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This article is written by Prachiti Shinde, Thakur Ramanarayan College of law

What is meant by prostitution?

Prostitution is the practice or business where people part in sexual activity in exchange for money and a person who is engaged, in this field is referred to as a prostitute.

Now to think of it, is it legal all around the world?

Where prostitution is not tolerated and it is illegal to carry out prostitution e.g. Kenya, Morocco, Afghanistan, etc.
Where prostitution is legal but it is legal with certain limitations and restrictions e.g. India, Canada, France, etc
Where prostitution is legal and regularised with proper laws e.g. New Zealand, Australia, Austria, Netherlands, etc.

Was prostitution originated in India? What was the history behind it?

There was a devadasi system earlier that used to contribute all her life in the devotion of Lord Krishna. They were highly respected by royals. Later they were called Nagarvandu i.e. Bride of the town they were called by royals to sing and dance. Later when British people came to India they changed to the concept of the previous system and introduced prostitution. British officers used to call Devadasi to perform art and from here it became the beginning for one night stand. The Indian Economy began to deplete and people started losing their means of livelihood women then started selling their bodies to the British officers in an exchange for money.

Causes for Prostitution

Poverty: This is the biggest reason females are either being forced or lured by someone promising employment opportunities. Later they sell them as sex workers. The chain continues as illiteracy leads to poverty, it leads to unemployment and it leads to
Family prostitutes: often the children of prostitutes have no option but to carry on the same work as their mothers as there is a lack of acceptance as well as education in the society.
Social customs: There are still some communities like the banchhara community which send the girls in the community into prostitution as a part of their moral and religious duty. The flesh trade is carried on the national highway of Madhya Pradesh.
Sale by husband or relatives: Especially in the areas of Warangal, Chittoor, Bellampali, and other northern parts of M.P and U.P, etc.

After listing causes it is evident that injustice has been going on for ages so are there any rights available for the protection of sex workers?

Primarily the law dealing with sex workers is the Immoral Traffic (Suppression) Act 1956 under this sex workers are allowed to practice their profession secretly. If it is legalized then why is it carried out secretly? Some sections of the ITPA Act deal with certain aspects related to prostitution.

Section-3 of the act prescribes punishment for keeping a brothel or allowing premises to be used as a brothel
Section-4 of the act penalizes any person who is living on the earnings of prostitution. This section does not even exclude the family members.
Section-5 of the act penalizes the procuring, inducing, or taking person for the sake of prostitution. This section targets the pimps, brothel owners, and traffickers.
Section-6 of the act penalizes the people who detain a sex worker in the brothel or any premises where prostitution is carried on. This section specifically targets the middlemen and the brothel owners.
Section-7 of the act penalizes prostitution when it is carried out in or in the vicinity of public places.
Section-8 of the act penalizes the sex worker for seducing or soliciting a person for purpose of prostitution. According to this section, a sex worker cannot do any gestures to invite someone for prostitution.

Case laws

a) Kamaljeet Singh v state

The appellant was accused of operating a widespread national organized crime network that engaged in the recruitment and transport of women to engage in commercial sexual exploitation (i.e. prostitution). A police sting operation netted a lower-level pimp and two prostitutes with connections to the appellant, and these individuals offered up confessions that, in conjunction with other circumstantial evidence, substantiated the charges against the appellant. It was disclosed that the appellant’s network supplied girls to five-star hotels, guest houses, and posh colony flats in various cities including Mumbai, Calcutta, Bangalore, etc., and that this prostitution racket had been ongoing since 1985-86.

b) Vishal Jeet v. Union of India (1990)

his writ petition under Article 32 of the Constitution of India at the instance of an Advocate was filed by way of a Public Interest Litigation seeking issuance of certain directions, to look into issues of Red Light areas and forced prostitution from a law enforcement perspective; to rescue victims of commercial sexual exploitation and provide them with proper medical aid, shelter, education, and training in various disciplines of life to enable them to choose a more dignified way of life; and to look into issues about the dedication of young girls as Devadasi and Jogi.

The petition brought out the fact that poor parents on account of acute poverty were selling their children and young girls hoping that their children would be engaged only in household duties or manual labor. However, pimps – brokers – keepers either purchase or kidnap them by deceitful means and unjustly and forcibly inveigle them into ‘flesh trade’.

This Public Interest Litigation was a first of its kind on the problem of trafficking in women and children for sexual abuse and exploitation. The judgment was a landmark decision where the Supreme Court gave directions for the protection and rehabilitation of those who had fallen victim to forced prostitution and those who were dedicated as devadasis by their families or communities for cultural reasons and were currently in prostitution.

Should Prostitution be Legalized?

If it is legalized, then it would at least give a scope of guarantee for the protection of their rights as well as their children’s rights. They could demand safer sex and also regular check-up for the safety of her as well as of the client. This would help in the prevention of the spread of STDs. The involvement of minors would be prohibited as sex workers would have licenses.

However, earning made by selling the dignity and esteem of a woman is something that is not at all admirable. And if prostitution is made legal in Indian society, then people will start viewing it as a profession and therefore more women will be motivated to engage in this industry as an easy way to earn money. As a result, it will cause the massive growth of this industry. A subsequent concern centers on the hazard that sanctioning prostitution will lead to the increase of human trafficking. In India more than 84 million people are poor and for their survival, many times people sell their female child to sexual predators in exchange for money. And with the decriminalization of prostitution, more children will be forced to become sex workers. Also, there will be a rapid increase in the number of scams.

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This article is written by Akhilandeswari Bonam, a student of Sri Padmavati Mahila Visvavidyalayam, Tirupati.

Case Number

Civil Appeal Number 7975 of 2001

Equivalent Citations

AIR 2002 SC 2931; 2006(6) SCC 635

Bench

M.B.Shah, Bisweshwar Prasad Singh, H.K. Sema.

Decided on

12.8.2002

Relevant Act/Section

201, 203, 304-A IPC.

Brief Facts and Procedural History

Appellants filed a suit before the National Consumer Disputes Redressal Commission (National Commission) under Miscellaneous petition number 53 of 2000. In 1993 a suit filed under original petition number 252 of 1993 before Commission, appellants prayed that complaint filed for alleged medical negligence be either dismissed as according to the complicated questions of law and facts arise which can best be decided by the civil court or in the alternative the proceeding be stayed during the pendency of criminal prosecution pending against them in criminal court at Mumbai. This application was rejected by the commission.

In 1993 the complainants filed an original petition against appellants before the National Commission alleging that his son (complainant son) aged 21 years was admitted in the Branch Candy Hospital in Mumbai on 4.8.1992 for the operation of slip disc as he was suffering from backache. He died on 29.8.1992 in the hospital itself, the complainant attributed this as medical negligence.

The complainant had also filed a criminal complaint against doctors (appellants) before the Metropolitan Magistrate under sections 201,203 and 304-A IPC before filing a complaint in the National Commission. This prosecution is also pending. The Commission rejected the application by holding that there is no universal rule of law, to continue civil proceedings while the criminal proceedings are pending. The Commission also observed that there was an unexplained delay in moving such application at this stage and therefore, the case requires to be decided at the earliest.

Learned senior counsel submitted the aspects which influence the direction to the complainant to approach the Civil court. Learned counsel for the parties also submitted the reasons for the delay.

There is an inordinate delay of about nine years in the disposal of the complaint. However, if this contention is accepted, the purpose and object of the Consumer Protection Act, 1986 would be frustrated. One of the main objects of the act is to provide a speedy, efficacious, alternative, and simple remedy to consumer disputes. Quasi-judicial machinery also constituted for dealing with these disputes on the principles of natural justice. Before enactment of this act, the complainants were required to approach the civil court for securing justice, where the decision takes years to decide a dispute.

Learned counsel for the parties submitted that in the present case, there is a delay of more than nine years in the disposal of the complainant. For that purpose, they made a grievance that matters are frequently adjourned on one or other ground without following the procedure prescribed under 13 of the Consumer Protection Act and rule 14 of the Rules. The proposed amendment also requires that no adjournment shall ordinarily be granted and in any case, if any adjournment is required to be granted, reasons for the same are required to be recorded.

Issues before the Court

Whether delay in disposal of cases by the consumer forum or commission would be a ground for directing the complainant to approach the civil court?
Whether the involvement of complicated questions of law and facts would be a ground?

The main object of the Consumer Protection Act, 1986 is to provide an alternative, speedy and efficacious remedy without causing any losses to the parties to the disputes. For this, the government constituted a machinery to deal with these cases at the district, state, and center level. Consumer Forum is also an alternative forum established under the act to discharge the functions of a civil court. Therefore, delay in the disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach the civil court.

This case involves the complicated question of facts for which experts including doctors would be required to be examined and their cross-examination may be necessary, therefore also the National Commission ought to have directed the complainant to approach the civil court.

This case is based upon the negligence on the part of the doctors in giving treatment to the deceased. Whether there was negligence on the part of the doctors or not, it would depend on facts alleged to, and in such a case there is no complicated question of law involved. However, it is pointed out by the learned senior counsel that recording evidence of experts including doctors relied upon by the complainant would consume much time and therefore also the complainant should approach the civil court. As against this, learned counsel for the complainant submitted that under the Act, the commission is required to follow summary procedure.

The Ratio of the Case

According to the Act, 1986 the commission is required to follow the summary procedure, it may or may not examine the doctors or experts. It may only rely upon the statements given by such doctors or experts.

Under the Act, on the receipt of the complaint, the opposite party is required to give a written statement within 30 days or an extending period not more than 15 days which may be granted by the forum or commission. This mandatory legislative intent must be followed by the forum or commission.

The Decision of the Court

The Supreme Court held that merely because it is mentioned that the commission or the forum is required to have a summary trial, it would hardly be grounds for directing the consumer to approach the civil court. It would also be completely wrong to assume that because a summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided. The three-judge bench concluded that in no case period beyond 45 days can be granted to the opposite party for filing its version of the case.

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This article is written by Akhilandeswari Bonam, a student of Sri Padmavati Mahila Visvavidyalayam, Tirupati.

Case Number

Criminal Appeal Number 81 of 1958.

Equivalent Citation

1959 AIR 572,
1959 SCR Supl. (1)940

Bench

Kapur J.L, Syed Imam Jaffer, S.K Das.

Decided on

18 December 1958.

Relevant Act/Section

Sections 149, 302 IPC

Brief Facts and Procedural History

Mizaji, Tejsingh, Subedar, Machal, and Maiku appealed under criminal appeal number 1809 of 1957 before the Allahabad High Court against the judgement passed by the Court of Sessions at Farukhabad in sessions trial. The Sessions Court awarded the death sentence to Mizaji and other accused persons convicted for life imprisonment. The Sessions Court ordered judgement on 28 November 1957.

In this case, Rameshwar was murdered by Mizaji, (accused) on 27.7.1957. The five accused persons Mizaji, Tejsingh, Subedar, Machal, and Maiku entered into the Sukhna field with the common intention to forcibly take possession of that field at any cost even by murder them. While arguing, both the parties Mizaji triggered with his pistol which fired on Rameshwar, he fell and died an hour later. Ramsaroop, Jailal, and Israel went to the police station and made an FIR against all five accused persons.

The reason for this attack was a land issue between both the deceased Rameshwar party and the accused Mizaji party. With this issue, Mizaji and other accused intentionally tried to take possession of the field from Rameshwar.

In this case, Mizaji, Tejsingh father of Mizaji, Subedar nephew of Tejsingh, Machal cousin of Tejsingh and Maiku was a servant of Tejsingh on 7.27.1957 arrived at the field named Sukhna field with armed weapons such as pistol which was folded by Mizaji in his dhoti and spear and lathis by other accused. This field was firstly in possession of Banwari. In 1949, Banwari mortgaged this land to Lakhan Singh.

The Revenue Department exhibits records that this land was in the possession of Banwari before 1949; later it was mortgaged to Lakhan Singh in 1949. In 1952, this field was shown as being under the cultivation of Rameshwar, the deceased person.

The learned counsel contended that on 4.18.1957 Banwari sold this field to Tejsingh who made an application for the mutation in his favour, but this was opposed by the deceased and four other persons. Before this date the field was in the possession of Banwari, later the entries showing that cultivating possession of the deceased and four others were continued in 1957.

On 27.7.1957 the five accused came armed to the field with a pistol by Mizaji, spear, and lathis by the other accused. Maiku the servant of Tejsingh started to cut the jowar crop which was sown in one part of the sukhna field and later all four accused tried to cut the sugarcane crop which was sown in the second part of the field. Bateshwar PW-7 gave this information to Ramsarup who was accompanied by Rameshwar and others, they all came to the field without weapons.

Ramsarup inquired Tejsingh about the damaging of such field, they all replied that he had purchased this land. They all warned the appellants to go away otherwise they would be finished, but they refused to go then Tejsingh exhorted mizaji to fire, mizaji fired with his pistol which he was carrying in his dhoti, as a result of this Rameshwar was injured, fell and died later an hour.

The Sessions Court acknowledged the evidence and judged that Mizaji was convicted for the death sentence and the other four accused persons convicted for life imprisonment. The accused persons appealed to the High Court against the Sessions judgment.

The High Court has found that the appellants had gone prepared to murder if necessary in the prosecution of their common object of taking forcible possession of the land, it acknowledged the evidence given by Matadin and Hansraj and accepted the judgement given by the Court of Sessions.

Issues before the Court

Whether the murder was committed likely in the prosecution of the common object?

Whether section 149 of IPC is applicable to this case?

Findings of the Court

The evidence was given by Matadin and Hansraj that when the Rameshwar party arrived at the field the accused asked Ramsarup and his companions to go away otherwise they would finish all of them. When the deceased refused to go away, Mizaji fired with his pistol. Then Rameshwar was injured and died an hour later. That finding would indicate the extent to which the accused were prepared to go in the prosecution of their common object which was to take forcible possession of the Sukhna field.

The High Court also found that this case fell under the second part of section 149 IPC because of the weapons with which the members of the unlawful assembly were armed and their conduct which showed the extent to which they prepared to go to accomplish their common object.

Ratio of the Case

The evidence of Hansraj and Matadin shows that all the accused persons were likely to be committed to accomplishing the common object of forcible possession. From this conduct, the members of the unlawful assembly were prepared to take forcible possession at any cost, and the murder must be held to be immediately connected with the common object and therefore the case falls under section 149 IPC and they all are guilty of murder.

Decision of the Court

The High Court and the Sessions Court awarded a death sentence to Mizaji and conviction of life imprisonment for the other four accused persons. The Supreme Court considered the evidence of witnesses and accepted the judgement of lower courts. It dismissed the appeal filed by Mizaji and others.

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This case brief is prepared by T.Preethi, student at government law college, Tirunelveli.

Court

HIGH COURT OF CALCUTTA

Bench

JOHN LORT WILLIAMS AND G.D.Mc NAIR

Citation

AIR 1933 CAL.893

Decided On

21 JULY, 1933

Relevant Section

312 / 511 IPC

Facts and Procedural History

COMPLAINTANT-

she was 20 years of age and had been married and divorced by consent
she is living in her father’s house and use to sleep in the cook shed

APPELLANT-

he is neighbor of the complainant
had lent money to her father
he is married and has children

CASE DETAILS

The appellant was convicted under section 312/511 of IPC of an attempt to cause a miscarriage. According to the complainant, the appellant gave her presents and promised to marry her as a result of which they had intercourse and she got pregnant. She requested him to marry, but he refused and asked her to take drugs to procure a miscarriage.

On a night he brought her a half filled bottle with red liquid and a paper packet containing a powder. She tried taking the powder and found that it tasted salty and strong. Thus, she spat it out and didn’t try the liquid. The very next day when the appellant came, and found that she hadn’t taken the thing which he gave her the previous night. So forced her to take them, but she refused as she was afraid of losing her own life, she even said that the powder caused irritation in her tongue. But, he didn’t lend a ear to that and forcefully held her by her chin to pour the liquid, but she snatched the bottle and screamed loud enough that her father and neighbors could hear that. As they approached the place, the appellant fled.

Issues

Whether the appellant was liable for the attempt to cause miscarriage to the complainant?

ANALYSIS

The powder that the complainant consumed had copper sulphate, but the quantity of that was not ascertained.
According to the medical evidence, copper sulphate has no direct effect on the uterus and not harmful unless taken in sufficiently large quantities, when it may induce abortion.
Finally no poison was detected in the liquid

Arguments of the Parties

The complainant did want a miscarriage as she herself took the drugs, but was afraid of the side effects to herself. This projected that she was herself a wrong doer.
It was contended that “attempt” means if the said crime is committed then the person would be charged for the said offence, but in this case, the facts says that , it doesn’t constitute to an attempt to cause miscarriage as the amount wasn’t sufficient enough. Thus, this can’t be termed as attempt to cause miscarriage, so the appellant can’t be convicted.

Judgment

As per the facts of the case the appellant can’t be convicted of attempt to cause a miscarriage. What the appellant had done doesn’t constitute to the commission of the offence of causing a miscarriage. Neither the liquid nor the powder is harmful enough to do the act and cause miscarriage. The appellant failure was not due to a factor independent of him to cause miscarriage under section 511 of IPC, there he was acquitted.

Ratio

Judgment was given on the favor of appellant, they haled that the appealing party’s failure was not because of the factor autonomous of himself but because of the external reasons that are the force of failure was independent in itself.

Moreover, the attempt should be towards the commission of an offence. In this way, the conviction and sentence must be set aside and the appellant ought to be acquitted. Consequently, the action is brought under the IPC sections 312/511

Learning Outcomes

Merely an act done with only the intention to commit an offence which was unsuccessful couldn’t possibly result in the completion of the offence. But an act “towards the commission of the offence; that is to say the act remains incomplete only because there is something remaining in order to complete, which the person intending to commit the offence is unable to do, by reason of circumstances independent of his own volition.

In this case it can’t be said that the complainant did something towards the commission of the offence. The offence that she committed was “administration of harmless substance”. The appellant intended to administer something capable of inducing a miscarriage. As the evidence stand, he administrated a harmless substance. This can’t amount to an act towards the commission of the offence of causing miscarriage.

This case states that a mere intention followed by preparations doesn’t constitute to a crime and doesn’t provide sufficient ground to question someone and hold them liable. Attempt along with proper execution and completion of that particular attempt is required in order to hold someone liable for an offence. In addition to that, the aggrieved party’s conduct helps in understanding the facts of the case in a better way particularly in a case like this.

RELATED CASES

Queen empress vs. Lux man Narayan joshi [1900 Bombay]
R. Vs. Collins, 1864 Cockburn

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In this article T.Preethi, student from government law college, Tirunelveli, writes about what the doctrine of estoppel is, its types and scope.

INTRODUCTION

Estoppels in the legal sense, is a principle that prevents someone from giving false evidence by holding then back from not making any contradictory statement in the court of law. This doctrine is basically to prevent the commission of fraud by one person against another person. A person will be held accountable for false representation made by him either by word or act under this doctrine. Section 115-117 of the Indian evidence act deals with this doctrine.

DEFINITION

Section 115 of the Indian evidence act interprets estoppels meaning as – when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit on proceeding between himself and such person or his representative to deny the truth of that thing.

In simple terms, estoppel means that, a person can’t deny, declare, or contradict a statement as a false one that was previously made by him in the court. This particular doctrine is steep in matters of equity and good conscience. Equity won’t allow a person to contradict his own statement; rather it would “estop” him from denying his previous declaration, act or representation.

Estoppel is based on the legal maxim ‘allegans contraria non est audiendus”, which means, a person alleging contradictory facts should not be heard”. Under this doctrine, the fact presumed is taken to be true, but it is not against the entire world, just the particular party.

This is a complex legal notion, because it involves several essential elements to such as

A statement that is to be acted upon
Acting upon it, believing it to be true
Resulting detriment of the actor.

Estoppel is basically a rule of civil action and has very limited applicability in criminal matters.

Principle

Estoppel is based on the principle that some duty should exist. The section that when a person has by his

Declaration
Act or
Omission

Has intentionally caused or permitted another person

To believe the matter to be true and
To act upon such belief

Then, neither the person nor his representative will be allowed to deny the truth of that thing in any suit or proceeding between himself and such person or his representative.

To invoke this doctrine, certain conditions are to be satisfied. Those conditions are

The representation should be made by one person to another person
The representation should be made as to the facts and not laws
The representation should be made to an existing fact
The representation made should be in a way, Such that the other person believes it to be true.
The person to whom the representation was made, should experience a loss/ suffer a loss by the representation

Difference between Estoppel, Res Judicata and Waiver

Difference between estoppel and res judicata

Sl.no	estoppel	Res judicate
1.	This is a rule that prohibits one from contradicting to that which was earlier said by him in a court	This principle prohibits the other courts from deciding on the same matter that was already decided by a competent court
2.	This is based on the rule of equity which is natural law of the land	This has been recognized as a legal procedure by the law
3.	This looks into aspect such as equity, justice, and good conscience	This deals only with the public policy
4.	This arises out of the words, acts or conduct of a party	This arises out of the decision taken by the cases that had already been decided by a competent court.
5.	This has been incorporated from sections 115-117 of the Indian evidence act,1872	This principle has been incorporated under section 11 of the civil procedure code.
6.	Estoppel is implied through the actions or conduct of the parties	This is based on previous decisions given by a competent court; it is claimed by the parties.

Difference between Estoppel and Waiver

Sl.no	estoppel	Waiver
1.	This can’t be the cause of action although it can facilitate or aid the enforcing of a cause of action by preventing the defendant from not denying what was earlier said by him	This is contractual and it is an agreement to release somebody from an agreement by waving the previous set of policies or to assert a right. Waiver is a cause of action.
2.	The person injured will have prove the loss or harm occurred	There isn’t any requirement in waiver
3.	There isn’t any necessity for the party to know what the truth is or have the knowledge of the reality	The parties involved in a waiver must have knowledge about the real facts and they should know the truth
4.	There are situations where acquiescence would amount to estoppel	While in waiver , along with acquiescence, some act or conduct Is also necessary
5.	Doctrine of estoppels is used as a defence in the court of law and not as a cause of action	This can be used as a defence for claiming damages.

Kinds of Estoppel

There are different kinds of estoppel. They are

Estoppel by matter of record
Estoppel by deed; and
Estoppel in pais

Estoppel by Matter of Record

It is part of records of the court; it is narrative and the proof for the proceeding. Estoppel by records is a result of judgments by the competent court. This primarily is concerned with the effect of the judgments and their admissibility in evidence. It is the final decision and the parties, their representatives, executors, etc all are bound by that. This doctrine ‘estops’ the parties from raising another suit regarding the same matter of fact after the case has been closed.

There are certain situations where estoppel by records arise, such as

When the disputes on the facts have been decided by the tribunal and the same dispute arises again in matters that are subsequent to the first one, between the same parties.

When the issue resolved by the judiciary, comes into questioning in the subsequent proceeding between the same parties.

When an issue on the facts, is affecting the status of the person or thing, has been determined in a manner such that in the final decision it be included as a substantive part of the judgment in rem of the tribunal that has been authorized to decide the particular case. This must take place when the same issue comes directly to question in subsequent civil proceedings between any parties.

This judgment is of two types

Judgment in rem
Judgment in personam

Judgment in Rem

The decree delivered by a competent jurisdiction court, tells about the status of the person or thing, it is generally conclusive upon all persons.

Judgment in personam

This type of judgment is binding on the parties and their privies and determines the rights of the parties to a suit or the proceedings.

Estoppel by Deed

The parties here solemnly enter into an agreement deed as to certain facts; neither the party, nor his privies claiming through or under him are permitted to deny such fact. Application of this rule is subject to certain qualifications. They are

The rule applies only between parties and privies and only in action on the deed.
No estoppel arises upon recitals or descriptions which are either immaterial or not intended to bind
No estoppel arises where the deed is tainted by fraud or illegality.
A deed which can take effect by interest shall not be construed to take effect by estoppel.

Estoppel in Pais by Conduct

Estoppels in pais is “in the country or before the public”

Estoppel in pais arises from

Agreement or contract and
An act or conduct of misrepresentation which has made a change in the position in accordance with the intent of the party to whom the estoppel is alleged.

To apply these estoppels , a person must have by his word pr act should make the other person believe that it is a fact and make him act on that belief in a way he would not have done if he had known the facts.

Equitable Estoppel

If a person tries to take legal actions that would contradict with the statement, acts or claims that were previously given by him, this principle would restrict him from doing so. Thus, this principle would stop the plaintiff from bringing a suit against the defendant who acted according to the order of the plaintiff.

Proprietary Estoppel

This principle is brought in cases where land or property is involved. In order to claim right under this, the following things have to be proved.

The representation has to be made
The party should have believed it to be true and acted upon the same
The party should have suffered a loss as a result.

Promissory Estoppel

If the person/ party had made a promise or assurance by word or act, with the intention to affect the legal relationship between them. Once, the other party takes the words into consideration and acts on it, then the one who made the promise can’t revert the relationship as if no such promise or awareness had been made by him.

This doctrine evolved by equity in order to present injustice. This is premised on the conduct where a party makes representations to the other party, in order to make him act upon. The supreme court of India, held that in order to invoke this doctrine, a clear, sound, and positive foundation must be laid by the party in the petition itself.

Issue Estoppel

The effect of this doctrine in a criminal proceeding would come into picture only if the previous and subsequent proceedings were also criminal prosecution. This principle says that even if the court has made a decision the relitigation of the issue would be prohibited on a different course of action involving both the parties from the very first case.

Estoppel by Silence and Acquiescence

When a person owes to another person to speak or act, and he fails to perform and remain silent. Then such a silence would work as an estoppel against the former. But there is no need for speaking, no estoppel can arise. A man is bound to speak in certain circumstances, but if he fails to do so and remains silent, it will be decoded as if he has openly consented to what is said or done and has become a party involved in that.

If a person just stands by while his right is being infringed by another person, the rule of estoppel by acquiescence applies. Estoppel by acquiescence in these matters is applied under the following conditions.

The later must be mistaken as to his legal rights
The later must expend money or do some act on the faith of his mistaken belief
The former must known his own rights
The former must be aware of the other person’s mistaken belief.
The former must encourage the other in his expenditure of money or other act directly or by abstaining from asserting his legal rights.

Estoppel by Negligence

To claim estoppel on the ground of negligence, it must be proven that the party against whom then plea is raised, owed a duty to the party who raises the plea, or towards the general public of which he is one and that the negligence on which it is based should not be indirectly or remotely connected with the misleading effect assigned to it but must be proximate or real cause of that result i.e., the negligence which can sustain a pleas of estoppel must be in the transaction itself and it should be so connected with the result to which it led that it is impossible to treat the two separately.

Estoppel by Recital in Deed

The recital in deed or statement or instrument is conclusive in some cases. In all cases it is considered as evidence against the parties. It is deliberately made by the parties to go against other parties.

Estoppel by Election

When a person makes a choice out of the options given to him. His choice is finalized and can’t be altered or retracted. That is the other person can only enjoy his choice and can’t take the other option as a supplement material, when his choice fails. This is based on the rule of estoppel, that is one person cant appropriate and reprobate inheres in it. This doctrine is applicable to all kinds of proceedings including civil and criminal matters.

Estoppel by taking up a Particular Position

If a party takes a particular position before the court of law, then he/she can’t approbate, reprobate and resile from that position. This is based on the legal maxim “allegans contraria non est audiendus” that is, he shall not be heard to say things contrary to each other”

Estoppels by Attestation

The Privy Council said that, the attestation of a deed does not by itself stop the person who is attesting it from denying that he knew of its contents or that he consented to the transaction which it effects and that knowledge of the contents of a deed is not to be inferred from the mere fact of attestation.

Estoppels by Consent

Consent given in a court that a controversy is covered by a judgment which has no applicability whatsoever and pertains to a different field, cannot estop the party from raising the point that the same was erroneously cited. An estoppel by consent decree can arise only when the question raised in the subsequent suit was present to the minds of the parties and was actually dealt with by the consent decree. In order to affect estoppel it is also necessary that it should appear on record that the question had been put in issue.

Scope

In order to hold a case that comes under this section. The court must find.

That the party had believed a thing to be true
That, he acted in a particular manner, as a result of the belief
That the belief the person is acting upon was brought by some representation by another person, either by declaration, act or omission, which representation was made intentionally to produce such a result.

It isn’t necessary that the party claiming estoppels should have suffered any loss or detriment. The court held that “gradually the doctrine of promissory estoppel has developed to an extent that it is no longer necessary that the party seeking to enforce the principle must have suffered a detriment.

The Supreme Court has come up with certain requirements in terms of a large number of points.

To bring a case under the scope of estoppel,

There must be a representation by a person or his authorized agent to another in nay from- a declaration, act or omission
The representation must have been of the existence of a fact and not of promise de future or intention which might not be enforceable in contract;
The representation must have been meant to be relied on
There must have been belief on the part of the other party in its truth
There must have been action on the faith of that declaration, act or omission; that is to say, the declaration, act or omission must have actually caused another to act on faith of it, and to alter his former position to his prejudice or detriment
The misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice;
The person claiming the benefit of an estoppel must show that he was not aware of the true state of things- if he was aware of the real state of affairs or had means of knowledge, there can be no estoppel;
Only the person to whom representation was made or for whom it was designed can avail himself of it. A person is entitled to plead estoppel in his own individual character and not as a representative of his assignee.

The law of estoppel doesn’t care about the movie or state of knowledge of the party upon whose representation the action took place. It cares about the position of the one who was induced to act upon a representation. The party can use an estoppel as a statement by which he was misled actually. The government is also not exempted from the equity arising out of the acts done by its citizens to their prejudice, relying on the representations as to its future conduct made by the government.

Public bodies are as much bound as private individuals in carrying out the representations of facts and promises made by them, relying on which the other people have altered their position to their prejudice. If a document is found to be void ab initio then, there would be no questions of estoppel.

The general idea about doctrine of estoppel so far is that it can be used as a defence and not a cause of action. But, the circumstances have changed it, now, under the impact of its application and extension to promissory estoppel; it can be brought as a cause of action also.

In RK Kawatra vs. DSIDC, AIR 1992 Del 28. The high court of Delhi observed that, the modern doctrine of promissory estoppel is of comparatively recent origin in the field of public law. The provisions regarding estoppel are a mere shadow of what the modern principles of promissory estoppel have come to be. The recent development in this area is that an independent action can be founded on a promissory estoppel and it is just a principle available only as a shield. It can also be used as a weapon of offence.

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This article is written by Akhilandeswari Bonam, a student of Sri Padmavati Mahila Visvavidyalayam, Tirupati.

Case Number

Criminal Appeal Number 821 of 2000, Criminal Appeal No. 160 of 2001

Equivalent Citation

2001 3 SCC 673

Bench

R.P Sethi, B.N Agrawal, and Brother Thomas. J.

Decided on

2.3.2001

Relevant Act/ Section

Section 34,149,302 IPC

Brief Facts and Procedural History

Suresh (A-1) and Ramji (A-2) appealed under criminal number 2 of 1998 before the High Court against the judgment passed by the Sessions Judge Sri U.S Tripathi. Where they were convicted for a death sentence. In the other appeal, Pavitri Devi, wife of Suresh and the sister of Ramji appealed under Criminal number 18 of 1998 against the judgement passed by the sessions court. Where she was convicted for imprisonment with the aid of section 34 IPC.
In this case, the victims Ramesh, his wife, and his children were murdered by the two accused Suresh (A-1) and Ramji (A-2) on 5.10.1996. The two accused severely injured the victims’ bodies in a very cruel manner and broke them into pieces. They harshly attacked the neck, spinal cord, and other parts with dangerous weapons, axes, and choppers. Jitendra PW-3, one of the Ramesh children, does not die that night.
The reason for such an attack on Ramesh’s (deceased) family was a land issue between the accused Suresh (A-1) and the deceased Ramesh. With this issue, Suresh along with his wife Pavitri Devi and his brother-in-law Ramji planned to murder Ramesh’s whole family.
Jitendra (PW-3) son of deceased Ramesh told before the court that while he was sleeping, he woke up with the sense of his father’s blood reaching his mouth. At that time Pavitri Devi(A-3) held his mother’s hair and pulled her up thereafter, she went outside and encouraged her husband to kill everyone.
PW-1 Lalji and PW-2 Amarsingh who were neighbors of both accused and the deceased family gave evidence that when they reached the deceased house Pavitri Devi was standing before the house of the victim and the other two accused were busy with the cruelty acts inside the house. PW’s 1 and 2 did not support the incident which happened inside the house because they didn’t see such an incident.
The trial judge acknowledged the evidence given by the witnesses and served the death penalty to Suresh and Ramji. Also convicted Pavitri Devi for imprisonment with the aid of section 34 IPC. Later, the Division Bench of the High Court considered the trial court’s decision. It acknowledged the evidence of PW-3 and it secured the evidence from the testimony of PWs 1 and 2.

The F.I.R shows that Pavitri Devi was standing on the road when the incident happened. She may have reached the place on hearing any sounds because her house is very close to the scene or she followed her husband and brother out of curiosity, because they were going with axes and choppers at that night time. It is not a necessary conclusion that she too would have accompanied the other accused.

Issues before the Court

1. Whether this case belongs to the category of the death penalty
2. Whether Pavitri Devi convicted with the aid of section 34 IPC
3. Whether the evidence of PW3 (Jitendra) can be accepted.

The evidence provided by PW-3 alleged that Pavitri Devi held his mother’s hair and pulled her cannot be accepted because no other witness is supporting this and also PW1 and PW2 have not supported the version of PW3.
The conviction of Pavitri Devi under section 34 IPC was challenged before the Court. The learned counsel for the state contended that she was also present at the scene of occurrence and she has the common intention along with the two accused. If she does not have such a common intention, she may try to deter such murders because the two accused are her husband and brother.
The ambiguous situation raised the meaning of section 34 IPC. The Court discussed and also referred to many previous cases to this. However, the prosecution had not succeeded in proving that A-3Pavitri Devi shared the common intention with the two accused.
The Constitution Bench in Bachan Singh vs the State of Punjab restricted the death penalty to the rarest of the rare cases in which the lesser alternative is unquestionably foreclosed. Therefore, the court held that we cannot persuade ourselves to hold that this is not a rarest of the rare cases in which the lesser alternative is unquestionably foreclosed.

The Ratio of the Case

The trial court awarded the death sentence to the accused by considering the witnesses of PWs 1,2 and 3 and also convicted A3 Pavitri Devi with the aid of section 34 IPC. The Division Bench of the High Court accepted the evidence of child PW3 and secured the witness of PWs 1&2 and it did not quash the trial judge’s decision
The High Court also contended that the death penalty shall be awarded to a rarest of the rare cases. The High Court concluded that a person shall not be convicted with the aid of section 34 IPC merely because of his presence at the scene of occurrence without doing any act or carrying a weapon.
Reference cases:-
• Aydroos vs. Emperor
• Barendra Kumar Ghosh vs.King Emperor
• Mahabub shah vs. Emperor
• Pandurang vs. State of Hyderabad
•State of U.P vs Iftikhar Khan, 1973 1 SCC 512.

The Decision of the Court

The High Court held that this case is not a rarest of the rare cases to grant death penalty and it justified that Pavitri Devi (A-3) did not share a common intention with the other two accused persons. By her mere presence near the scene of occurrence in the absence of other evidence, we cannot hold her guilty with the aid of section 34 IPC. The appeal of the state filed against Pavitri Devi has no merit and has thus rightly been dismissed by Brother Thomas, J. The Judges R.P Sethi and B.N Agrawal agreed with the Thomas, J judgement

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This article is written by T.PREETHI, a student of government law college, Tirunelveli. In this article the student had discussed about whom an accomplice is, the evidence provided by an accomplice and its applicability in a trial.

INTRODUCTION

Accomplice is a person who knowingly, voluntarily and with a common interest unites with/gets along with the principal offender in committing a crime. He is some way or the other concerned or associated with the commission of crime. He/she is guilty of complicity in the crime charged, either by being present in that place and aiding or abetting it.

An accomplice may assist or encourage the principal offender to commit a crime. He/she may not be present in the place when the actual crime is committed. However, if a person is present in the place of crime without any criminal intent, then that person won’t be considered as an accomplice, no matter how reprehensible her/his inaction.

An accomplice is usually subjected to the same degree of punishment as the principle offender. In legal terms- an accomplice shall be a competent witness against an accused person; and a conviction Is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.

The evidence by an accomplice might be lacking confirmation or evidence and seems to be untrustworthy because, he is also a silent part of the criminal act, yet it will be taken into consideration as they help to form the basis for a conviction under important circumstances, because it isn’t a easy job to convict the main accused without having enough resources. Though evidence of accomplice lack trustworthiness, it helps in detecting a crime, solving it. Therefore, it is treated as a beneficial and invaluable tool.

Accomplice

Who is an accomplice?

There isn’t any definition for the word “accomplice” under the evidence act, thus it is taken in an ordinary/ normal sense. In general terms he is a person concerned in the commission of a crime. Partner in a crime or associated with the criminal act with guilty intent.

A testimony of an accomplice is usually doubted for its trustworthiness and can’t be used against another accused. The reason why the testimony of an accomplice needs a proper confirmation is that

First of all, he might shift guilt from his side to other
Second of all, he is also a guilty person.

But under one circumstance it will be considered; that is if at all he turns into an approver, on his own will, he will be considered as a criminal who is providing evidence and supporting the prosecution with a promise of pardon and hope of getting his freedom. The approver’s testimony should pass the double test;

Firstly, It should be reliable
Secondly, It should be sufficiently corroborated

An accomplice can’t corroborate himself; contaminated evidence can’t lose its taint by repetition. He is a particeps criminis. However, in two circumstances a person will be held as an accomplice

A receiver who receives a stolen property- he will be treated as an accomplice of the thieves on a trial for theft.
The person who was an accomplice previously on trial are deemed to be an accomplice for committing the crime of the similar type or identical type. On another occasion be admissible to prove and intent of the accused in committing the offence changed.

Accomplice Witness

An accomplice will be considered as a witness as far as he Is not co-accused with the other under trial in the same case. An accomplice becomes a competent witness by accepting the pardon under section 306 CrPC and will be examined like any other witness on oath. Article 20(3) of the constitution of India, states that no accused shall be compelled to be a witness against himself. But an accomplice on his own and accepting the pardon will be a competent witness under the condition of true disclosure, in his own interest and isn’t compelled to give self-incriminating evidence. Therefore, a pardon accused need to fully disclose everything about the crime and if he fails to do so, he’ll be tried for the offence that he was originally charged for and his own statement may be used against him under section 308 of CrPC.

Competency of a Witness

Section 118 of the Indian evidence act says that any person is competent to be testified unless they are

Not able to understand the question put in front of them
To give answers to the questions owing to

Their age

Disease in mind or body

As well, under section 133 competency of an accomplice to be a witness is, he/she should be co-accused under trial in the same case.

Accomplice as Approver

An accomplice can be taken as an approver also. An approver is a person, who has been tendered pardon by the court on a primary condition that he’ll disclose the whole circumstances of the case. In Ravindra Singh vs. State of Haryana the court held that an approver gets his immunity so, he is entitled to prove his credibility in court. This is fulfilled by

Firstly, if the incident he relates involves him in the offence and appears intrinsically to be a natural and probable catalog of events that had taken place.
Secondly, the story that is given by the approver so far as the accused on trial is concerned should implicate him in such a way that it gives a conclusion of guilt beyond a reasonable doubt.

Accomplice in Sexual Crimes

The supreme court in Rameshwar kalian Singh vs. The state of Rajasthan, laid that, in case of rape, the prosecutrix can’t be treated as an accomplice as an accomplice. The court had insisted the need for corroboration of the evidence given by the prosecutrix as a matter of practice, but as a matter of fact, the evidence act does not say anything of this sort.

Need for Corroboration

Reading section 133 along with section 114 (b) gives a crystallized view about the issue involved with respect to the accomplice evidence. Therefore, even If a communication can be based on uncorroborated evidence of an accomplice, but as a rule of prudence, it is not safe to rely on evidence that lacks confirmation. So, judges and juris when dealing with such cases should be extremely cautious and should take extreme care while considering uncorroborated accomplice evidence.

Nature and Extent of Corroboration

The Supreme Court has laid down four principles with regard to nature and extent of corroboration. They are

That it is not necessary that there should be independent confirmation of every material circumstances in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction; all theta is required is that there must be some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it.
That independent evidence must not only make it safe to believe that the crime was committed, but must in some way reasonably connect or tend to connect the accused, with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime.
That the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another.
That the corroboration need not be direct evidence that the accused committed the crime- it is sufficient if it is merely circumstantial evidence of his connection with the crime.

The courts while taking evidence provided by an accomplice must look up with great suspicion, because it could be decisive in securing conviction if it is found to be trustworthy.

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This article is written by T.PREETHI, student from government law college, Tirunelveli. In this article the student had explained about the torts in domestic relations and laws relating to its evolution.

INTRODUCTION

Relation had been evolving and the torts under this arena deals with family’s inner working. The evolution in this tort hasn’t only shaped the way families may collect for damages or the interference to the family unit itself resulting from tortious conduct;

This has framed the way husbands, wives, kids and legal guardians are seen as legal entities. Also known as “doctrine of legal entity”

The natural law identified the concept of family as a unit of government with the husband, physically the stronger, as the head, children and wives were treated as chattels and functioned under the man’s proprietary rights.

Prior to 1990s the courts had sustained the right of a wife to sue her husband for tort against her separate property. But, in the 1990s several advances in family law came up and gave women and children the legal rights to act as a distinct legal entity from their spouse/ father.

Earlier in family law, a tort was recognised as a similar right to sue much like the secondary liability, in which a superior/ the head act on behalf of his/ her inferior/ subordinate. The husband or father whoever was the head recovered the damages for injuries to the members of his family from the tortfeasor under the proprietary rights. The father or husband could recover for his family on the grounds of loss of “services”. ‘Service’ includes household chores namely cleaning, childcare, companionship, and other responsibilities that no longer available from the wife or child.

Between Husband and Wife

If a man commits any tortious act against his wife or he body, he is no longer exempt from the liability to her on the ground that he vowed at the alter to “love, cherish and protect her”. The personal liability between husband and wife can be dealt with two scenarios.

The husbands liability for wife’s tort and;
The action between the husband and wife

The Husband’s Liability for Wife’s Tort

It was impossible for a spouse to be civilly liable to the other for an act which would be a tort in the absence of a marital relationship between the two. This was removed after the introduction of married women’s property act, 1882 and the land reform (married women and tortfeasor) act, 1935. These acts expressly gave the married women separate legal estate, with the rights and duties necessary to its maintenance.

It also opened the way either to sue or to be sued as an individual. However, if the parties are jointly involved in a tort, they’ll be jointly held liable. In case of joint tortfeasors, the one (tortfeasor) who paid the full amount of damages for the wrong, couldn’t claim contribution from the others. This liability was abolished on the introduction of The land reform (married women and tortfeasor) act, 1953. The law changed to the effect that when a partner sues a third party, the other one can claim contribution from the other spouse who was a joint tortfeasor.

Action Between Spouses

Under the common law, there was no action for a torn between husband and wife. If one of the spouses commits any tort, the other party can’t sue the one who committed the tort.ie; neither the husband nor the wife can sue the other. This was changed after the introduction of married women’s property act, 1882. This gave the women, right to sue her property. Property includes actions which are given in section 24 of the act. The women right to sue for property under this act, but it did not give her rights to sue her husband for causing personal injuries. But after

CURTIS VS WILMAX (1948) 2KB 474 (CA) people agreed with McCardie’s view that a thing in action dissented from his decision that “thing in action” as used to define separate property in section24 of the act was used in a limited sense. Accordingly, a wife can now sue her husband for a personal tort.

In BROOM VS MORGAN (1953) IQ.B.597 case, it was held that, if a husband commits a tort against his wife in the course of his employment of his master and the master was held liable for the same. DENNING.L.J observed that if the servant is immune from an action at the suit of the injured party owing to some positive rule of the law and the master is thereby absolved. The master’s liability will be his own liability and stays with him, notwithstanding the immunity of the servant.

The rule of prohibiting spouses from taking action between them has been taken back by the law reform (husband and wife) act, 1962. After this act, the husband and wife can sue each other like any other party. This act places a restriction on action during the marriage by one spouse against another and the court gave power to stay the actions if it appears that no substantial benefits will accrue to either party from the proceedings or it can be more conveniently disposed under section 17 of the married women’s property act, 1882.

In India, the capacity to sue and be sued is governed by their personal laws. Further, the constitution of India removed all anomalies of marital statues and personal capacity present in common law.

Parental and Quasi Parental Authority

Parents and the persons in charge have the right to administer the punishment on a child to prevent him/her from doing a mischievous act to him and to others. As per law the parent, teacher or guardian who has lawful control over the child or a younger person is allowed to administer the punishment on the child. Parents have the right to delegate their authority to the teacher when the child is sent to school. Such a delegation warrants the use of reasonable punishment only and if there is excess use of force, the person to whom the authority was given may be held liable for assault, battery or false imprisonment, as the can may be.

Torts in the Family

In the early period, the right to sue under family law was, more similar to that of the tort law, where the superior acts on behalf of the inferior/ subordinate. As said earlier, the damages were recovered by father/ husband under the ground loss of “service”.

Vicarious Liability

The system considers a family unit as a collective identity, rather than separate legal identities of the parties. The interests and relations of the family are considered proprietary to degree and by right. Therefore, if there is any interference or intervention that change, infringe or jeopardize the unit is considered as a tortious act under family.

Interference with Family Relations

Family tort in domestic relations are quite complex as the structure of the family and its working are after at the core of arguments put forth by the either parties. Tort in domestic relationship can be between husband and wife or parents and children. This may also include vicarious liability and negligence of the parent or legal guardian for torts committed by minor under the guardianship of an adult.

Injuries to Family Members

Superior parties being held liable for the actions of the subordinate parties is vicarious liability. Thus, a tort against the legally guarded will get vicariously transferred to the superior party for litigation purpose. In terms of domestic relations, parents are responsible for their children’s act, this also extents to legal guardians as well for the juvenile wards.

CONCLUSION

In the eyes of law, tort is a civil wrong, where one person infringes the duty owned to another one, and the duty arose just because of the existence of the relationship. It can be established that rights and liabilities doesn’t get affected by marriage.

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