678932.ece/amp/
https://www.google.com/amp/s/m.economictimes.com/news/international/world-news/us-backs-indias-new-farm-laws-says-it-will-improve-efficiency-of-markets/amp_articleshow/80680530.cms

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This Case Brief is written by K.Lasya Charitha, pursuing BALLB in Damodaram Sanjivayya National Law University, Visakhapatnam.

Case Number

Criminal Appeal No. 638 of 1999

Equivalent Citation

5 SCC 740, AIR 1999 SC 2332, 1999 (2) UJ 1270

Bench

Hon’ble Justice K.T.Thomas and Hon’ble Justice M.B. Shah, JJ.

Decided On

15^th July 1999.

Relevant Act/ Section

Section 415 of the Indian Penal Code of 1860 – Cheating

Section 420 of the Indian Penal Code of 1860 – Cheating and dishonestly inducing delivery of property

Section 173(8) of the Code of Criminal Procedure of 1973 – Report of a police officer on completion of an investigation

Brief Facts and Procedural History

The Appellant (Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishanandha Maharaj) of Gummaluru Village in Andhra Pradesh claimed to possess occult faculties and attracted several devotees. He represented to have divine healing powers through his touches, particularly of chronic diseases. The complainant Venkatakrishna Reddy approached the appellant and asked him to heal his 15-year-old daughter who is congenitally a dumb child. The Appellant assured him that his little girl would be cured and demanded a sum of Rs. 1 lakh as consideration. Initially, 6000 was paid and he waited for his daughter to be cured till 1994 which was time indicated by the appellant but the appellant requested time till August 1994 but there was no improvement in the girl. The Complainant heard from other sources and publications that the appellant deceived many other people crores of rupees. Then, An FIR was registered on the complaint lodged by Venkatakrishna Reddy with the Town Police Station, Nellore. The police investigated and submitted a final report to the magistrate on December 15, 1994, on the grounds that the case was a mistake of fact, mainly because this religious belief is widespread among Indian believers. This is not fraud or a breach of trust, but the magistrate does not want to follow the above agreement. On February 8, 1995, he ordered a new investigation into the case. According to the order, the police returned to investigate and submitted a report on September 15, 1997. In the report, it was found that the plaintiff had violated Article 420 of the IPC. After receiving the above report, the magistrate became aware of the crime and issued an arrest warrant to the applicant. The Appellant moved the High Court on two grounds: First, in the absence of an opportunity for the applicant, the magistrate has no right to order a new investigation after receiving the first police report. The complainant’s allegations will not constitute a crime of cheating. However, the High Court rejected the petition. Aggrieved, the appellant brought the present case to the Supreme Court of India.

Issues before the Court

Whether the appellant should be acquitted and not tried for cheating?
Whether the learned magistrate has no jurisdiction to order reinvestigation after receiving the first report of the police?

Ratio of the Case

The ratio decidendi of the above case is that when a person prays to God to heal the sick, there is usually no deception, but when he shows to another person that he has sacred power and makes another person directly or indirectly believe that he has this sacred power, it is inducement specified in Article 415 of the IPC, then anyone who responds appropriately to the established incentive measure and provides money or other items for the incentive measure but does not achieve the expected effect is a victim of fraud. Then this situation falls under the ambit of section 420 of IPC.

Section 173(8) of the CrPC recognizes that the police have the right to conduct further investigations after expressing their final opinions. Even after the court learns of the crime based on the police’s initial report, the police can still conduct further investigations, as stated out in Ram Lal Narang v. State (Government of Delhi) that the police should notify the court and seek official permission for further investigation.

Decision of the Court

The Supreme Court of India dismissed the appeal made by the appellant on the grounds that this is a clear case of cheating by making others believe that he has sacred power and demanding money for the same fall under Sections 415 and 420 of IPC and the right of the court to order the police to conduct further investigations should not be restricted. Section 173(8) of CrPC does not indicate that the court must hear the accused’s opinion before issuing such an order. This kind of obligation in the court will only make the court too burdensome and unable to find all potential accused so that they can be heard. Since this is not required by law, the court cannot impose the burden of this duty on the bench. Therefore, the court said that the learned magistrate has not committed any mistake in ordering the police for reinvestigation.

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This article is written by Kalyani Gupta, a Master’s in Law student from Amity University, Noida. This commentary discusses in brief about the case Seth Ganga Dhar Vs. Shankar Lal and Ors.

Petitioner

Seth Ganga Dhar

Respondent

Shankar Lal and Ors.

Citation

AIR 1958 SC 770, [1959]1SCR509

Civil Appeal No.

150 of 1954

Hon’ble Judges/Coram

A.K. Sarkar, J.L. Kapur and N.H. Bhagwati, JJ.

Date of Decision

15.04.1958

The term “mortgage” performs a crucial role in identifying the property law. Mortgage describes the transfer of interest conferred in an immovable property for advancing a loan or for a little which would give rise to monetary interest in future. The person who transmits the activity is identified as mortgagor and the individual to whom the interest is transported is known as mortgagee. The extent for which the estate is mortgaged is identified as the principal money or amount. In the Transfer of Property Act,1882, various kinds of mortgages have been well-defined along with affixed circumstances.

As quickly as the property is mortgaged, some of the rights of the mortgagor are necessarily reserved. One such vital right is the Right to redemption. Each Time an individual mortgages his property as a protection, he has the right to take it back when he pays back the amount along with interest. The property cannot be kept forever with the mortgagee because it will remove the mortgagor of his right to Redemption. Section 60 talks about the right and describes the things which are to be sent to mortgagor on payment of cash. The mortgagor in any court case cannot be denied of his right. Any such situation that impedes the mortgagor from converting his property back up from the mortgagee is known as “Clog on Redemption”. Such circumstances are deemed as void ab initio. There are some exemptions in which this clog is not unenforceable but, in most of the cases it is.

FACTS OF THE CASE

This appeal has appeared out of a suit for “the redemption of a mortgage” which is dated August 1, 1899. The mortgage was formed by Purshottamdas who has passed away now and was in favour of Dhanurpmal, a respondent in the said appeal. The mortgage instrument asserted that the land had been usufructuary pledged in lieu of Rs. 6,300 of which Rs. 5,750 were left with the mortgagee to restore a previous mortgage on the similar and a new property with a profitable mortgage refinancing assistance. It also offered that on recovery of the preceding mortgage, the ownership of the shop shall be taken and reserved by the mortgagee, Dhanurpmal, who would fix the rent in accordance with interest on the cash advanced by him and the ownership of the other property enclosed by the previous mortgage, having a share in a Kacheri, would be given over to the mortgagor, Purshottamdas. The mortgagee, Dhanrupmal, suitably redeemed the previous mortgage and, took the possession of the shop while the possession of the Kacheri was transferred to the mortgagor.

On April 12, 1939, Dhanurpmal transferred his rights under the mortgage to Motilal who also died later and whose property is now being represented by his sons; they are the respondents in this appeal. The property of Purshottamdas, who is the original mortgagor, is now also represented by his son, the appellant. Requesting a short-term loan without a job or payday monetary advance is the simplest thing to do and so is being eligible for it. There are only two easy limitations on it, such as, that you must have never evaded a prior payday loan and that you must have adequate income.

On January 2, 1947, the complainant filed the suit in the Court of the Sub-Judge, Ajmere, alongside the respondents. The suit was challenged by the sons of Motilal, the assignee of the mentioned mortgage, who are the respondents appearing in the case appeal, who shall be henceforth mentioned as the respondents. They stated that the suit was hasty as under the contract of mortgage there was no right of release for eighty-five years after the said date of the mortgage, till August 1, 1984.

The learned Sub-Judge, intending to adhere to a decision of the Judicial Commissioner, Ajmere, to whom he was subservient, held that the requirement delaying redemption for eighty-five years was unenforceable as it amounted to a clog up on the equity of redemption. Therefore, he passed an initial decree for redemption. On filing the appeal, the learned Judicial Commissioner, Ajmere, held, the decision that had been intended to follow was evident. He analysed many cases on the subject matter and came to the assumption that the provision that was in question did not sum up to a “clog on the equity of redemption”. He, thus, permitted the appeal and rejected the appellant’s suit. From this judgment the appeal to this Court begins. The conditions in the mortgage instrument on which the current debate turns were in these terms: “I or my heirs will not be entitled to redeem the property for a period of 85 years. After the expiry of 85 years, we shall redeem it within a period of six months. In case we do not redeem within a period of six months, then after the expiry of the stipulated period, I, my heirs, and legal representatives shall have no claim over the mortgaged property”

ISSUES

Whether a term period in a mortgage instrument, so far as it precludes the right to redeem from accumulating for a time, a clog on the equity of redemption?

JUDGMENT

Section 60 of “Transfer of Property Act”, at any given time after the primary money has become due, the mortgagor gets a right on payment or offer of the mortgage money to entail the mortgagee to re convey the mortgage estate to him. The right that is given by this section has been termed as the ‘right to redeem’ and, also, in this section that right can be applied only after the money of mortgage has become due. Once the right to redeem has surfaced it cannot be hauled away. The Courts will overlook any contract which might affect to remove the mortgagor from his right to redeem the mortgage. Considering the above principle, it is clear that on the failure of the mortgagor to redeem the mortgage in the stated period i.e., six months the mortgagor will then have no claim on the mortgaged land, and the mortgage deed will be considered to be a ‘deed of sale’ which will be in favour of the mortgagee, and cannot be sustained. It clearly takes away entirely, the mortgagor’s right of redeeming the mortgage after the stipulated period. This is not permitted, for “once a mortgage always a mortgage” and thus should be always redeemable.

The issue in the current case, the court perceives that the rule in contradiction of clogs on the equity of redemption exemplified in Section 60 of the Act authorises the Court not only to dismiss a mortgagor of a bargain whereby in some conditions his right to redeem the mortgage is absolutely taken away, but also where that particular right is constrained. The scope of this latter power is, still, inadequate by the cause that gave rise to it, explicitly, the unacceptable nature of the bargain, which, to a court of equity, must afford as adequate grounds for dismissing the mortgagor of his burden.

Subsequently, in a suit, for recovery where the mortgage deed, by two separate and self-governing terms providing that:

(1) the mortgage will not be exchanged for eighty-five years

(2) that it might be redeemed merely after that period and within six months

Thereafter, failing which the mortgagor must cease to take any entitlement on the mortgaged estate and the mortgage deed shall be considered to be a deed of sale in support of the mortgagee, and it was undoubtedly apparent from the facts and situations of the stated case that the bargain was rather fair and one as amongst the parties dealing with each other on an equivalent footing, it was apprehended that that the term delivering for a period of eighty five years was not a “clog on the equity of redemption”, and the simple span of the period could not by the situation lead to an implication that the bargain was in any way repressive or unreasonable. The term was enforceable by law and the suit for redemption that was filed before the expiration of the time period was hasty.

The Court also observed that the term period on the failure of the mortgagor to recover within the stated time period of six months, he would mislay his right to do so and the mortgage deed was to be considered to be a deed of sale in favour of the mortgagee, was evidently a clog on the equity of redemption and as such illegal but its unjustifiability could not in any way disturb the legality of the other term as to the time of the mortgage, that mounted visibly apart.

HELD

The mere length of the period could not by itself lead to an inference that the bargain was in any way oppressive or unreasonable. Depending on the facts and circumstances of a case, the Court has not only the right to relieve a mortgagor of a bargain but also where the right to redeem is restricted.

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This article is written by APURVA, a student of the Fairfield Institute of Management and Technology, GGSIPU.

INTRODUCTION

The Code of Criminal Procedure, 1973 has various functionaries to help to regulate the various provisions of the code. Those various functionaries under the Criminal Procedure Code are Police, Prosecutors, Court, Defense Council and Prison Authority and Correctional Services. This article deals with those functionaries.

The Police

The definition of the term Police is defined in the ‘Police Act, 1861’ and not in the Code of Criminal procedure. In the case Prakash Singh v. Union of India, the court defined the guidelines regarding the reorganisation of the police. The major function of the police is to prevent crime and maintain peace in the society.

The Police Act, 1861

The Police Act, 1861 is a comprehensive code that contains 47 sections which deals with various aspects of the police force including their appointment, dismissal, and functions. Various states like Kerala, Maharashtra, Gujarat, and Delhi have formulated their separate Police Acts, but they are very similar to the Police Act, 1861.

Functions of the police

Section 23 of the Police Act, 1861 deals with the functions of the Police Officer which defines that the duty of every Police Officer is to:

Collect and communicate intelligence.
Prevent the commission of offences and public nuisance.
Figure out and bring offenders.
Promptly obey and execute all orders executed to him by any competent authority.
Arrest all persons if any crime is committed and whom he is legally authorized to arrest.
Enter and inspect any drinking or gambling house or other places without a warrant to solve loose or disorderly characters.

Other Police Acts:

There are various provisions in Indian Penal Code, 1860 and the Criminal Procedure Code which are responsible for regulating some functions of the Police. There are also certain provisions in the Indian Evidence Act, 1872 which provides power to the Police to record confessional statements under sections 26 and 27. Some states like, Tamil Nadu have introduced its own manual which regulates the various functions and duties of Police.

Importance of Police under the Code of Criminal Procedure

The Code of Criminal Procedure, 1973 provides the Police with various duties and functions, as mentioned in various section, like:

Section 151: Under this section, the Code provides power to arrest a person without any warrant and orders from the Magistrate to prevent the commission of any cognizable offences. The person arrested cannot be detained in custody for a period not exceedingly more than 24 hours from his arrest which can also be extended if required by the various provisions of other laws in force.
Section 154: According to this section, the Police Officers have the power to record every information provided orally if it relates to the commission of a cognizable offence. This Section also mentions that some particular complaints can only be recorded by the women Police Officers if a complaint relates to the offences against women.
Section 156: This section of the Code provides power to the Magistrate to investigate any cognizable offence within their jurisdiction without the order of any Magistrate.

The Prosecutors

The Central Government and the State Government are empowered to appoint prosecutors for conducting prosecutions of the state and other proceedings in High Court, Sessions Court or Court of a Magistrate.

Public Prosecutor in High Court

In consultation with the High Court, the Central and State Government appoints a Public Prosecutor and Additional Public Prosecutor to conduct the prosecution and other proceedings of the State or Central Government. If any advocate has not less than seven years of experience of practice, he can be appointed as a Public Prosecutor or an Additional Public Prosecutor.

In Sessions Court

In consultation with the Sessions Court Judge, the District Magistrate prepares a panel of names of persons who are eligible to be the Public Prosecutor or Additional Public Prosecutor of the Sessions Court. The State Government then makes a choice to appoint the Public Prosecutor or Additional Public Prosecutor by the panel of names. Both the Central and the State government can appoint one or more Public prosecutor and Additional Public Prosecutor for the Sessions Court. An advocate must have practice not less than seven years to get appointed as a Public Prosecutor or Additional Public Prosecutor, An.

A district Magistrate has no right to delete a person’s name from the panel as it was recommended by the Sessions Judge as well as he cannot add the name of a person to the appointment of an Additional Public Prosecutor without the consultation of Sessions Judge and this was decided in the case of Abdul Khader v. The State of Kerala.

Special Public Prosecutor

A special public prosecutor is appointed in special circumstances by the Central Government and the State Government for the prosecution of any case, and that prosecutor must have experience not less than 10 years as an advocate.

Assistant Public Prosecutor

Under Section 125 of the Code, the State Government can appoint Assistant Public Prosecutor for the prosecution of cases in different districts. An assistant public prosecutor has only the right to do prosecution for the state and cannot practice as an advocate independently. He is considered a full-time government servant. If there are no public prosecutors available for a case, the District Magistrate can appoint an assistant public prosecutor in the charge of the case. A police-officer not below the rank of Inspector can be appointed as an assistant public prosecutor.

The Court

The Courts are important functionary under the Code of Criminal Procedure. They are classified into various classes of Criminal Courts under Code of Criminal procedure like,

Court of Session
Judicial Magistrate of First Class
Judicial Magistrate of Second Class
Executive Magistrate

Section 26 of the Code of criminal procedure mentions that the High Court, the Court of Session, or any other Court as specified in the First Schedule of the Code of Criminal Procedure is eligible to try offences provided under the Indian Penal Code. Section 28, 29, and 30 deals with the various kinds of sentences that can be passed by different Courts which helps the procedure of trial and also the powers between the Courts get distributed properly.

The Defence Counsel

In the case of State of Madhya Pradesh v Shobharam, it was provided that any law that takes away the right to defend is against the rights guaranteed in the constitution. Every person has a right to defend himself with the help of a counsel if they are arrested by the police. This provision is construed in relation to Article 22 of the Constitution, which provides the right to free legal aid to the accused to defend himself by the counsel of his choice. Section 303 of the Criminal Procedure Code provides this right to appoint a defense counsel of their choice. This provision must be construed liberally in favor of the accused along with the other provisions and orders issued by the High Courts. A defense counsel should be provided to the accused even in cases of committing capital offences, where they have no right to defend themselves. When the accused is not represented by a counsel, it is the duty of the court to put appropriate questions to the witnesses in cross-examinations in order to find out the truth.

The Person Authorities

These authorities do not come under the Code of Criminal Procedure but The Prison Act,1900 is implemented to govern the proceedings of the prison authorities. This Act was introduced to provide powers to the prison officer to detain the convicted person. Section 3 of the Prison Act gives the power for the officer in charge to detain the convicted person until the end of imprisonment period. The Management Correctional Services and State Government has powers to appoint the prison authority.

CONCLUSION

It can be concluded that the functionaries very essential for the enforcement of various provisions under the Code of Criminal Procedure are. Each functionary has a different duty which together regulates various provisions of this code. Thus, these authorities form an important part of the criminal proceedings.

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