This article is written by Siddhi P. Nagwekar, a student of Karnataka State Law University’s Law School. This article deliberates on The Bar of Limitation on Torts, what it entails, its relevance, and the related statutes in India, the US, and the UK.

A brief idea on ‘Bar of Limitations’

Limitation means a legally specified time after which an action could be defeated or the ownership doesn’t persist. The Limitation Act, 1963[1] determines[2] duration of limitation. The period fixed for any suit, appeal or application by the Schedule, and “prescribed period” means the amount of limitation computed following the provisions of this Act.

Let us consider a hypothetical case where A gives a loan of 5 lakh rupees to B for two years after which B is to return the same to A. After this period lapses, there are two courses of actions that may follow:

a.     B pays back the sum of money; or

b.     B refuses/ doesn’t pay back the sum lent

In the first occurrence, there is no complication because the agreement between the two parties has been met with, but within the second case in point, B has dishonoured the agreement in question.

An ancient Roman maxim states Ubi jus, ibi remedium meaning ‘Where there’s a right, there’s a remedy’. Considering this principle, A has a remedy for his right of procuring his refund from B, binding him by the obligation.

The Limitation Act, 1963 for the balance outstanding on a mutual, open, and current account, where there are corresponding demands between the parties, sets out a provision for three years. This three-year period starts at the close of the year during which the last item admitted or proved is entered in the account; such year to be computed as within the account.[3]

Now, if A fails to do so within the given ‘limitation bar’ that’s three years for this case, A deprives himself the right to remedy, essentially meaning the right to bring legal action against B has ended.

The Supreme Court has given a concurrent ruling in the case of Rajender Singh & Ors vs Santa Singh & Ors. [4]. The apropos paragraph of the judgment reads:

“The policy inherent to statutes of limitation, spoken of as statutes of ” repose” or of “Peace”, has been thus stated in Halsbury’s Laws of England Vol. 24, p. 181 (para 130) “330. Policy of Limitation Acts. The courts have expressed a minimum of three differing reasons supporting the existence of statutes of limitation, namely, (1) that long-dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to refute. a stale claim, and (3) that persons with valid grounds of actions should follow them with reasonable care.” The goal of the law of limitation is to put a stop to disturbance or deprivation of what may have been obtained in equity and justice by lasting enjoyment or what may be are lost by a party’s own passivity, negligence, or laches.”

After this case in 1973, fast-forward to a quarter-century later, there came the judgment of N Balakrishnan vs M. Krishnamurthy[5], germane to the theme in hand. It bolstered the stance of the judiciary on the bar of limitations and emphasized its relevance:

“Rule of limitation aren’t meant to deface the right of parties. They’re meant to ascertain that parties don’t resort to dilatory tactics, but look for their remedy promptly. the intent of providing a legal remedy is to repair the damage caused by reason of legal injury/legal rights violation. Law of limitation fixes a lifespan for such legal remedy for the redress of the wrong so suffered. Time is precious and therefore the wasted time would never revisit. During the course of time, newer causes would sprout up necessitating newer persons to look for legal remedy by approaching the courts. So, a life must be fixed for each remedy. The unending period for launching the remedy may possibly cause unending uncertainty and consequential anarchy. The Law of limitation is thus founded on public policy. It’s enshrined within the maxim ‘Interest reipublicae up sit finis litium’ (it is for the overall welfare that a period is put to litigation). The motive is that each legal remedy must be kept alive for a legislatively set period of time.”

It is quite clear from the above-mentioned judgments what the bar of limitation entails.

The aims behind statutes of limitation are that of discouraging old and deceitful claims, and that of allowing estimable claimants, who are as careful as possible, a chance to be on the lookout for redress for injuries suffered. Any person seeking relief for injury was to have brought his claim within the period stated in the statute or be barred.

Starts and Stops- Accrual of the Cause of Action

To know the extent of the limitation period is not going to play out in your favour if you don’t know when that period starts to run. There are two vital points. The primary is when the cause of action first ensues. When that is will depend upon different causes of action, for tort, it’s the purpose of injury, even where that damage could also be initially minor and unapparent. When we look at the case of claims for a debt, acknowledging the existence of the debt will restart the limitation period.

The second key point is that the point at which loss could have been reasonably discovered. As is noted above, it may apply in many cases of tort and restitution.

The Bar of Limitation on Torts

Limitation periods for various torts are found on the objectives that a tort claim sought to realize besides the gravity of the particular tort in question. The remedy for breach of duty in tort is ordinarily a claim for damages, though equitable remedies also are available in appropriate cases. The key aim of tort is taken to be compensation for harm suffered as results of the breach of an obligation fixed by law. Tort seems to put greater emphasis on wrongs of commission instead of wrongs of omission. Another important aim of tort is to discourage behaviour which in good probability to cause harm.

India

Part VII of the Schedule of Limitations Act, 1963 lays down the limitation periods for torts. It gives out a table of torts, from point 71 to 92, entailing the outline of the suit, period of limitation, and time from which period begins to run. This is the single Act that provides the authority, legitimacy and aiming to match the thought of the idea of Limitation Bars in India. It’s still in the evolving stage as and when the cases appear around it.

Under English Law

The Limitation Act allows actions for breach of contract and tort, like negligence, to be brought within six years, where the  loss wasn’t apparent at the time of the tort there’s an alternate period of three years from the date on which loss could reasonably are discovered; Considering the case of fraud, the amount of limitation doesn’t commence at all until the claimant has or could reasonably have discovered the fraud;[6]

Additionally, the three-year period is given as the special deadline for personal injury actions.

The three-year period begins to run from

(a) the date on which the cause of action arose; or

(b) the date on which the injured person becomes aware (if later).

The final question on limitation is what happens when the amount of time expires without proceedings being issued. The pivotal distinction that springs up here is: does the expiry of the limitation period simply act as a bar to seeking a remedy before the courts or does it exterminate the interest protected as the right altogether? This is not based sheerly on connotations. If a defendant can assert his right in a way other than bringing a claim, most obviously by way of asserting a set-off, then that right will still have value even where the remedy is time-barred. If the right is extinguished altogether, there is hardly left anything to say. The approach adopted by English law will depend upon the character of the claim. Talking about the case of contract[7] and most torts aside from conversion[8] only the remedy is barred. In cases concerning title to the recovery of land[9] or personal estate[10], or arising under the Consumer Protection Act 1987[11] it is the right itself that gets extinguished.

Under US Law

Under 46 U.S. Code § 30106, “Except as otherwise provided by law, a legal proceeding for damages for private injury or death arising out of a maritime tort must be brought within 3 years after the explanation of action arose.” There are some exceptions to it at present, primarily concerning Jones Act cases filed against the government, during which case the statute of limitations are often but 2 years.[12]

Every state has adopted its statute of limitations, which demands any personal injury suit be filed in court within a fixed time after the incident or injury. The defined limit prescribed by each state ranges from one year (in Kentucky and Tennessee) to 6 years (in Maine and North Dakota).

The “Discovery of Harm” Rule

While a statute of limitations may assert that a private injury lawsuit must be filed within a particular amount of time after an accident or injury, that period usually doesn’t begin to run until the instant when the person filing suit knew (or should reasonably have known) that they had suffered harm and therefore the nature of that harm.

An example of this “discovery of harm” rule may be a medical malpractice claim during which a surgeon mistakenly left a short-lived bandage inside the abdomen of a patient, but the error wasn’t discovered until years later, during another surgery. In such a case, the patient had no reason to understand what happened and this lack of data couldn’t be called unreasonable under the circumstances. Presumably, the statute of limitations wouldn’t begin to run until the day on which the primary surgeon’s mistake was “discovered” by the patient, instead of from the day on which the primary surgeon committed the error.

It is important to bear in mind that the delay in discovery must be one that’s reasonable under the circumstances. So, if the patient given in the above example was experiencing abdominal pain after the primary surgery but refused to find medical treatment for several years, his or her lawsuit may fairly be barred by the statute of limitations. Also, the “discovery of harm” rule will seldom arise within the commonest sorts of injury claims — those after car accidents and slip and fall incidents. This is often because such occurrences usually leave nothing to “discover” in terms of the source and nature of any harm suffered.

However, the discovery rule may apply in some death cases wrongfully.

Conclusion

Statutes of limitation reflect the policy of protecting defendants from stale and fraudulent claims. The implementation of the statutes doesn’t depend on the existence of a stale or fraudulent claim, but rather upon the amount of years laid out in the applicable statute. Statutes of limitation weigh conflicting public policies. As a result, some plaintiffs are going be denied recovery notwithstanding the severity of their injury.


[1] Enacted on 1st January, 1964, vide notification No. S.O. 3118, dated 29th October, 1963, see Gazette of India, Part II, sec. 3 (ii). Amended in West Bengal by W.B. Act 18 of 1977.

Enforced on 1st September, 1984, vide notification No. S.O. 647(C), in respect of the State of Sikkim dated 24th August, 1984, see Gazette of India, Part II, sec. 3(ii).

[2] See Sec 2(j) of Limitations Act, 1963 

[3] See Supra text accompanying note 2: The Schedule (Periods of Limitation)Part I- Suits Relating to Accounts.

[4] (1973) 2 SCC 705

[5] (1998) 7 SCC 123

[6] Section 2, 14A and 32 of the Limitation Act, 1980, Available at: <http://www.legislation.gov.uk/ukpga/1980/58/contents>

[7] Royal Norwegian Government v Constant & Constant [1960] 2 Lloyd’s Rep 431.

[8] C&M Matthews Ltd v Marsden Building Society [1951] Ch 758.

[9] Limitation Act section 17.

[10] Limitation Act sections 3-4.

[11] Consumer Protection Act 1987 section 11A(3).

[12] “33 U.S. Code § 913 – Filing of claims”. Legal Information Institute. Cornell Law School. Retrieved 09 July 2020.

Latest Posts


Archives

This article has been written by Yash Dodani, a Second-year law student at NALSAR University of Law. He has tried to explain the position of the nervous shock in tort law.  

Overview

The tort law was always considered as unwritten principles for physical injuries. The courts have earlier said that nervous shock or we say it psychiatric injury will not be entitled to any compensation. They said that in no manner nervous shock can be considered as same as physical damage. However, they were very clear that if the nervous shock is so direct to the physical damage that it can cause harm to mind, then they have allowed damages for a nervous shock as well. However, through various cases and the precedents, the courts have recognized the mental trauma as a pigeon-hole for compensation under the tort law. This article will get the reader to understand how the courts have and will consider various determinants for understanding to what extent the shock is caused and how much damages or compensation should be given to the affected party. All the guidelines are also meant to close the floodgate to the claims. Introduction

 “In the case of mental shock… there are elements of greater subtlety than in the case of an ordinary physical injury and these elements may give rise to debate as to the precise scope of legal liability”.[1] Tort law has not been made by any written codified law. Instead, it is made up of precedents in the case laws which come to the courts. Tort means a civil wrong. Tort law is made up of various forms of faults done by any individual or a group of people, may be artificial. Fault is the whole point In a tort law. Tort law tries to bring the party who suffered to the original position, as they were, prior to the happening of that very wrong. It can be something like insurance, which also has a similar motive. Tort law aims at making good the loss suffered by the plaintiff, i.e. it seeks to make the plaintiff whole.[2] The tort law does not give any punishment to the person who has done wrong until that wrong was done with wrong intentions. It majorly gives compensation to the innocent party for what losses they have suffered for the negligent behaviour of the wrong doing party. The English legal system has however often said that including nervous shock in the purview of tort law will be a big controversy. Various judges and scholars have said the results of including nervous shock in the purview of tort law will have unwanted results. This is often called as nervous shock or mental trauma. In recent years the courts have begun to move away from this terminology and have begun to talk about ‘psychiatric illnesses rather than nervous shock.[3] This article will, through case laws will bring the development of nervous shock as an area of development, the tests which are used to determine the extent of shock and also to determine the compensation and inside, close the floodgates of claims.

For many years in the English legal system, the talk to include nervous shock in the tort was rejected by the courts because of the controversial nature of it. It was argued that if any injury can’t be seen, it can’t be shown to the courts and hence the damages can’t be claimed. Various scholars tagged it as less worthy to ask for compensation.  However, with the development of the time, the courts have given recognition to the nervous shock. Lord Macmillan has given the elements that a plaintiff must prove in order to get damages for nervous shock.

  1. Duty of care;
  2. Breach of that duty;
  3. That breach caused the shock;
  4. The shock is not too remote.

Out of fear for false claims and unrestricted liability of defendants, the courts have created a number of “control mechanisms” which can limit liability.[4] It was first seen in the case of McLoughlin v O’Brian.[5] It gave a three-part test in order to restrict the compensation. The distinction between the physical harm and the nervous shock is also important and it is discussed in the case of White v Chief Constable of South Yorkshire. It also discussed the problems of giving nervous shock a recognition due to the following reasons:

  1. It said that there is a lot of evidential problems;
  2. Opening of the floodgates;
  3. The problem of posing liability on the defendant to give a lot of compensation, and will be unfair.

However, the Law Commission report in 1998 claimed that these reasons equally apply to physical harm as well. It also suggested that it is however not really possible to prove the kind of harm that the plaintiff is in- in a nervous shock.

Primary and Secondary Victims

Before we go and analyse the report of the Law Commission, it is important to understand the development of this field and how judges have placed the limitations in order to restrict the scope of the word ‘mental injury’. A very early case on this front is the case of Dulieu v White and sons, where Kennedy J gave a test to determine the liability of the defendant in a nervous shock case. The test is a two-fold test.

  1. The degree to which the shock is presented in the courts should be foreseeable and
  2. The shock must arrive from a reasonable fear that might cause physical harm.

This test made a distinction between a primary victim and a secondary victim in the sense that the party who is directly involved in an accident and has a reasonable fear of having a physical injury is a primary party and rest all are secondary victims.

But this test was reduced in the case of Page v Smith where the judges held that where the reasonable foreseeability can be proved, there “physical and psychiatric harms are not of different types, so that if the former is foreseeable, the claimant can recover in respect of both physical and psychiatric harms, even where the latter is not in itself foreseeable”. This means that the requirement for the plaintiff is to prove that they were in the purview of the physical injury and then they are directly eligible to get compensation for the nervous shock/ mental illness. But this may open the floodgates, if the nervous shock was not foreseeable.

But some well 2 decades after, the case of Hambrook v Stokes Bros[6] came where the judges said that the nervous shock can also come to the close relatives and friends of the victim and they can also claim the damages for the same. These people were said to be the secondary victims of the case. Now the judges have also included the proximity part while limiting the scope of the nervous shock liability.

The number of cases of this front were increasing at a rapid pace. Then came the case of Bourhil v Young where the counsels for the plaintiff had tried to expand the scope of the tests and were trying to establish that the person who is not at all related to the primary victim, nor is in proximity to the accident, or not even a prime witness to it, can also claim for the damages. But they were failed to do that.

So the final test for primary victims claiming the compensation under the nervous shock must prove that they were in the zone of physical danger and the secondary victims need to prove proximity and the relation between them and the primary victim.  

Control mechanism

The courts have taken different approaches to evolve the concept of nervous shock as a tort. Like the case of McLoughlin v O’Brian where the House of lords was clear that the compensation can be given in this case but the split came out while deciding the test of liability. Some judges said that the liability should not only be based on foreseeability and the following factors should also be taken into account:

  1. The class of plaintiff in the sense that the relation between the plaintiff and the primary victim.
  2. Proximity in rime and space.
  3.   the means by which the psychiatric illness was caused – it must come through the plaintiff’s own sight or hearing of the event or its immediate aftermath; communication by a third party was not sufficient.

This test was given by Lord Wiberforce and afterwards, it was known to be ‘Alcock test’ and this test was used to control the number of claims. This test was also applied a decade later in many cases one of which was the case of Alcock v Chief Constable of South Yorkshire.[7] However, by applying this test the court said that the claim could not be allowed because the above conditions were not fulfilled.  However, to my opinion, the House of Lords have taken a very narrow approach then what actually this test was. However it is also important to do so to stop the public from making such claims, but it can be allowed for those who saw a live telecast and seeing their loved once to die in front of them. The test is an ‘and’ criteria and not an ‘or’. It means that all the conditions need to be proven. One plaintiff in the Alcock case who saw two brothers of his dying, failed to prove his claim because he suffered from stress much after the incident took place.

However, the situation today is the same as it was made by the courts. These controls need to be taken into account while making claims of nervous shock. These mechanisms need to be taken into account to control the floodgates of claims.

Law Commission Reports

The law commission report suggested that the claims with regards to the secondary victims need to be restricted otherwise it would open the floodgates to the number of cases. At the same time, it should also work according to the judicial precedents and use of judicial powers to give justice to the innocent.  The law commission also said that the proximity in terms of time and space should not be used.  They said it after giving this example  “How many hours after the accident the mother of an injured child manages to reach the hospital should not be the decisive factor in deciding whether the defendant may be liable for the mother’s consequential psychiatric illness”[8] However it can be argued in both ways. However, to the floodgates argument, the commission said that the love and affection fold should be strictly used and to give more clarity, they gave a fixed list of relationships.

They accepted that the floodgate will be open by their reforms but then it said that the courts should look at the policy considerations to allow/reject those claims.  


[1] Bourhill v Young [1943] AC 92

[2] Mullany, NJ and Handford, PR (1993), Tort Liability for Psychiatric Damage

[3] Napier, M and Wheat, K (1995) Recovering Damages for Psychiatric Injury

[4] Teff, H (1983) ‘Liability for Negligently Inflicted Nervous Shock’ 99 Law Quarterly Review 100

[5] [1982] 2 All ER 298

[6]  [1925] 1 KB 141

[7] [1992] 1 AC 310

Latest Posts


Archives

This article has been written by Yash Dodani, a second-year at NALSAR University of Law. He has tried to set a distinction between ‘Offer’ and ‘Invitation to offer’.

Introduction

Contract is an area where the parties bargain with each other on terms and conditions and then have an obligation to work according to the conditions in the contract. It’s a private law where the role of the judiciary is very limited, not a law like Criminal law or taxation, where the role of State is very high. But still, the role of the state is there, as always will be in any law.

There was a confusion with regards to what is an offer and what exactly is ‘invitation to offer. And as always, the judiciary is called the interpreter of the law for some very important reason and that reason is to clarify the things as and when required. To this also the courts have given a very beautiful difference through many case laws on this front. Let me first get through the individual meaning of these terms and then set a distinction.

Offer/ Proposal

Offer or as it is said proposal has been defined in section 2[a] of the Indian Contract Act1 as under:

“When one person signifies to another his willingness to do or abstain from doing something with a view to obtaining the assent of the other to such an act or abstinence, he is said to make a proposal”.

It means that when a person says something to another that he would do something or not do something, with a view to get an assent from the other person, he is said to make an offer to the other person. For instance, A, a party says to another person X that “I would buy your cycle for a sum of 6000 rupees”. If after negotiation, both the parties agree on the sale and the price, this would become an agreement and I made an offer by saying the above line quoted.

When an offer is accepted, it becomes an agreement. In an agreement, there is an intention to create legal obligations generally. But this is not always true [see Balfour v Balfour 2] due to the nature of the relationship between the parties. If the nature of the relationship between the parties is such that the agreement would not be intended anywhere to be legally binding, that it will not be legally asked to complete. However, this position is not followed in the Indian Context. If there is an agreement which is not unlawful or illegal, the agreement will be enforced even if there was no intention to create a legal obligation. [See CWT v/s Abdul Hussain Mulla Muhammad Ali 3]

There are other conditions of an offer and in what cases the offer can become an agreement like knowledge of offer and other such things but I will not go into the details of these things in this article. It will focus more on the distinction between an ‘offer’ and ‘invitation to offer’.

General and Specific Offers

Offer can be ‘general’ or ‘specific’. In an earlier judgment, the English courts have said that the offer can not be ‘general’ [See Weeks v/s Tybald 4 ]. But after a century or so, the courts said that the offer can be in ‘general’. In Carlill v/s Carbolic Smoke Ball Co 5, the court recognized that ‘an offer can be made to world at large as well. Whereas ‘specific offer’ means that an offer which is made to a specific person(s). There can be more than one specific person involved in a contract.

Invitation to Offer

When it comes to ‘Invitation to offer’, it is not necessary that parties do have an intention to enter into an agreement. It’s upon them whether to enter or not into an agreement. It can be said as a pre-negotiation stage before an actual offer. The best example to explain it in the shop. The goods displayed in a shop might not be on a sale, but as they are on display, it doesn’t mean that they are up for sale. The shopkeeper invites the customer to offer that good for sale. It completely depends on the shopkeeper that if they are willing to sell it or not. They are not bound to sell the product at the given price tag. It’s because they have the power to reject the sale, and it is called as ‘invitation to offer’. The buyer will select the best invitation and try to further negotiate on it. In a market condition, an invitation is made by the seller and offer is made by the buyer, if the seller accepts the offer, it becomes an agreement. Intention to enter into a legal obligation is nowhere seen in an invitation, but intention generally matters in an offer.

Finally, when it comes to the difference between, it is very important to discuss the very important case law named Carlill v/s Carbolic Smoke Ball Co. A company made an advertisement in a leading newspaper that it has made a product, the consumption of which will keep away disease such as a cold. If someone after consumption of it as prescribed, will attract those disease, will get a Compensation of 100 Euros. It has also said that to show that confidence, it also deposited the said amount in a bank account. The product was purchased by the plaintiff. After consumption in the said prescribed manner, he suffered from cold and filed a suit for recovery. The company contended that it was an invitation to offer and not offer. They also contended that it was a puff advertisement. But the courts rejected the contention saying that the advertisement is not an invitation to offer but an offer itself because they have deposited the amount in a bank, they do have intention here and hence the offer was accepted when the buyer consumed the product in the said manner. The plaintiff was allowed to get the compensation of 100 Euros.

Conclusion

Thus, it is essential to understand the difference between an ‘offer’ and ‘invitation to offer’. ‘Invitation to offer’ is a step before making an ‘offer’. ‘Invitation to offer’ is given by one party, then on reaction to the invitation, the another party makes an ‘offer’, then it is upon the previous party to either accept or reject it. The person inviting an offer is not bound by any condition which he has specified at the invitation stage.

References

  1. The Indian Contract Act, 1872 [Act 9 of 2873]
  2. (1919) 2 KB 571
  3. (1988) AIR 1417
  4. 74 ER 982.
  5. [1892]

Latest Posts

ABSTRACT

The article is written by Naman Jain pursuing BBA-LLB from Bennett University, Greater Noida. This article endeavours to demystify the key concepts of force majeure and the repercussions of Covid-19 on contractual obligations. This article insights into the legal permissibility of this clause in the current scenario and highlights the elements to be considered before the invocation or while defending a force majeure claim.

“LAW AND ORDER ARE THE MEDICINE OF THE BODY POLITIC AND WHEN THE BODY POLITIC GETS SICK, MEDICINE MUST BE ADMINISTERED”
~ DR. B.R. AMBEDKAR

INTRODUCTION

The continuous spread of COVID-19 has forced the country into a conspicuous uncertainty. Global disruptions are evident in the business and commercial sector. A significant population of the world has been put under lockdown. Due to this, operations carried by various businesses have been hindered and fulfilment of contractual obligations has been greatly impacted. The disruptions in the supply chain will lead to delay, interruption, or even cancellation of many contracts. As businesses are making plans to address this international emergency, this article provides guidance to inform strategic decision making in accordance with the contractual relationships. To escape from the contractual penalties arising due to missing project deadlines, non-payment, etc as a result of the pandemic, parties to contracts are bringing word like “Force Majeure” in use.

WHAT IS ‘FORCE MAJEURE’ ?

The French phrase means a “superior force”, is a law U/S 32 and 56 of Indian Contract Act, 1872. Black Law Dictionary defines it as “In the law of insurance, superior or irresistible force. Such clause is common in construction contracts to protect the parties in the event that a part of the contract cannot be performed due to causes which are outside the control of the parties and could not be avoided by the exercise of due care”. It is a provision that protects a party in contractual agreement from liability for its failure to function the contractual obligations. It is an expressed provision in contract law which describes an extraordinary event involving circumstances beyond human control as an act of god or a superior force. Further, this clause frees both the parties from a contractual liability when some specified or uncertain events beyond human control obstruct the carrying of obligations under the contract.

As mentioned in the clause, this exhaustive list contains events like wars, riots, fire, flood natural calamities, lockouts, famines, and govt. action affecting any party to function or perform the pre-decided obligations under the contract cause its frustration or impossibility. The clause provides relaxations to perform the contractual obligations, but it does not entirely excuse a party from a contract. Moreover, it suspends the contract for the duration of that superior force. However, if this superior force continues to dominate for more than a specified period, the clause gives the power to both the parties to terminate the contract without any financial effects on either party.

Force Majeure principle is ruled by chapter 3 of the Indian Contract Act dealing with the contingent Contract. S. 32 of the act defines this Supreme power whereas S.56 is a rule of positive law which mentions about frustration. ‘Impossible’ or ‘Frustration’ is only confined to something which is beyond the control of both the parties and not to the literal impossibility to perform i.e. strikes or commercial hardships as held in the case of Satyabrata Ghose V. Mugneeram Bangur.

The Supreme Court in the case of Naihati Jute Mills Ltd. v. Hyaliram Jagannath held that “A contract is not frustrated merely because the circumstances in which it was made are altered. The Courts have no general power to absolve a party from the performance of its part of the contract merely because its performance has become onerous on account of an unforeseen turn of events.” The capacity to invoke the clause depends on the nature of the contract as well as the wordings of the contract. Therefore, with respect to the pandemic situations, implications of the above provisions would be dealt by the adjudicatory bodies on case to case basis.

FORCE MAJEURE AND COVID-19

The Ministry of Finance has clarified the doubt stating that disruption in supply and production chains due to the spread of coronavirus has to be considered as a case of natural calamity and Force Majeure clause may be invoked wherever appropriate according to the circumstance and nature of the contract. Many of the contracts are such in India that do not says explicitly to invoke the benefits of Force Majeure clause. Whether a contract on the account of Covid-19 has the capability to invoke the benefits of this clause is a fact-specific determination that totally depends on the nature of the obligations involved and the specific terms of the contracts. If in case the contract formed by the party does not involve ingredients of Force Majeure, then the party can claim under the “Doctrine of Frustration” U/s 56 of the Indian Contract Act, 1872. This doctrine makes the party excusable if the whole contract becomes impossible to perform. ‘Frustration’ and ‘impossible’ are often used interchangeably.

Force Majeure is an element of a contract being strict in nature while the doctrine of frustration is a common law concept.

In the light of the current situation, the lockdown has been imposed in India restricting the performance of some contracts. As the lockdown is imposed by the Govt. and is construed as an order of the Govt. Therefore, the party having the obligations to perform can issue a notice saying that such an event has occurred i.e. lockdown which is beyond its control and therefore, the provisions of Majeure clause can be triggered giving relaxation to the party by suspending the party till the supreme force i.e. lockdown gets over.
Further, the contracts made before lockdown between 2 parties involving advance payment and non-performed obligations which is impossible to execute at this time of lockdown in the purview of S. 56 of Indian Contract Act become void and the party who had paid advanced can claim for a refund as the one who received the payment in advance is bound to pay back the amount.

KEY ASPECTS WHILE INVOKING/DEFENDING FORCE MAJEURE

  • Keeping a track of the events that would be in accordance with the ingredients of the clause based on the contractual understanding of the parties and the nature of the contract. The list of the above events can be exhaustive or non-exhaustive in nature.
  • Actions that have to be taken to invoke the Force Majeure clause should be informed prior, with an issuance of notice to the opposite party.
  • Repercussions of the Force Majeure events, mitigation strategies, relaxations to be provided in performance and issues dealing with suspension or delay of standard quality performance should be analysed thoroughly.
  • Mindfulness of businesses in knowing that economic hardships i.e. higher cost of performing the obligations under a contract will not be a strong ground to assert Force Majeure clause or Frustration principle as a defence.

In the English case of Tsakiroglou & Co. Ltd. v. Noble Thorl GmbH, the facts comprise of a ship that needs to perform sale of coconuts by transporting it from one place to another. The contract was made but later at execution, it was found that the canal to be used on the customary route was closed. Despite knowing the fact, it was held that the above contract of sale of coconut cannot be considered impossible to perform and hence there was a way for the ship to travel from another passage being 3 times longer than the usual one. Economic hardship that was faced by the ship hence, failed to become a ground for frustration to contract. Therefore, the party failed to get the defence under this principle. The above view of the law was also stated in ‘Chitty on Contracts’, 31st edition. Further, the view of not to trigger Force Majeure clause unless an alternative way is available was evident in ‘Treitel on Frustration and Force Majeure’.

Moreover, legal advisors should be contacted by the parties to have a clear view of the sector they are involved in and the specific events and provisions being invoked to avoid any ambiguity later. Some cases where negligence or malfeasance of a party is seen, those are intended to get the benefit of the above clause. Understanding of the loopholes in law enforcing Force Majeure provisions with the guidance of legal practitioners would help in serving the justice better minimising the misuse of such benefit providing provisions of the law.

OTHER FACTORS AFFECTING FORCE MAJEURE CLAUSE

It would be important to note that the burden to proof of special circumstances, the events under the list of Force Majeure or Frustration principle and the mitigation assurance to be provided is on the party asserting Force Majeure defence. The liability is on the asserting party to prove the existence of Force Majeure conditions. Such clauses are construed strictly by Courts. Force Majeure clause is expressly provided and not implied under the Indian Law. Expressly means that courts will apply usual principles of contractual interpretation as per the scope of the clause to make decisions regarding the protection to be provided to the parties of the contract.

Parties can also attempt to invoke other contractual clauses. For instance, Material adverse Change (MAC) clause, price adjustment clauses, limitation and exclusion clauses to limit or minimise the burden of non-performance. Moreover, the companies can also consider the ramification of non-performance clauses to clarify the liquidity of damages and the amount of compensation for non-performance of contract which is pre-determined and agreed between the parties before making a contract.

REMEDIES

Remedies to the clause depends on the nature of contracts. For instance, some contracts may provide immediate cancellation, or some may put the contract on hold. Some may give leniency in time or in standard quality of performance. In the verdict of Alopi Parshad & Sons Ltd. v. Union of India, it was ruled out that the Indian Contract act does not enable a party to a contract to disregard their expressed statements made earlier and to claim compensation for the non-performance of a contractual obligation which was made at rates different from stipulated rates, on an indeterminate plea of equity. Irrespective of any sudden price hikes or market inflation or deflation, the party to a contract does not itself get rid of the bargain they have made and is liable to perform the obligation until proven in the Court that the above performance is ‘impossible’ or ‘impracticable’.

MITIGATING THE CURRENT CIRCUMSTANCES

With COVID-19 effects all over the globe, Life Insurance companies also have the right to invoke Force Majeure clause and escape the liability of paying the claims to the clients.

TURNING POINT

Insurance companies being private or public, have stated that they will not invoke this clause in cases of COVID-19 related death claims and will process them as fast as possible. This step was taken to assure the premium payers, that the Life Insurance industry is taking every possible measure to mitigate the disruptions and the suffering being caused, due to the lockdown. Further, the company will be providing the clients with maximum digital support to honour COVID-19 death claims in accordance with the “social distancing” rules. A grace period of 30 days is bring provided by the company to pay their premiums. Relaxations in settlements of policy is being given due care and attention to keep the policyholders at ease. All the other special charges are exempted except the fund management charge. Options like partial withdrawal and switching of accounts will be restricted during the settlement period. Other insurance companies will be providing maximum support to cover the loss arising due to special unsure circumstances in the various businesses. Policyholders are falling largely on ‘Force Majeure’ and ‘Act of God clause’.

AROUND THE WORLD

COVID-19 virus arising from the Virus ology labs of China has already made the country to work on the problems arising due to non-performance of Contracts. China Council for The Promotion of International Trade (CCPIT) has already provided thousands of Force Majeure certificates to businesses, relaxing the difficulties in performing the specified obligations of their respective contracts. It is right to conclude that the invocation of the Force Majeure clause has been successful in China. If the clause is a failure to some of the businesses, then those companies can go for the provisions governing non-performance of contract due to impossibility or impracticability also known as ‘Frustration’ to contract as mentioned in the Uniform Commercial Code (UCC) of China.

In India, Department of Expenditure, Procurement Policy Division, Ministry of Finance discharged an Office Memorandum on February 19, 2020, with regard to the Government’s ‘Manual for Procurement of Goods, 2017, which sets out the direction for procurement by the government. Further, it states that COVID-19 could be brought under Force Majeure clause based on ‘Natural calamity’ providing that ‘due procedure’ has to be followed.

CONCLUSION

COVID-19 is having an unforeseeable impact on businesses and the companies. It has restricted the parties to perform their contractual obligations, leading to a decline in the economy. As discussed in detail, Force Majeure is an express provision and invoking it for the purpose of invocation or as a defence, depends on the nature of a contract, impossibility to perform, alternativity to perform and various other circumstances that are different in different cases and would be assessed by the Courts on a case by case basis. Contracting parties must go through the language of the contract so formed by them and the various provisions regarding them. This would help in determining the plausibility of their success. Presently, massive challenges are being faced by the society. The hope for everyone is that the wrecks of COVID-19 will go by swiftly.

REFERENCES

  • https://www.bloombergquint.com/opinion/coronavirus-key-legal-issues-for-india-inc-with-covid-19
  • https://www.wsgr.com/en/insights/covid-19-and-force-majeure-clauses.html
  • https://amlegals.com/covid-19-force-majeure/
  • https://www.mondaq.com/india/litigation-contracts-and-force-majeure/918092/time-it-or-time-out–force-majeure
  • https://www.business-standard.com/article/companies/life-insurers-will-not-invoke-force-majeure-clause-for-covid-19-claims-120040601452_1.html
  • https://www.lexology.com/library/detail.aspx?g=d63bbf8d-64ec-4595-ab87-633934115ab0

LATEST POSTS

This article is written by Deepika, pursuing BA-LLB from IIMT & School of Law, GGSIPU, Delhi. In this article, she has discussed ‘kidnapping’ and ‘abduction’ which are offences punishable under the Indian Penal Code along with this, she has also discussed the difference between both the offences.

INTRODUCTION

‘Kidnapping’ and ‘Abduction’ are offences which take place all over the world. From North-America to Asia, the governments are working hard in order to deliver justice by prosecuting the perpetrators. Kidnapping and Abduction are mainly done in return for something which could be anything ranging from money to making others do acts which are illegal in nature to save their loved ones and bring them back home safely.

In our country ‘Kidnapping’ and ‘Abduction’ are increasing at an alarming rate creating a concern both for the government and society. The reason for the seriousness of these two crimes is that they lead to various other crimes and in most cases, their common targets are women and children.

Both these offences of kidnapping and abduction are covered under Chapter XVI of IPC titled ‘of offences affecting the human body’. Apart from the general definition, the Indian Penal Code has given a wider spectrum to define the terms.

Kidnapping

Section 359, 360 & 361 of Indian Penal Code deals with ‘Kidnapping’.

  • Section – 359, IPC states that Kidnapping can be classified into two kinds ‘Kidnapping from India’ or ‘Kidnapping from Lawful Guardianship’.
  • Section – 360, IPC states that whoever conveys any person beyond the limits of India without that person’s consent, the person who takes such person is said to kidnap that person from India.
  • Section 361, IPC provides that when a person entices a minor (16 years for male and 18 years for female) or a person of unsound mind, the person so enticing will be held liable for kidnapping such minor or person from lawful guardianship.  

Essential ingredients of the section are

  1. Taking or enticing away a minor or a person of unsound mind by someone
  2. Such a minor must be under the age of sixteen years, if a male, or under eighteen years, if a female;
  3. The taking or enticing must be out of the keeping of lawful guardian of such minor or person of unsound mind,
  4. Such taking or enticing of the minor must be without the consent of the lawful guardian.

Taking or enticing

To prove the presence of taking or enticing element it is required to show some active part played by the accused.

In S Varadarajan v. State of Madras a girl who was on the verge of attaining majority, voluntarily left her father’s house, arranged to meet the accused at a certain place and went to the sub- registrar’s office, where the accused and the girl registered an agreement to marry. In this case, the accused had not  ‘taken’ her out of the lawful guardianship of her parents, as there was no active part played by the accused to persuade the girl to leave the house. It was held that no offence under this section was made out.

The word ‘entice’  embodies the idea of inducement or pursuance by offer of pleasure or some other form of allurement.   

Keeping of lawful guardian

The expression lawful guardian is much wider term than the expression legal guardian. Lawful guardian includes in its meaning not only legal guardians, but also such persons like relatives, teacher who are lawfully entrusted with care and custody of a minor.

In the State of Haryana v. Raja Ram, the court observed that the word keeping connotes the idea of charge, protection, maintenance and control. Out of keeping of lawful guardian means away from parental roof or control.

Age of Minor

As per the section, the age of a minor child at the relevant point of time should be less than 16 in respect of a male, and less than 18 in respect of a female in order to constitute an offence under this section.

In the State of Haryana v. Raja Ram, the prosecutrix was a young girl of 14 years she was constantly persuaded by one Raja Ram to leave the house and come with Jai Narain, who would give her a life full of a lot of material comforts. The question before the Supreme court was whether Raja Ram could be said to have ‘taken’ the minor girl since she willingly accompanied him.

The Supreme court held that persuasion by the accused person which creates willingness on the part of minor to be taken out of the keeping of lawful guardian would be sufficient to attract the section.

Abduction

Section-362, Indian Penal Code deals with ‘Abduction’

  • Section 362 of the Indian Penal Code states that if a person either by force compels a person or induces another person to go from any place is said to abduct such person.

Essential ingredients of this section are

  1. Forcible compulsion or inducement by deceitful means.
  2. The object with which such compulsion or inducement caused must be to make a person go from someplace.

DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION

Society very frequently uses both the terms ‘Kidnapping’ and ‘Abduction’ synonymously as if they were the same thing. The reason behind the confusion is because there’s a thin line difference between both the terms. Following are the differences between the terms ‘Kidnapping’ and ‘Abduction’, which makes both the terms different from each other:

Age

  • Kidnapping from guardianship is committed only in respect of a minor (16 years old, in case of males and 18 years old, in case of females) or a person of unsound mind.
  • Abduction may be in respect of a person of any age. Any person by force compelled or induced any other person to go from any place irrespective of the age shall be booked with abduction.

Removal From Lawful Guardianship

  • In Kidnapping, a person is taken away from the guardianship of a person who has been authorized by law to take care of the person who has yet not attained the age of majority.
  • In Abduction, concerns the person who has been abducted, there’s no involvement of a lawful guardian.

Means

  • In Kidnapping, the means used are irrelevant.
  • In Abduction, means of force, compulsion and deceitful means are used.

Consent

  • In Kidnapping, the consent of the person taken away has no significance, as the person being kidnapped is a minor, who’s incapable of giving a ‘free consent’
  • In Abduction, person condones the offence of abduction.

Continuity of crime

  • Kidnapping is not a continuing offence. It is complete, the moment a person is removed from India or from the keeping of lawful custody of the guardian.
  • Abduction is a continuing offence. It continues as long as the abducted person is removed from one place to another.

Punishment

  • Kidnapping is substantive offence, punishment for kidnapping is given in Section – 363, where a person shall be punished with imprisonment of either description of a term which may extend to seven years and in addition, he will also be liable to fine.
  • Abduction is an auxiliary act. It becomes punishable only when it is done with either of the intents specified in Section – 364 to 366.

Conclusion

So, after going through all these points, we can say though they are differences between Kidnapping and Abduction. But, both the offences have a detrimental effect upon the society. The victims of such offences goes through a traumatic experience. Though the crime itself may have ended but its manifestation in the mind of the victim remains there for a long time.

Reference

  • PSA Pillai 13th Edition
  • K D Gaur 6th Edition
  • NCRB report 2018

Latest Posts


Archives

This article is written by Sharat Gopal pursuing BA.LL.B from Delhi Metropolitan Education, GGSIPU. He has discussed the legal provisions that govern the corporate while giving loans, guarantees, securities or making investments.

Introduction

Before discussing about inter-corporate loans, it is important to understand what ‘corporate’ means. ‘Corporate’ literally means “a large company or group”. ‘Company’ in literal term means “commercial business”. There is a difference between ‘corporate’ and ‘company’. The main difference between them is the size. ‘Corporation’ is big business or entity whereas a ‘Company’ is a small business or entity.

In the business world, both the terms are treated alike, it is just the size that draws a line between the two.

Now there are some basic characters which all corporate companies possess, that is –

  1. It is a legal entity and has all the rights and responsibilities that an individual has. It has to pay taxes, it can enter into contracts, it can file lawsuits and lawsuits can also be filed against it.
  2. It has a board of directors who decide all the actions of the companies.
  3. As a business entity, it has a separate existence from its owners.
  4. Ownership of the company is divided into share know as “corporate stocks”, and the people who own them are called shareholders.

Company

The Indian Companies Act was amended a lot of times. The last amendment was made in 2013, and it is in current use. The Companies Amendment bill 2019 was introduced in Lok Sabha on July 25th, 2019, which brings more changes to the act. As of now, the 2013 amendment is in use.

Section (2)(20) of the Indian companies act states the definition of “company”. It states that “company” means a company which is incorporated under this Act or any previous company law.   

Every company has a board of directors, who take decisions for the company. As a company doesn’t have a natural existence, but has a legal existence. Therefore all the decisions of the company are taken by this board of directors.

Inter-Corporate Loans and Investments

For the better functioning of the companies, section 186 of Companies Act, 2013 was introduced. It brought a few modifications and changes in the concept of Inter Corporate loans and Investments made by the company. This act makes it clear, which company can or cannot give loans, security, or make investments.

When a company provides loan, security or guarantee to another company, it is known as inter-corporate loans. When a company invests in another company, it is known as inter-corporate investments.    

A firm can provide loans, investments, guarantees or securities to other companies only after the board of directors have given consent to it.

Legal status

Section 186 of the companies act, 2013 deals with the loans and investments made by the company. Section 186(1), states that a company can make investments through not with companies more than 2 layers of investment companies.

Now “layer” is defined under section explanation (d) of section 2 (87) of the Companies Act. It states that “layer” in relation to a company means its subsidiary or subsidiaries.

Investment Company is a financial institution, whose primary activity is investing in securities. The principal business of an Investment Company is:

  1. buying of shares
  2. buying  of debentures
  3. buying of other securities

Cases where provisions of section 186(1) won’t affect:

  1. When a company acquire any company which was incorporated outside India and that company had Investment subsidiary beyond 2 layers.
  2. A subsidiary Company from having any investment subsidiary for the purpose of meeting the requirement under any law or under any rule or regulation framed under any law for the time being in force.

Others places where section 186 (1) is not applicable-

  1. Section 186 (1) is not applicable to, Housing Companies, Insurance Companies, etc.
  2. Companies whose primary business is buying and selling of shares, or security etc.
  3. Companies acquiring shares on right issues basis, which is explained in section 62 (1)(a).
  4. Government companies that operate defence production
  5. Unlisted companies which are legally authorised by the govt authorities. 

Amendments to the Act

Before the amendment of 2013, the Companies Act of 1956 was followed. Act of 1956 had a lot of problems, which were solved after the 2013 amendment. Section 372A, of the Companies Act 1956 dealt with the Inter Corporate Loans, Investments, Guarantee, Securities. After the 2013 amendment of the act, section 186 was introduced, this stated that there cannot be inter-corporate investments through more than 2 layers of investments. This was not required before the 2013 amendment. This restriction was used to keep a check on the misuse of multiple layers of subsidiaries for diversion of funds.  

The act was amended again in 2017, which brought changes to section 185 and 186, which deals with loans to directors. With these modifications to the act, it was now more convenient for businessmen and investors to do business.

Section 186(2) talks about giving loans, securities etc. It states that no company shall directly or indirectly –

  1. Give any loan to any person or other body corporate.
  2. give any guarantee or provide security in connection with a loan to any other body corporate or person
  3. and acquire by way of subscription, purchase or otherwise, the securities of any other body corporate

Which would be exceeding, 60% of its paid-up capital, plus free reserve, plus security premium account or 100% of its free reserve, plus security premium account, whichever is more.

Free reserve are the reserves which are there as per the latest audited balance sheet of the company.

Body corporate means a company corporate outside India, but should not be a corporative society which is registered under any corporative societal laws or any other body corporate not being defined under Companies Act or any authority.

Individual does not include a person who is underemployment of the same company.

Requirements mentioned in Section-186, Indian Companies Act

There are some criteria’s to be followed for having inter-corporate loans and investments. These are also mentioned in section 186.

  1. Approval from members is mentioned in section 186(3). It states that the company can give loans beyond the restriction imposed in section 186(2), but only after prior approval by the members by special resolution passed at a general meeting.
  2. Section 186(5), states that no loan or guarantee or security should be given by the company, until and unless it is sanctioned by the board of directors.
  3. Section 186(4) states that the company has to disclose all its financial statements for loan given, an investment made, guarantee given, to all the members. Such disclosure should be in the board’s report also.  
  4. Section 186(6) states that no company which is registered under section 12 of Securities and Exchange Board of India Act,1992 and covered under such class or classes of companies, shall take inter-corporate loan or deposit, exceeding the prescribed limit and such companies must provide its financial statement in detail of the loan.
  5. Section 186(10) states that every company must maintain a register which has all the details of loan given, guarantee given or security provided or investment made. This register must be open and shall be provided if demanded by the members on payment of fees prescribed.
  6. Section 186(7) talks about the interest rate of the loan given. It states that no loan should be given below interest rate which is lower than the prevailing yield of 1 year, 3-year, 5-year or 10-year government security closest to the tenor of the loan.
  7.  Section 186(13) talks about the punishments imposed when there is contravenes in the provisions provided in the act. It states that if a company contravenes the provisions of the act, then the company is liable for a penalty not less than ₹25,000, which may also extend to 5 lacs. If an officer is at fault then he is liable for imprisonment for a term which may extend to 2 years and fine of ₹25,000, which may extend to 1 lac.

Summary

The above article explains the legal provisions by which inter-corporate loans are governed. It basically gives guidelines, how loans, guarantees, securities are given to other companies. This act also punishes companies and people, if they do not follow these laws.

Latest Posts

This post is written by Anushree Tadge, 3rd year law student of ILS Law College, Pune, she tries to explain briefly what a test identification parade is and how it makes a significant contribution in the criminal law system in India.

INTRODUCTION TO TEST IDENTIFICATION PARADE

In Criminal trials, the most important step to follow as soon as the accused is arrested is confirming whether the accused is really the ‘accused’ as far as the crime scene is concerned. This test is extremely popular and is used as a means to examine the accuracy of the witness’s ability to identify the suspect amongst other unknown persons. Test identification parade is an effective tool in the investigation and with the correct procedure, it can be made admissible as evidence in the courts (corroborative evidence), the purpose is mainly to test and improve the credibility of existing substantial evidence in the case.

PROVISIONS AND ADMISSIBILITY

Section 9 of the Indian Evidence Act allows identification of the accused by the process of Test Identification Parade as well as the proofs to be all admissible in the courtroom, now it has to be understood that this ‘test’ is not compulsory to be conducted, the section 54 (a) of The Code of Criminal Procedure grants the process to allow the suspected to be presented for a test identification parade.

Very interestingly, Article 20(3) of the Constitution of India states that no person should be forced to be a witness against his own self, such principle is not violated with the test identification parade, this means that appearing for a test identification parade does not necessarily mean giving testimony in the Court of Law.

Such type of parade conducted for the purpose of identification in the investigation cannot be considered as substantial evidence it rather is taken up as corroborative evidence to support other facts and circumstances found in the case and used in the arguments to frame the ‘accused’

PROCEDURE AND PRECAUTIONS 

Procedures: Most importantly, the parade should be held as soon as possible, so that the victim or the witness doesn’t forget about the details essential for identification, as soon as the suspect is arrested the parade should be conducted. Delays are not taken positively in such cases by the courts of law. The magistrate should accompany the police when a test identification parade is carried on. The identifier should identify in both, the test identification parade as well as in the court. Also, the procedure should also take into account that the accused does not know the witness or victim before the commission of the crime, and the identifier must have observed the person for some time so as to identify him/her later on and in a sufficiently lit area.

Precautions: The police should make sure that they leave the place in order to the identifier identifying the person properly without haste, after making the required necessary arrangements, Except for the magistrate and identifier, they are allowed to be in place. For accuracy of results, a similar person to the accused must be made present along with the others and accused in a test identification parade ( Ratio minimum 1:5 and 1:10 ). Other witnesses are not allowed to be present during the process of one parade and are supposed to be kept far away from the identification parade. Also, precautions have to be taken that the accused changes positions after every witness identification takes place. 

WHETHER TEST IDENTIFICATION PARADE IS NECESSARY OR NOT:

Test Identification is usually necessary when the disputes are concerned with that of the identity of the accused, in cases where the victim never saw the accused in his/her life before the incident. When the victim experiences the act of crime and can identify the accused, a test parade is to be conducted, usually, in such cases, victims can observe the criminal but identify him at a later stage. Even keeping this in mind, the parade should be held as soon as possible and that too with the presence of the magistrate.

Test identification is not required in cases where both witness and accused are acquainted with each other as they live nearby or even closer. Test identification is done to support the existing evidence and confirm the genuineness of the same.

Also, if any form of other evidence is brought to the Court’s attention which the court can safely rely on and in doing so no party will have the right to question or even initiate the parade then it will is not be considered as any substantial evidence and even if the test is not performed admissibility of evidence in court in court shall not be affected. 

CRITICAL ANALYSIS

The credibility of this kind of test by the identifier with respect to the test identification parade, the credibility of such test vary from situation to situation and case to case. Many a times if the victim comes in a face to face contact may register a deep scar in the mind of the victim, they might remember the person and the act committed, place and even number of people involved. Factors like if the act was done during the day time? If it was in an open place, was there enough lighting for the identifier? All come into consideration…

In incidents where people covered their faces, the identification is not considered to be suitable as the identifier cannot identify the person, as well as in a situation where there lies a very huge difference in the commission of the act and the test to be conducted, it is generally the view of the court that it will further decide whether the parade should be held or not depending on facts and circumstances of the matter. 

CASE REFERENCE

In Raju Manjhi v. State of Bihar, the landmark case, the court stressed upon how the holding of test identification parade was not mandatory. The judgement was delivered by Hon’ble Mr Justice N. V. Ramana and Hon’ble Mr. Justice Mohan Shantanagoudar. On a regular night of 1999, around twelve people below 26 years committed the act of robbery into the house of Kamdeo Singh After the investigation started, many witnesses were found, although, during the test identification parade, no identification was done by the witnesses. The Court held that the identification test is conducted in a particular case only to help and support the investigation officer in a more accurate way. Now there is no provision mentioned in the Criminal Procedure Code which paves way for the investigating agency to hold or give any right to the ‘accused’ to demand the parade by any chance. Any failure to hold the parade would not make the evidence to be inadmissible for identification in Court. 

IDENTIFICATION BY PHOTOGRAPH?

Section 22 of the TADA- Terrorist and Disruptive Activities (Prevention) Act, 1987 states that: If a particular person is proclaimed to be the offender in any terrorist case, the evidence related to his identification by any witnesses on the basis of a photograph shall be as binding as the evidence of the parade.

IDENTIFICATION BY VOICE?

In the case of, Mohan Singh v. State of Bihar, it was held that identification of the accused by his/her voice was reliable as prior to the happening of the incident, the witness has had some kind of acquaintance with the accused. 

CONCLUSION

Since the procedure of test identification parade in India is already a sidetracked one and it does not even amount to substantive evidence, it’s an effect in the case proceedings is only as much as a ‘dot connector’. But it is strongly recommended to police officers that procedures regarding the parade and the specific course of any action to the investigating authorities must be clearly explained. The government should increase the number of features for more effectively conducting the test identification parade, places should be allotted, tinted windows, better interrogation, and facilities so that concerned persons can see what’s happening instead of only the magistrate, etc. For over a century now, test identification parades have been active in India, and they significantly contribute and help the investigation faster and solve the cases in a better and faster way.

Latest Posts


Archives