This case analysis is written by Shivani Kumari, a student of Lloyd law college, Greater Noida.
Case Number
Civil Appeal Number 91 of 1972.
Equivalent Citation
1 SCC 118″, 1986 AIR 411
Bench
D.P. MADON
G. L. OZA
Decided on
29th November 1985
Relevant Act/ Section
Code of Civil Procedure, 1908 order XXII Rules 1 and 11 read with section 306 of the Indian Succession Act, 1925
Brief Facts
Ezhuthassan (hereinafter referred to as the appellant) filed a case in the court of a subordinate judge claiming a sum of Rs. 5,500 from Mr. Nair (hereinafter referred to as the respondent) as damages for defamation. The Trial Court dismissed the suit with costs. The Appellant thereupon filed an appeal in the District Court of Palghat. The District Judge allowed the appeal and passed a decree awarding to the Appellant Rs. 500 as damages and proportionate costs both of the said appeal and suit. The respondent then filed a second appeal in the High court of Kerala and the appellant filed his cross- objection thereto. The High court reversed the decree of the Appellate Court and dismissed the Appellant’s cross-objections as also the suit directing the parties to bear their own costs throughout. As the decision of the high court was against the appellant, and he being not satisfied with the same, he filed an appeal by special leave granted by the Supreme Court. During the pendency of the appeal, on 16th May 1983, the appellant died leaving his two grandsons and granddaughters as his only legal heirs and representatives. On 4th November 1985, one of his grandson and granddaughter filed a civil miscellaneous petition before the court to bring all four of them on record of the appeal in place of the appellant. As the application was filed beyond time, they filed another civil miscellaneous petition no. 43066 of 1985, to condone the delay and to set aside the abetment of the appeal.
Issues before the Court
Whether the death of the appellant will abate the Appeal
Whether the delay in filing civil miscellaneous application by the grandchildren of appellant for setting aside abatement will be excused
The Ratio of the Case
The appeal was filed to enforce the right of the appellant to sue for damages for defamation. The appellant died during the pendency of the appeal having his rights did not survive his death. Also had he died in the pendency of the suit or his first appeal to the district court, it would have been equally abated as it did by the hon’ble Supreme Court. Because he had succeeded in the first appeal, had he died during the pendency in High Court, the appeal would not have been abated.
The Decision of the Court
The Appeal is dismissed as having abated. The civil miscellaneous petition filed by the appellants grand-children were also dismissed as not being maintainable. The legal representatives acquired no right in law to be brought on the record in the appellant’s place and stead. There is also no order for the cost of the appeal and miscellaneous petitions.
This article is written by Bhavna Arul, a fourth-year law student from Symbiosis Law School.
INTRODUCTION
Non-Government Organizations are formed with the intention of solving socio-economic issues in a country. They can be in the form of a Trust, Company (Section 8 company) or a Society. These organizations often get a tax exemption as the finances of these organizations are directed towards benefitting the public in the same manner the government utilizes taxes. An NGO to be recognized by the tax authorities as an NGO must register itself under S.12A of the Income Tax Act.
Even charitable works by individuals and companies are eligible for tax exemption. For individuals and companies, there is a prescribed set of funds that when donated to, exempts the individual from paying tax.
Fundamental Taxing for NGO’s
All voluntary or charitable organizations as defined U/S.2(15) of the Act have the liability to pay service tax on the income received by them, except for that donation which has been specified to be ‘corpus’ by the donor in writing. However, the interest or dividend accrued on such funds can also be utilized for taxing.
As provided by the Act only 85% of the total income received by an NGO is to be utilized and the remaining 15% is accumulated for later use and corpus fund forms a part of such remaining income. And this accumulated income can be used within the next five years and if not used then shall be considered as the income of the eleventh year.
A public trust with an income of 50,000 rupees or more needs to file an annual income. Further, if the voluntary organization in question has not been registered U/S.12A of the Act and earns an income that exceeds the minimum taxable limit then its total income and the corpus fund will be taxable on the amount excess. Any organization not registered under S.12A is not considered as an NGO by the Income Tax Act and hence no relaxation in tax is given to such organizations.
In addition to all these, what has been made taxable are the kind of anonymous donations made by any organization or institutions or individual to a charitable organization at a rate of 30%. However, the Constitution of India has made such donations to religious institutions non-taxable.
Rules Applied During Profit
When the revenue of the NGO exceeds its expenses, then such organization is deemed to earn a profit. Generally, NGOs work with the plan of utilizing most of their funds. It is rare for an NGO to be making profits as it fundamentally clouds the idea of an institute working towards socio-economic development. Profits earned by NGOs can be channelized in the most effective way if such an idea is desired for.
The surplus income can be utilized to carry on activities towards the fulfilment of the objective of the NGO. The surplus can either be carried forward to the succeeding years without any kind of limitation or accumulated for a specific purpose. However, the DTC proposes for the utilization of the 15% of the surplus or 10% of the receipts within three years in order to restrain the accumulation for a longer period and in such case where the surplus is not utilized it shall become taxable at a rate of 15%.
Profits earned by any charitable trust from a construction project cannot be subjected to exemption under S.11, however, it is entitled to deduction under S.80B(10). However, an exception for this rule is if an NGO working for women empowerment earns profit by selling off the handicrafts made by the women employed by them shall not be made taxable.
List of Exceptions and Conditions
Category of income
Income subject to tax
Taxability
Donations/voluntary contributions
Voluntary contributions with a specific direction to form part of corpus of trust or institution
Exempt*
Voluntary contribution without such specific direction
Forms part of income from property held under trust
Anonymous donations i.e., donations where donee does not maintain record of identity/any particulars of the donor
Donation exceeding higher of:i) 5% of total donations received by trust orii) Rs 1,00,000
Taxed at 30%
Anonymous donation received by trust established wholly for religious and charitable purpose on
Taxable in the same manner as voluntary contributions (without specific direction) as above
Income from property held under trust for charitable or religious purpose
Income applied for charitable or religious purpose in India
Exempt*
Income accumulated or set aside for the application towards charitable or religious purpose in India
Exempt* to the extent of 15% of such income. This means at-least 85% of income from property to be applied for charitable and religious purposes in India as above and a balance 15% can be accumulated or set aside. [See below comment on 85%]
Income from property held under trust created for charitable purpose which tends to promote international welfare in which India is interested
CBDT either by general or special order has directed that such income shall not be included in the total income of trust
Exempt*
Capital gain from asset held under trust in whole
Net consideration is utilised fully for acquiring another capital asset
Entire capital gain is deemed to have been applied for charitable and religious purpose and hence is exempt*
Net consideration is utilised partially for acquiring another capital asset
Capital gain utilised in excess of cost of old asset transferred is considered to have been applied for charitable and religious purpose and is exempt*
*Only Charitable/ religious trust or institution registered under Section 12AA enjoys the exemption
CONCLUSION
When discussing the development of a country, we are referring to a very inclusive definition that includes development in all hemispheres i.e., social, economic, environmental and political growth. It generally is the duty of the government to look into all these aspects of development within a country. However, it often so happens that the government is unable to address certain issues and need help from external agencies.
When a country faces the problem of corruption, NGO’s are the most effective solution to continue social and economic growth in a country. NGO’s are more trusted than governments as they generally are more transparent with their work and show results. They provide quicker reliefs than governments and often on a long run also assist the government in aspects such as policy making and reforms.
To prevent NGO’s to be a cover for corruption and still promote the work done by NGO’s the Indian Tax system has cleverly devised measures to keep checks and balances on these NGO’s. The progressive tax system that India follows has led to immense development in the country and has always supported the economic growth of the nation.
This Article is Written by Manav Sony from Amity University, Kolkata. The Article talks about the Critical Analysis of the Nithari Killings which shook the entire Nation at once.
INTRODUCTION
The Novel Coronavirus Pandemic has already killed around Lakhs of people and infected across Crores of Innocent People. Till now, we do not have an exact drug or vaccine so as to fight against this virus. Each and every day we see cases rising and even deaths too. The Nation is under the lockdown phase since 24th March and has started opening gradually. The pandemic has caused a huge blow to the entire market and economy. People have even lost their jobs and some have become homeless too. People are not even able to go out of their houses safely because they are under the fear of getting infected with the virus. India has faced one of the biggest loss in the economy since 2008.[1] People are struggling to get a decent job now and even some companies are trying to either layoff the employees or cutting down their salaries so as to survive their functioning. But, one sector which has not at all given any sort of relief to the people are the Private Institutions i.e. Schools and Colleges. These institutions are charging fees like they used to do earlier. Many people have even protested against the same but still, they are not at all ready to provide any sort of relief.[2] The educational institutions have started working on an overtime basis so as to adopt a new technology known as online learning modules and classes through an online platform to the homes of their students where they can study comfortably. Most of the institutions have already started conducting classes, giving time to time assignments, clearing the doubts of the students and also giving an assurance to the parents that their children will not at all face any sort of academic loss due to this pandemic. Most of the institutions have also paid salaries to their staff and have even raised the fees with certain relaxations and no late fines at all. But, many of the parents are facing a lot of financial constraints and are compounded by these sudden fee hikes which have been announced by all the various institutions. [3]Therefore, the Union Human Resource Minister, Mr. Ramesh Pokhriyal has issued an appeal to the institutions to reduce the fees during the academic sessions 2020-21 and ease the certain burden by launching EMI Method during this lockdown period and also directed the state departments to find out a solution for this which can be helpful for the benefit of the institutions and the parents. The main factor which comes over here is that these institutions were not even ready to face this consequence. They have a lot of staff and also, they have certain infrastructural requirements which they have to keep in mind in order to survive. [4]Many institutions have launched the schemes of EMI Payment in which the parents can pay the fees on a monthly basis as per their choice. If the institutions do not cooperate with the current situation which the parents are actually facing then how can they afford the education of their children.
Steps Taken by Various State Governments
Talking about the steps, there are six various governments who have taken rigorous steps in order to make the institutions understand that they should not force to make any sort of payment in a hurry for the academic year or do not increase fees for the next academic year. There are certain states like Maharashtra and West Bengal who have asked the institutions to show sympathy or consider towards the parents while they collect the fees from them. If they are unable to pay on time, give them some time so that they can clear the dues slowly. Other states like Delhi, Tamil Nadu, Telangana and Karnataka have issued strict orders against such fees hike by the institution. Delhi has threatened action under Provisions of the Delhi School Education Act, 1973, IPC and Disaster Management Act, 2005. [5]The Telangana Government had initiated a notification which stated that non- compliance to the matters would directly result to the cancellation of the entire reputation of the school and also it would invoke serious actions against the entire management of the school under the Telangana Education Act, 1982 and also it would lead to strict cancellation of the no-objection certificate which was basically granted for affiliation to the boards CBSE, ICSE and IGCSE. Also, all the state governments that had issued certain circulars which were advisory in nature and that also moved towards enforcements under the tough basis of their discretions.[6] For example, Delhi Government whose initial order was excess in the nature of advisory purposes and also on April 22nd, 2020, after creating a reiteration in the request made quite before, clearly declared that non-compliance to the matters would be viewed very strictly. Also, the Government of Maharashtra had issued a circular on 8th May that declared that fees charged by the private institutions should not at all be hiked for academic year 2020-1 and further on. If these rules are not followed strictly, then it would definitely lead to legal actions by the government. Most of the State Governments have taken a lot of great steps in giving equal justice to the institution authorities and even to the parents while some governments have also made a great modification to their rules and regulations. Besides, the governments of West Bengal and Maharashtra who have moved to more mandatory rules, the Karnataka government has taken a really faster and equitable approach to the institutional operations in giving justice. Talking about Karnataka, they had issued a circular on 30th March stating about schools so as to postpone the process of the collection of fees and also the process of admission for the current academic year till further orders. [7]But the main thing which definitely has to be kept in mind regarding all the problems which are faced by all the institutions on the basis of providing salaries to the staff. On 24th April, the Karnataka state had issued an order that instead of paying the fees physically, the parents can pay it through the online method on one condition that the amount of the fee is given to the teaching staff as their salary and not used for any other purpose. Also, the institutions cannot cancel the admission of the students if the parents cannot pay the fees on time. [8]We all need to understand that this situation is really tough and we need to understand that removing children from schools is not at all acceptable because the situation is worst and many parents are trying to earn bread for themselves. Many state governments have given a lot of contribution is making the situations flow at a proper rate and without any sort of chaos or protests by any of them.
Conclusion
Thus, while most states have taken cognisance of the hardships faced by students and parents primarily, and have ensured that education is not affected due to non-payment of fees, the degree in response amongst state governments is varied. To sum it up, burden of running schools, meeting costs, paying teachers, paying rents, upkeep of infrastructure and keeping the student engaged in learning from homes, has now shifted to a significant degree on to educational institutions. The states may need to approach this with equal consideration for all stakeholders, as the situation progresses. Since restrictions on schools will be one of the last ones to be lifted; governments will also have to take a holistic view with regard to scheduling academic year 2020-21, and admissions to colleges and entrance examinations thereafter, while ensuring that students from the lesser privileged sections of the society, who do not have access to online education, are not unfairly prejudiced.
This article is written by Anushka Singh, a second-year student, pursuing BBA-LLB at Unitedworld School of Law, Karnavati University. This article examines the case of Laxmi Engineering Works v. PSG Industrial Institute (1995). This case was a landmark judgement on Consumer Protection (Amendment) Act 50 of 1993 (replacing Ordinance 24 of 1993) with effect from 18th June, 1993.
Case Number
Civil Appeal No. 4193 of 1995
Equivalent Citation
1995 SCC 3 583
Bench
Justices B.P. Jeevan Reddy and Mrs. Sujata V. Manohar
Decided on
4th April 1995
Relevant Act/ Section
Societies Registration Act, 1860
Section 2- Consumer Protection Act, 1986
Sections 3, 9, 13 and 20(6)- Consumer Protection Act, 1987.
Brief Facts
Laxmi Engineering Works (appellant) placed an order for supply of PSG 450 CNC Universal Turning Central Machine with the respondent. The respondent took 6 extra months to deliver. Once it was delivered and installed, several defects of the machine came into light.
The appellant brought this to the notice of the respondent who sent people to repair. However, the repair was not satisfactory and the machine broke down again. The appellant then filed a case against the respondent in the Consumer forum.
The respondent succeeded in the lower forum on the grounds of appellant not being covered under the definition of the consumer as given under section 2 (d) of the Consumer Protection Act, because Appellant bought the machines for commercial purposes.
The plaintiff filed an appeal in the SC to challenge the forum’s decision.
Issue before the Court
What is the meaning and ambit of the expression for any commercial purpose as used in section 2(d) of the Consumer Protection Act,1986?
Decision of the Court
SC held the following-
The explanation added by The Consumer Protection (Amendment) Act 50 of 1993 (replacing Ordinance 24 of 1993) with effect from 18.6.1993 is clarificatory in nature and applies to all pending proceedings.
The purpose for which an individual has purchased goods and if it is for commercial purpose or within the meaning of the definition of consumer given in Section 2(d) of the Act is always a question of fact which will have to be decided in the circumstances of every case individually.
An individual who purchases goods to use them by himself, and only for the purpose of earning his livelihood, by means of self-employment falls within the scope of definition of consumer under the Act.
Further, it was added (in agreement with the consumer forums decision) that after observing the nature and character of the machine bought by the appellant. It can be concluded that this does not fall under goods which the appellant purchased to use by himself, exclusively for the purpose of earning his livelihood by means of self-employment. Therefore, the appeal was dismissed without any costs.
Yasharth Kant Srivastava is an Advocate on Record in the Supreme Court of India. He completed his graduation from Dr. Ram Manohar Lohiya National Law University, Lucknow in 2012.
In this interview he discussed about:
His experience
Tips to clear AOR Examination
Importance of Internship for Law Students
You graduated from Dr. Ram Manohar Lohiya National Law Univerity, Lucknow, tell us something about your experience there.
Ans. The experience of a national law school is diverse. There are opportunities to not only excel in academics but also in co-curricular like moot courts, seminars, sports, etc. I was involved in badminton throughout college, part of the legal aid committee, organized college fests and graduated with distinction. RMLNLU has brilliant faculties who have helped me shape my career today.
Many students aim at clearing the AOR Examination. What would be your advice to them and how difficult is it to clear the Examination?
Ans.The AORs form part of a group of selected advocates who can file cases in the Supreme Court. The examination consists of questions related to practice and procedure specific to Supreme Court. You can only sit for the examination only after practicing for a number of years in court. The papers are -Practice and Procedure (to be read from Supreme Court Rules), Professional Ethics, Leading Cases and Drafting. It is better to start preparing early by reading leading cases and going through Supreme Court rules. These are the two most important areas for clearing the AOR exam according to me.
You interned at various Organisations, how important are Internships for Law Students from career perspective?
Ans. Law School is a perfect opportunity to have varied exposure. Every student is allowed to intern with an NGO, a government institution, lawyers and practitioners, companies and law firms. However, it is best to realize what kind of work the student wishes to pursue in the future and try to get internships in the same organization for multiple times so that it provides an entry in the organization.
How would you describe your journey from an intern to being an AOR?
Ans. Professional experience vastly differs from interning as a student. You are liable for your actions in the profession. Also, the rewards are much greater. Legal practice means you have to “practice” the same thing every day and you can get better at it, therefore when interning also, one should intern like they want to practice law.
Tell us about the most Memorable case you dealt so far?
Ans. I have participated in several constitutional bench matters like Entry Tax before 9 Judges, where the hearing lasted for 2 months, the Ayodhya Dispute, Art. 370 reference, Land Acquisition matter, etc. Each was a different experience involving different learning. However, with every small case you handle you learn nuanced nitty-gritty. It is a process.
How Important is it to read the Judgments?
Ans. As part of the practice, it is extremely pertinent to read judgments especially those of the important cases. And the judgments should be read not en passé but multiple times to understand it thoroughly. Try not to read headnotes only, read the whole thing and read the judgment in context of facts and circumstances of each case. Remember Judgments are not legislations which you have to interpret.
You have a decent experience in the field of litigation, what according to you are some of the skills required to be a good litigator?
Ans. A good litigator should have a command on the language, good court wit and immense common sense to be able to answer the court’s questions. The most important thing is Court craft and understanding of law. There are no shortcuts; you need a good understanding of law and also practical knowledge of the procedure. Again Law practice means the practice of same thing again and again.
Being a lawyer, how difficult is it to maintain a balance between Personal and Professional Life, how do you cope with the work stress?
Ans. A lawyer’s job is different from that of a salaried employee. There is no time limit on the job. But the positive is that you are your own boss and there is no limit to growth in private practice.
What’s your opinion on the NLU and Non-NLU Divide?
Ans. Anyone can get requisite education from a law school. The difference today is the fact the NLU does provide a lot more opportunities than a traditional school for activities other than academics. The brighter students clear the CLAT examination and join those institutions. However, there are several other Law schools which are adopting new technique of teaching and they are equally good but that is only one part. Real-life starts when you join the profession and thereafter there is no such divide. Ultimately whoever is more sincere in learning the craft better, will do better in life, irrespective of the fact whether they are from an NLU or otherwise.
On a concluding note, what would be your suggestion to the Budding Lawyers?
Ans. Law is a very interesting field and has lots of scopes to grow. Stay focused and set small achievable targets along the way to reach your ultimate goal. It doesn’t matter whether you come from a legal background or not. Law in India is blooming field these days. Choose your stream wisely. Do not just fall for fancy buildings and amenities. Look for faculty and library. Get into your choice of legal field as early as possible and repeat your internships in the same field. Invest in human relationship, be it in professional or personal, because these relationships will help you achieve better in life.
Advocate Anand Mishra is an Advocate on Record at Supreme Court of India. He is a member of Supreme Court Bar Association, Supreme Court Advocate on Record Association, Advocate on Roles of Bar Council of Delhi. He deals with Criminal, Civil and Corporate Litigations, Consultancy, Alternate Dispute Resolution and other auditing issues. He is also the proprietor of Devdutt consults.
In this Interview he discusses about:
His experience in the field of Litigation
strategies on clearing the AOR Examination
Impact of COVID-19 on the Legal System
You have a vast experience in the field of litigation, how would you describe your journey as a lawyer?
ANS: I did my LLB from, Campus Law Centre Delhi University and passed out in the year 2006. If I look at the past, the journey was clear to me from the first year of my LLB because I decided to move into litigation because that was the only option in the legal field which interested me and I wanted to pursue it. When I completed my LLB I joined a chamber to allow myself a vast experience in the District Court, High Courts, Tribunals and Supreme Court. In 2009 I decided to establish my own practice and so far, the journey has been a smooth one. As per me, law is a noble profession that gives space to every budding professional. I had initially thought of law to be a marathon where each person can take his sweet time and learn slowly, but once I established my practice, I realized it was a rat race to succeed. But such a race helps us compete with other sprinters/lawyers and enjoy the wonderful journey that supports such sprints in life.
As you are an advocate on record and many students aim to clear the examination of advocate on record, how difficult it is to clear the exam?
ANS: Firstly, I would like to state that no exam can be termed difficult or easy as according to me every exam is envisioned to discover certain patterns in an individual. The Advocate on Record exam, which is conducted by the Supreme court also examines this quality in prospective lawyers who will argue before the honourable court in the future. It aims to understand the competency of the people who have/will file cases in the future in the highest court authority of the country. Some of the main ingredients you need to learn to ace the exam is the Supreme Court rules, drafting and basic procedure of the court. I believe that 60-65 per cent of the preparation happens when you are in court and try to understand the nuances of the field. This may lead to several court attendances and a master course on drafting in your chamber. You must also develop a habit of reading about the duty and powers of the constitutional courts in India. If you understand what the examiner is looking for, you can ace the exam without any hurdles.
Does being an Advocate on Record impact your career in any way?
ANS: As far as creating an impact is concerned, I believe becoming an AOR let you argue in front of the highest court authority in the country. But more than that, as a lawyer you become responsible for filing your own Vakalatnama and can also appear in front of the Apex court without relying on some other AOR. This entail gives you the advantage of becoming part of the justice system and playing a key role in it. One of the biggest advantages is that, you can file cases in your name and I believe that justifies your career as a lawyer when the judge reads a draft and listens to arguments prepared solely by you.
What has been the most memorable case that you have handled so far?
ANS: I think that’s a great question to ask, but I believe any case you fight as a lawyer is memorable. In fact, I must recount an incident with my senior in the chamber I was working in, where one day he handed me a case and though I was reluctant to take it, fearing a loss he explained to me that law is not about winning or losing, as lawyers we are friends of the court who explain the procedure and law to judges for them to make a decision. What he tried to tell me was that as a lawyer it is our duty to assist the court in the best possible manner and not merely think about winning and losing.
Coming back to your question, when I started the independent practice, I handled a matter which involved section 138 of the Digital Instrumental Act before the District court. This case remains memorable for me, as it was one of the first cases I got as an Independent Advocate. Another memorable case I recall is that of Satvinder Singh which I argued in the honourable Supreme court. He was a ‘Jawan’ (defence force personal) who developed schizophrenia in the border area and was discharged from service. The tribunal and High court did not interfere with the decision of the Armed forces but in the Supreme court, it was held that the officer was entitled to a disability pension because the circumstances were caused due to aggravated problems in the border area which is one of the reasons to grant such pension. Another matter was that of a young man who passed away in an accident and the High court applied multiplier on the parents considering their age. The matter went before the apex court which held that, the age of deceased must be looked into when applying multipliers.
These are some of the memorable cases that come to mind now, but as I said before every case is memorable for me because in some or the other way in every case, I assisted the court to grant justice in the best possible manner.
Students of the law school are quite focused towards achieving good grades/results in their college life? Do you believe that good grades are important in the real world?
ANS: I think the first thing that is important to understand here is that, knowledge of law is extremely vital when you complete your education and skills are something that you will develop over the years. But, more importantly, if you are tasked with assisting the court you must possess the requisite knowledge to do so. To my young colleagues on this call, when you climb a mountain you only focus on taking the next step than eyeing directly for the peak. So, my young colleagues, you should finalise your steps in advance which makes the journey easier. For example, you should decide on what path you would like to pursue your legal journey after college, whether litigation or any other field must be your choice. But having said all of that never be let down if you don’t do well in your examination or anything else, but try hard to gain get good grades because grades are an indication of your ability to imbibe and understand what the law is.
In the wake of COVID-19, Courts have started functioning virtually, rather than traditionally. So, is this new concept of virtual Court a better alternative to the traditional Court?
ANS: Firstly, let us be clear, that we cannot compare both these courts. We must respect our institution for coming up with a virtual mode of learning so quickly in the times of the pandemic. I believe such pandemics don’t weaken the system, but expose existing weaknesses. But something that separates us from other systems, is our ability to adapt to a situation. We as lawyers have quickly adapted to a new mode of justice. I think it’s a good achievement, where our profession has become more technologically friendly and we are able to do many things since the geographical limitation has been removed. One of the most pertinent examples would be conducting this interview. I never thought, I would be using zoom for my interviews or meetings but the pandemic had led to the elimination of geographical boundaries and has given us an option of interacting on a virtual platform.
There are many graduates who passed out this year and there are many people who are quite young in the]is profession, so how far do you think COVID-19 has impacted the profession of young advocates?
ANS: To some extent, because our traditional mode of working got derailed, chambers were sealed for a certain period of time, so it has impacted young and even old lawyers in this field. I believe that in these circumstances if physical travelling is restricted you must focus on working through a virtual platform because such moments represent a challenge in life and we must be able to live up to such challenges and change ourselves to adapt to the way things will work in a COVID world from here on.
What are the things that a litigator should remember in his initial days of practice?
ANS: As a litigating lawyer I believe there are three duties which are extremely important to perform as any lawyer:
First and foremost a lawyer is the officer of the court and hence must focus on achieving justice and not merely taking up high profile cases and earning money.
A litigating lawyer also must be responsible for his fraternity and his bar.
The third and most important duty is to serve the client.
As a lawyer you are the foremost officer in the Court, your main duty is towards the Court but yes, you have a duty towards a client to represent his case, you have to maintain certain hierarchies and one thing, that law as a profession gives opportunity to every talent. I can say so, because I am myself a 1st generation lawyer and I’m not from Delhi. It will give opportunity to everyone in case you remain fair to this noble profession and you have the capacity to live like a hermit and work like a horse then I can say that sky is the limit.
Do participation in extracurricular activities like moots, seminars, paper presentations, etc, add something to the career or do they have any significant impact in the long run on someone’s career or does it leave certain kind of impression on the recruiters?
ANS: Look there are three things, first is knowledge, second is talent and third is attitude. I believe that knowledge is something you can gain from anywhere be it extracurriculars or studies. But I believe the other two qualities of talent and attitude only comes from such activities. Participating in activities like moot courts makes you a better and more confident orator and makes you realize certain inherent qualities of yours which you may not have known. I can’t answer the question as to whether such participation will impress the recruiter, because each individual has his own way of looking at potential employees. But one thing I can surely say which is that such activities will surely lead to a positive attitude in the future.
On a concluding note what will be your message to the budding lawyers?
ANS: My message will be that you are not joining an ordinary profession, you are joining a noble profession, a profession which has tradition and you have to carry forward this tradition. The soul aim should neither be to mint money and nor to gain fame, these are all by-products of hard work. You need to commit yourself towards the tradition of the bar, this is your primary duty and then all things will form. That’s my only suggestion for them.
This article is written by Tulip Das, currently pursuing BBA L.L.B(H) from Amity University Kolkata.
INTRODUCTION
“To have once been a criminal is no disgrace.
To remain a criminal is a disgrace.”
~ Malcom X
Crime and criminals are indeed looked upon in society with greatest hatred. Nevertheless, it is our society that prepares the crime and the criminal commits the same. Criminal laws have been established to curb crime and criminals. Criminal law is a broad field consisting of three major principal acts. They are: –
The Indian Penal Code, 1860
The Indian Evidence Act, 1872
The Criminal Procedure Code, 1973.
The Indian Penal Code is a substantive law while the Indian Evidence Act and the Code of Criminal Procedure come under the ambit of procedural laws. Before we start our journey from investigation to trial, we must go through a few important definitions: –
Cognizable Offence – Cognizable offence means an offence in which a police officer has the authority to make an arrest without a warrant and to start an investigation with or without the permission of a court. The police can file a First Information Report (FIR) for cognizable offences only. In Cognizable cases, police can make the investigation without the prior permission of the Magistrate. Cognizable cases are more serious than the non-cognizable cases. Normally, serious offences are defined as cognizable and usually carry a sentence of 3 years or more.
Non-cognizable Offence – They are those categories of offences, which, as per Criminal Procedure Code (1973), the Police can neither register the FIR nor can investigate or effect arrest without the express permission or directions from the court of law are known as Non-cognizable offences. These include minor offences such as abusing one another, minor scuffles without injuries, intimidation, etc.
Once the type of offence has been acknowledged, the investigation process begins. The steps which take a case from investigation stage to trial are as follows: –
THE EVIDENCE PHASE – After the FIR has been filed by the police, the investigation begins. The investigation is done in order to gather evidence by: –
Gathering of proofs or collection of evidence
Statement of witnesses
Interrogation or cross-examination
Logical examination or scientific analysis
TYPES OF EVIDENCES
Recording of Statements under sector 161 of CrPC. Where an offence is submitted under area 354, 376, or 509 of the I.P.C, the announcement of the charge must be enrolled by the Magistrate under sector 164 of the CrPC.
Gathering of Evidence in the type of Documents and others.
Recording of admissions or articulations under area 164 Cr.PC before the Magistrate.
During this examination, the Police make captures and are proceeds with the generation of the accused before the Magistrate. The charged must be presented before the justice within 24 hours of capture by the Police.
After the accused is produced before the Magistrate, the following further processes begin.
REMAND OR BAIL
Whenever an accused is arrested for any offense and the police are unable to complete the investigation within 24 hours then such accused is produced before a magistrate, requesting an extension of custody. The magistrate can grant police custody to the accused which shall not exceed more than 15 days in the entire considering of the application. However, if the magistrate does not seem to be convinced, then the accused is taken to magisterial custody. However, the magistrate under section 167 (2) (a) of the Criminal Procedure Code, may authorize the detention of the accused person. Otherwise, if he is satisfied that adequate grounds exist in doing so, he is kept in the custody of police for a period of beyond fifteen days. However, no magistrate shall authorize custody for more than: –
Ninety days, where the examination of an offence is culpable with death, detainment for a long time or detainment for a term at the very least ten years.
Sixty days, in case of examination of some other offence.
On the expiry of the 90 days or 60 days, the denounced can be allowed safeguard by applying for an award of safeguard, inside the arrangements of section 436, 436, and 439 of CrPC.
FINAL REPORT (Section 173)
The police, after finishing the examination need to document the final report under Section 173 of the Criminal Procedure Code. This marks the end of the examination and the proof gathered by the investigating team. If the evidence collected against the accused is insufficient then the police may file a report under Section 169 of the Criminal Procedure Code and release the accused on executing a bond and undertaking for appearing the Magistrate empowered to take cognizance. The last report will of 2 types.
Conclusion Report.
Charge sheet/Final report
A CLOSURE REPORT
A closure report or a conclusion report is filed when the police possess no evidence to prove that the alleged crime has been committed by an accused. After the closure report is filed the magistrate has the following four options: –
Accept the report and close the case.
Direct the police investigating team to investigate the matter further if he/ she thinks that there are still some loopholes in the investigation.
Issue a notice as he is the only person who can challenge the concluding report.
Might reject the closure report and take cognizance under Section 190 of the Criminal Procedure Code and Section 204 of the Criminal Procedure Code issue summons to the accused and direct his appearance to the magistrate.
CHARGE SHEET OR THE FINAL REPORT
A charge sheet incorporates the elements of the offense committed in a prescribed form, the complete investigation report of the Police authorities, and the charges slapped against the accused. It includes briefed facts, all statements recorded under section 161, 164 of the Criminal Procedure Code, a copy of the FIR, a list of witnesses, a list of seizures, and other documental evidence. According to Chapter 6 of the Criminal Procedure Code, on the filing of the charge sheet, the accused may be issued a summons by the magistrate to appear before him on a given date. On the filing of the charge sheet, the Magistrate takes cognizance of the matter under Section 190 of the Criminal Procedure Code. The court, if it deems fit, can reject the charge sheet and discharge the accused or can accept it and frame the charges and, post the case for trial.
BEGINNING OF THE TRIAL PROCESS
Here, the journey continues inside the courtroom. If the accused pleads guilty, he is convicted. If the accused pleads not guilty, the trial process begins.
Opening of the Case: The case is opened in the court of law by the Prosecutor, who clarifies the court about the charges put on the accused in the charge sheet. However, the accused can anytime record an application under Section 227 of the Criminal Procedure Code 1973 for releasing him for the changes provided that the charges against him are false and are not solid or adequate to continue against him in the preliminary.
Evidence Presented by the Prosecution: Witnesses from both sides are analyzed. The phases of proof include Examination of Chief, Cross-Examination, and Re-examination. To prove the guilt of the accused, the prosecution is required to produce evidence before the Court. The proof or evidence must be backed by the witnesses’ statement. This procedure is known as “examination in boss”. The magistrate has the power to issue summons to any individual as a witness or request him to produce a document before the Court. Sections of the Criminal Procedure Code 1973 applicable here are:
Section 233- Session trial
Section 242- Warrant trial
Section 254- Summons trial
Statement of the Accused: After the evidence produced by the Prosecution, the statement of the accused is recorded under Section 313 for the CrPC. An oath is not considered during the recording of any statement. The accused at that point says his or her realities and conditions of the case. Anything recorded during this process can be utilized against that person at any later stage.
Witness of the Defense: The defense, after the statement of the accused, produces oral and narrative evidence. This is under Section 233 for sessions trial, Section 243 for warrant trial, Section 254 (2) for the request of summons trial. In India, the defense is usually not required to give any proof as the burden of proof is on the Prosecution.
The Final Arguments: The last arguments are presented by the Public Prosecutor and the defense counsel. As indicated in Section 314 of the Criminal Procedure Code, any party to any proceeding may, soon after the end of his evidence, address concise oral arguments, and may, before he finishes up the oral contentions, if any, submit a memorandum to the Court presenting succinctly and under distinct headings, the arguments in support of his case. Every such jotting will form a part of the record. A copy of every such jotting shall be provided to the contrary party.
The Judgement: After hearing all the arguments, the judge decides whether to convict the accused or acquit him. This is known as judgment. This also Incorporates session trial contained in Section 235, warrant trial in Section 248, and summon trial under Section 255 of the CrPC. If the accused is convicted, then both sides present their arguments on the punishment. This is usually done if the punishment is life imprisonment or capital punishment.
After hearing the arguments from both sides, the court finally decides what should be the punishment for the accused. Various theories of punishment are considered such as the reformative theory of punishment and the deterrent theory of punishment. The age, background, and history of the accused also kept in mind while giving the judgment.
CONCLUSION
I would like to conclude by saying that crime never pays. The journey from investigation to trial is not a bed of roses. Many individuals including the Police officials, the lawyers, and the judges have a vital role to play at every stage. From investigation to the gathering of evidence to the trial, all play their roles appropriately, bravely as well as being fair and honest. When law and order start working hand-in-hand, crime and criminals very soon be wiped out of the society. We must always keep in mind that punishment is the last and the least effective instrument given to curb crime and criminals. We must make efforts to reduce crime rates and make the world a better place.
This article is written by Anushka Singh, a second-year student, pursuing BBA-LLB at Unitedworld School of Law, Karnavati University. This article analyses the case of Rustom K. Karanjia v. KMD Thackersey (1970), a case of libel (defamation).
INTRODUCTION
This is a case of defamation under tort law. The plaintiff, a businessman alleged that the article published by the defendants has caused harm to his reputation. Here, defendant no. 1 is the editor of the weekly newspaper ‘Blitz’. Defendant no. 2 is a Private Limited Company that owns the newspaper. Defendant no. 3 is the printer of that issue of Blitz and defendant no. 4 is a joint tort-feasor, who was subsequently joined to the suit as it was by his agreement that the article was published.
Case Number
Appeal No. 20 of 1965 and Suit No. 319 of 1960
Equivalent Citation
Rustom K. Kranjia v. KMD Thakersey AIR 1970 Bom 424
Bench
High Court of Bombay-
Justice D.G. Palekar and Justice V.D Tulzapurkar
Decided on
Decided on 22nd July 1969
Relevant Act/ Section
Libel- under Tort of Defamation
Brief Facts
Khrishnaraj Thackersey, a prominent businessman and industrialist of Bombay alleges to have been defamed in his reputation, character and credit by Rustom Karanjia (Journalist) who wrote an article in the weekly issue of the newspaper ‘Blitz’ on 24th September, 1960.
It was further claimed by the plaintiff that the defendant wrote this article with intention of malicious harm towards him and achieved so by publishing false statements. This matter was first heard in a trial court, where the decision was held in favour of the plaintiff. However, the defendants took this matter further, to the Bombay High Court.
Issue Before the Court
Can the defence of qualified privilege be applied in this case?
Amount damages are unfair and unreasonable.
Procedural History
This matter was first taken to the Trial Court, where the learned Judge ruled in favour of the plaintiff and denied all the defences of the defendant, in addition, he decreed a full claim of damages of Rs. 3,00,000 along with an injunction.
An appeal was further filed by the defendants in the Bombay High Court. The High Court affirmed the decision of the Trial Court, saying the article was in malice but also partially allowed the appeal by lowering the amount of damages from Rs. 3,00,000 to Rs. 1,50,000.
Decision of the Court
The Court held that the appeal is partially allowed. The decree given by the trial court was confirmed by the Bombay HC, it was passed against defendants 1, 2 and 4. However, a modification to the amount to be paid as damages was made; the amount of 3 lakhs was agreed by the Trial Court which the HC reduced to 1.5 lakhs.
This article is written by Aashika Aggarwal pursuing BBA LLB (H) from Amity University, Gurgaon.
INTRODUCTION
The consumer protection bill, 2019 was introduced in the Lok Sabha on 8 July 2019 by the Minister of Consumer Affairs and food and public distribution. The consumer protection act has made it mandatory for every e-commerce entity to display the country of origin. It was introduced by Ram Vilas Palawan.
First of all, the consumer is a person or a group of people, such as a household, who are the final users of products and services. A consumer is a person or a group who intends to order or uses purchased goods, or services primarily for personal, social, family, household and similar needs, not directly related to entrepreneurial or business activities. A consumer is one that buys goods for consumption and not for resale or commercial purposes. The consumer is an individual who pays some amount of money for the thing required to consume goods and services. Without consumer demand, producers would lack one of the key motivations to produce to sell to customers. The consumer also forms part of the chain of distribution.
Rights of Consumer
There are some consumer rights and they are as follows under:-
•THE RIGHT TO SAFETY: this right says that to be protected against the marketing of goods which are hazardous to life and health.
•THE RIGHT TO BE INFORMED: this right says that to be protected against fraudulent, deceitful, or grossly misleading information, advertising, labelling, or other practices, and to be given the facts he needs to make an informed choice.
•THE RIGHT TO CHOOSE: this right says that to be assured wherever possible, access to a variety of products and services at competitive prices, and in those industries in which competition is not workable and government regulation is substituted, an assurance of satisfactory quality and services at fair prices.
• THE RIGHT TO BE HEARD: this right says that to be assured that consumer interests will receive full and sympathetic consideration in the formulation of government policy, and fair and expeditious treatment in its administrative tribunals.
Can Consumer file an Online Complaint
One can file an online complaint about any consumer issues.
If you purchase any product and that product has some defect and after talking to the dealer from whom you had taken that product and that person is doing fraud with you, in case that person is not listening to anything, then the consumer can go the consumer forum and can file a complaint against that dealer and for that product as well.
For doing an online complaint in the consumer forum, we need to first open the main site of consumer helpline that is WWW.CONSUMERHELPLINE.GOV.IN (national consumer helpline) (NCH). This is the official website of the consumer forum and anybody can file their complaint over there. This site has a toll-free number which says 1800114000 or 14404. This website has a symbol of JAAGO GRAHAK JAAGO and it is opened every day except the national holidays. The timings for this toll-free number is 9:30 AM to 5:30 PM.
For doing the complaint online, there are some terms and conditions which are as follows: If any consumer is taking any product or services for 1 lakh Rs and after taking it you have also given them the money and after taking the products or services, if the company has done any kind of fraud with the consumer then the consumer has to pay Rs 100 to file their complaint on the official website of the consumer forum. If the products or services are of more than 1 lakh Rs and less than 5 lakh Rs, then the consumer has to pay Rs 200 to file their complaint on the official website. If the consumer is taking products or services of more than 5 lakh Rs, then the consumer has to pay 400 Rs to file their complaint on the official website of the consumer forum. This goes increases and increases with an increase in money.
Ways to File Online Complaint
There are mainly four ways to file the complaint online as well as offline. These ways are as follows under:-
1. The place where the consumer is residing and the consumer can go to nearby consumer court physically and then file the complaint against the company or the dealer.
2. The second thing is that the consumer can call directly to the toll-free number given on the website and then tell them all problems and the fraud done by the other person.
3. On the website there is a number provided for SMS and the consumer can file their complaint through SMS as well and the number will be 8130009809. After sending SMS to this number, the helpline will call you back and then anybody can tell their problem.
For registering the complaint online, one has to sign up on the website given and they will send you one OTP on the given mobile number. Then, the consumer needs to fill all the details of their problem by logging in into the website and there they need to write every single detail with timings of fraud. Once submitted, complaints are assigned an electronically generated number. This can be used to track the status of the complaint until it gets resolved.
If any consumer wins the case filed through the consumer forum, then the consumer gets great compensation from the other company. A complaint can be filed against any registered brand or service provider. The online complaint system has a dropdown menu of sectors, segments, and brands which includes all brands registered with the department of consumer affairs. Multiple complaints can be filed using the same login credentials and can be tracked online. The messages sent to the brand and consumer are also available for viewing to track progress. The complaints can be filed both in English and Hindi.
This case analysis is writte by Akshat Mehta, a student of the Institute of Law, Nirma University, Ahmedabad. In this case, he has tried to show how the concept of ‘Strict Liability’ is interpreted in certain conditions depending upon the place and circumstances.
INTRODUCTION
Any person could not be made strictly liable if his/her act is in the direction of ‘Collective paramount Interest’ or is benefiting the public at large and is the interest of the public policy.
Equivalent Citation
(1974) 1 I.A. 364 (P.C.)
Bench
Sir R.P. Collier, Sir J.W. Colvile, Sir L Peel and Sir B. Peacock
Decided On
3 July 1874
Court
Calcutta High Court
Relevant Laws
Strict Liability and Exception of ‘Vis Major/Act of God’
Facts of the Case
The tanks were used to store water for the purposes of irrigation and other agricultural related activities. The district was situated in the hilly areas and tanks were used for storing huge quantity of water since time immemorial and also these are the absolute necessity for the purpose of cultivation also such practice was followed throughout India and particularly in those hilly districts and in Zamindari of Karvetinagaram as it was lawful and governed by custom and usage. Water stored in the tanks is the primary and only source of living and farming for the ryots living in those areas.
On one such instance bulky water stored in those tanks busted and escaped thereby damaging the appellant property and destroying three bridges of the railway. Railway Company brought the suit against the defendant for the recovery of damages suffered by the company.
The defendant (Zamindar) contended that the injuries caused was not due to his negligence but it is an effect ‘Vis Major/Act of God’ and he should be absolved from all the liabilities aroused due to the act of God.
Issues Before the Court
1. Whether the defendant acted negligently in procuring and managing the water in the tanks or it comes under ‘Vis major/Act of God’?
2. Whether the defendant (Zamindar) is liable to pay any sought of compensation to the plaintiff’s sustained by them due to the bursting of the tanks?
Ratio of the Court
The court read the present case in consonance with Vaughan v. Taff Vale Railway Company, Jones v. The Festiniog Railway Company, Rylands v. Fletcher and Withers v. The North Kent Railway Company.
High Court had given its reasoning on the basis of two grounds:
1. The water stored in the tanks is used by all the ryots of the area. Hence it is in the benefit of the society and catering to the needs of ‘Paramount Collective Interest’. In this regard, the court stated that “The existence of these tanks is absolutely necessary, not only for the beneficial enjoyment of the defendant’s land, but for the sustenance of thousands of his ryots.” Therefore it is inequitable if liability is imposed on the owner of the land where water tanks were situated; rather greater obligation could be created to take care of any escape of such things which could potentially harm the neighbors.
2. Particularly in regards to the Indian conditions the water is required to be stored in larger quantities. Hence, it falls under the necessity rather and the exception to the doctrine of ‘Strict Liability’ optimistically applies here. Also, the condition of non-natural use of land varies from place to place and situation to situation.
Decision of the Court
Hence Court held that here, in this case, the exception to the rule of ‘Strict Liability’ applies and the defendant couldn’t be directed to pay the compensation to the appellants because he had taken all reasonable precautions while storing water in the tanks. The High Court dismissed the appeal of the appellants i.e. Railway Company.
