III YEAR OF 3 YEAR LL.

B
SEMESTER - V
ODD SEMESTER

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SUBJECT : CIVIL PROCEDURE CODE
SUBJECT CODE : TA5A

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 SYLLABUS
TA5A - CIVIL PROCEDURE CODE
Unit - I Introduction

The Law relating to procedure in civil courts as enacted in the Civil Procedure Code of
1908 read with the orders and rules made there under as amended upto date, by High Court of
Madras with emphasis on the following:

Unit - II Jurisdiction

Jurisdiction of Civil Courts, the choice of the forums of action and the doctrine of
resjudicata.

Unit - III Institution of suits

Institution of suits and framing of the pleadings with reference to the general rules
relating to pleadings under Orders VI to Vill and Rules relating to misjoinder of parties and
cause of action as laid down in Orders I and II.

Unit - IV Procedure - Conduct of a suit

A brief survey of the procedure followed in the conduct of a suit commencing from
service of summons, appearance of parties and consequences of non-appearance, discovery and
inspection, production of documents , settlements of issues, summoning of witnesses and the
pronouncement of judgement and contents of a decree.

Unit - V Modes of Execution

Modes of execution of decrees passed by Civil courts and the outline of the procedure to
be followed relating to execution as laid down in Order XXI.

Unit - VI Suits against the Government

Procedure to be followed in instituting suits against the Government or Public Officers,

suits by aliens and by or against foreign Rulers and Dignitaries and suits relating to Public
matters.

Unit - VII Procedure - Filing appeals

Procedure to be followed in filing appeals against original decrees: Appellate decrees,

Appealable orders and Appeals to the Supreme Court.

Unit - VIII Reference, Review and Revisions.

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Unit - IX Procedure - Interlocutory proceedings

Procedure and law relating to interlocutory proceedings for issuing commissions, arrest
and attachment before judgement, temporary injunction and interlocutory order, appointment of
Receivers as laid down in orders, XXVI, XXVIII, XXXIX & XLI and preparation affidavits.
Unit - X Suits appeals by indigent person.

Suits and appeals by indigent person.

Unit - XI Suits minors and persons of unsound mind

Suits by or against minors and persons of unsound mind.

Unit - XII Inter pleader suits.

Unit - XIII Summary suits on negotiable instruments.

Unit - XIV Abatement of suits

Abatement of suits and bringing on record legal representatives of the parties to a suit.

Unit - XV Limitation Act :

Limitation Act Definitions, limitations of Suits Appeals, Computation of Period of

Limitation - acquisition of ownership by possession

Statutory Materials with Amendments

1. Civil Procedure Code, 1908.

2. Limitation Act, 1963.
Books for Reference:

1. Mulla : Civil Procedure Code

2. Takwani : Civil Procedure Code
3. Tandon : Civil Procedure Code
4. S. N. Singh : Civil Procedure Code
5. Bare Act : Limitation
*********************

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 CIVIL PROCEDURE CODE

PART – 1

INTRODUCTION

LAW

ADJECTIVE
SUBSTANTIVE
LAW OR
PROCERUAL LAW

Practice Procedure
Determines Rigths &
& Machinery for the
Liabilities Parties enforcement of
Rights and Liabilities

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 It contains 158 sections and 49 orders and rules thereon. Procedural laws are always
retrospective in operation unless there are good reasons for the contrary.

SECTIONS & ORDERS CONTENTS

SECTION 1 TO 8 Preliminary in nature
SECTION 1 Provides for commencement and applicability of
code
SECTION 2 Definition clause
SECTION 3 TO 8 Constitution of different courts and their
jurisdiction.
SECTION 9 TO 35 Suits of civil nature unless barred expressly or
ORDER 1 TO 20 & SECTION 9 impliedly.
SECTION 10 Stay of suit
SECTION 11 Res Judicata
SECTION 13 & 14 Foreign judgment
SECTION 15 TO 21 A Regulates places of suing
-rules as to jurisdiction of courts and objections as
to jurisdiction
SECTION 22 TO 25 Provisions for transfer and withdrawal of suits,
appeals, transfer from one court to another.
ORDER 1 TO 4 Institution and frame of suits, parties to suit,
recognized agents and pleaders
ORDER 5 Issue and service of summons
ORDER 6 Pleadings
ORDER 7 & 8 Plaint, written statement - set off and counter
claim.
ORDER 9 Appearance of parties before court and
consequences of non appearance setting aside of
dismissal for default & setting aside of Exparte

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 degree against defendant.
ORDER 10 Examination of parties
ORDER 11 TO 13 Discovery, inspection and production of
documents and admission by parties
ORDER 14 Framing of issues by the court.
ORDER 15 Court to pronounce judgment at first hearing.
ORDER 16 TO 18 Summoning, attendance and examination of
witnesses and adjournments.
ORDER 19 Empowers the court to make an order to prove
facts on basis of affidavit of a party.
SECTION 75 TO 78 AND ORDER Issuance of commissions
26
SECTION 94 TO 95 AND ORDER Issuing temporary injunctions and passing
38 interlocutory orders.
ORDER 40 Appointment of receiver
ORDER 25 Security for the cost
ORDER 23 Withdrawal and compromise of suits
ORDER 22 Effect of death, marriage or insolvency of party to
the suit
SECTION 33 AND Judgments and decrees
ORDER 20
SECTION 34 Provisions for interest
SECTION 35, 35A, 35B AND Deals with costs
ORDER 20 –A
SECTION 79 – 93 Suits in special cases, suits by or against
AND ORDER 27 TO 37 government public officers

SECTION 79 TO 82 Suit by or against aliens foreign rules

AND ORDER 27 ambassadors and convoys
SECTION 83 TO 87 – B Suits by or against soldiers, sailors and airmen

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 ORDER 28 Suit by or against corporation
ORDER 29 Suit by or against partnership firms
ORDER 30 Suit by or against trustees, execution
administrators
ORDER 31 Suit by or against minors, lunatic and persons of
unsound mind.
ORDER 32 - a Suit relating to family matters
ORDER 33 Suit by indigent person ( paupers)
ORDER 34 Suits relating to mortgages
SECTION 88 AND Interpleader suit
ORDER 35
SECTION 90 AND Friendly suits
ORDER 36
ORDER 37 Summary suits
SECTION 91 Suits relating to public nuisance
SECTION 92 Suits relating to public trusts
SECTION 89 Settlement of disputes outside the court through
arbitration, conciliation, mediation and lok adalat
SECTION 96 TO 115 AND ORDER Appeals, reference review and revision
41 TO 47
SECTION 96 TO 99-A AND First appeal
ORDER 41
SECTION 104 TO 108 AND Appeals from order
ORDER 43
ORDER 44 Appeal by indigent persons
SECTION 113 AND ORDER 46 Reference to be made to high court by
subordinate court when question of
constitutionality arises
SECTION 114 Review of judgment
ORDER 47 Questions determined by executive Court.

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 SECTION 115 Revision powers of high court over subordinate
courts
SECTION 36 TO 74 AND Execution proceedings
ORDER21
SECTION 36 TO 74 Substantive law
ORDER 21 (PROCEDURAL LAW) LONGEST ORDER
COVERING 106 RULES
SECTION 121 TO 131 High court to frame rules – procedure of civil
courts subject to superintendence
SECTION 132 TO 158 Miscellaneous proceedings
SECTION 144 Doctrine of restitution – power of court to grant
relief of restitution.
SECTION 148 –A Lodging caveat in a suit or proceedings instituted
by or against person.
SECTION 148 TO 153 A Inherent powers of every civil courts
SECTION 148 Enlargement of time fixed or granted by it for
doing an act
SECTION 149 Permitting the party to make up deficiency of
court fees on plaint, memorandum of appeal.
SECTION 151 Inherent powers of courts
SECTION 152 TO 153-A To amend judgment, decrees, orders and other
records from accidental slip or omission
SECTION 153 –A Place of trial.

DEFINITIONS

SECTION 2 (2) Decree : means formal expression of an adjudication which so far as regards to
court expressing it, conclusively determines the rights of the parties with regard to all or any of
the matters in controversy in the suit and may be either preliminary or final. It shall deemed to
include the rejection of a plaint and determination of any question within section 144 but shall
not include.

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SECTION 144 shall not include

a) any adjudication from which an appeal lies as an appeal from an order (or)
b) any order of dismissal for default.

ELEMENTS OF DECREE

1. There must be an adjudication

2. Such Adjudication must be done in a suit
3. It must determines rights of the parties with regard to all or any matter in controversy.
4. Determination must be of a conclusive nature
5. There must be a formal expression of such Adjudication.

DECISIONS WHICH ARE DECREES

1. Order of abatement of suit

2. Dismissal of appeal as time barred
3. Dismissal of suit or appeal for want of evidence (or) proof.
4. Rejection of plaint for nonpayment of court fee
5. Granting or refusing to grant installment
6. Modification of scheme U/s.92 of the code.
7. Order holding appeal not maintainable.

DECISIONS WHICH ARE NOT DECREES

1. Dismissal of appeal for default

2. Appointment of commissioners to take accounts.
3. Order of remand
4. Order granting interim relief
5. Return of plaint for presentation before proper Court.
6. Dismissal of suit Under Order 23 rule 1.
7. Refusing to wind up a company.

CLASSES OF DECREES

1. Preliminary decree

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 2. Final decree
3. Party preliminary and partly final decree

1. Preliminary decree: Adjudication decides rights of the parties with regard to all or any of the
matter in controversy in suit but does not completely dispose of the suit.

It is only a stage of working out the rights of the parties which are to be finally
adjudicated by a final decree till then the suit continues.

SUITS IN WHICH PRELIMINARY DECREE IS PASSED

1. Suits for possession and Mesne profits ( Order 20 Rule 12)

2. Administrative suits ( Order 20 Rule 13)
3. Suits for pre –emption ( Order 20 Rule 14)
4. Suits for dissolution of partnership (Order 20 Rule 15)

5. Suits for Accounts between principal and Agent

(Order 20 Rule 16)
6. Suit for partition and separate possession (Order 20 Rule 18)
7. Suit for foreclosure of Mortgage (Order 34 Rule 2, 3)
8. Suit for sale of mortgaged property (Order 34 Rule 4, 5)
9. Suit for Redemption of a mortgage (Order 34 Rule 7, 8)

2.Final Decree

A Decree may be final in two ways

i) When within the prescribed period no appeal is filed against the decree or the matter
has been decided by the decree of the high Court.
ii) When the decree, so far as regards the court passing it completely disposes of the suit.
iii) It is a decree which completely disposes of the suit and finally settles all question in
controversy between parties and nothing further remains to be decided thereafter.

3. PARTY PRELIMINARY AND PARTLY FINAL DECREE

A decree may be partly preliminary and partly final

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Example. Suit for possession of immovable property with Mesne profit (Illegal gain)

WHERE THE COURT

(i) Decrees possession of property and

(ii) Directs enquiry into mesne profit former part of decree is final, while the latter part is only
preliminary because final decree for mesne profit can be drawn only after enquiry and the
amount due is ascertained. Even though Decree is one it is partly preliminary and partly
final.

CASE REFERRED – SHANKAR VS. CHANDRAKANT

Supreme Court states: A preliminary decree is one which declares the rights and
liabilities of the parties leaving the actual result to be worked out in further proceedings

DEEMED DECREE

An adjudication not fulfilling the requisites of Section 2 (2) cannot be a decree. By a

legal fiction, certain orders and determination are deemed to be a “Decrees” which are

 Rejection Of Plaint
 Determination of question U/s. 144 ( Restitution)
 Adjudication U/.Order 21 Rule 58, Or 21 Rule 98 to 100- Deemed Decrees

JUDGE : Presiding officer of a civil Court

 an assembly of judges or other persons acting as a tribunal in civil and criminal cases
 Place where Justice is administered “ is not a personal designatta”

JUDGMENT

Statement given by a Judge of the grounds of a decree or order

ESSENTIALS OF JUDGMENT

1. Small Cause Court Judgment consists of

i) Concise statement of the case
ii) Points for determination

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 iii) Decisions there on
iv) Reasons for such decision

The Judgment need not however be a decision on all issues. Order deciding preliminary
issue in a case. Example constitutional validity of a statue – is a Judgment

- Orders passed by central Administrative Tribunal cannot be a Judgment

DISTINCTION : JUDGEMENT AND ORDER

Judgment DECREE ORDER

1. Statement given by Judgment contemplates a stage Means formal
the Judge of the prior to the passing of a decree or expression of any
grounds of decree or an order. After the pronouncement decision of a civil court
order of Judgment decree shall follow which is not a decree

Adjudication of Court of law may either be

a) decree
b) Order
c) and cannot be both

DISTINCTION - ORDER & DECREE

S.No. Decree Order

1. Decree passed only in suit Order may originate from a suit by presentation
commenced by presentation of of plaint or may arise from proceedings
plaint commenced from petition or application
2. Conclusively determines the rights May not finally determines rights
of parties with regard to all or any
matter in controversy
3. May be preliminary or final and There cannot be a preliminary order
partly preliminary and partly final
4. Every suit there can be only one Number of orders may be passed

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 decree in certain suits preliminary
decree and final decree may be
passed
5. Every decree is appealable Every order is not appealable
6. Second appeal lies to High Court No second appeal lies in case of appealable
on grounds from decree passed in orders.
first appear

DECREE HOLDER

Means any person in whose favour a decree has been passed or an order capable of
execution has been made.

Judgment Debtor: means any person against whom a decree has been passed or an order capable
of execution has been made.

Foreign Court: Means a court situated outside India and not established or continued by the
authority of central Government.

FOREIGN JUDGMENT

Judgment of a Foreign court, Judgment of Foreign court at the time of pronouncement

would not cease to be a foreign court by reason of a fact that subsequently the foreign territory
has become a part of the union of India

Legal Representative: means a person who in law represents the estate of a deceased person and
includes any person who intermeddles with the estate of the deceased and where a party sues or
is sued in a representative character, the person on whom the estate devolves on the death of the
party so suing or sued.

FOLLOWING PERSONS ARE LEGAL REPRESENTATIVES

Executors, Administrators, reversioners, Hindu Coparceners residuary legatee. Trespasser

is not legal representative official assignees, succeeding trustee, receiver executor de-son tort not
legal representative.

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MESNE PROFIT

Means those profits which the person in wrongful possession of property actually
received or might with ordinary diligence have received there from together with interest on such
profits, but shall not include profits due to improvements made by the person in wrongful
possession. It is compensation in nature but no penal. Is a compensation to person who has been
kept out of possession and deprived of enjoyment of his property even though he was entitled to
possession there of.

AGAINST WHOM CLAIMED

Wrongful possession of defendant is the essence for a claim of mesne profit. Can be
claimed only with regard to immovable property. Decree for mesne profit be passed

 against the trespasser

 against a person against whom a decree for possession is passed
 against a mortgagor in possession of mortgaged property after decree for foreclosure has
been made against him.
 against a mortgagee in possession of property even after a decree for redemption is
passed
 against a tenant holding over at will after a notice to quit has been served upon him.
 Mesne profits being in nature of damages. While assessing Court will consider and taken
to account what defendant has gained or reasonably might have gained by his wrongful
possession.
 Interest has to be allowed in the computation of mesne profit. Rate of interest at
discretion of court. Deduction like land revenue, rent, cesses, cost of cultivation and
reaping, charges incurred for collection of rent shall be allowed while arising mesne
profits.

PUBLIC OFFICER

1. Ever Judge
2. Every member of all India service

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 3. Every commissioned or Gazatted officer in the military naval or air forces of union while
serving under Government.
4. Every Officer of the court of Justice whose duty is to investigate or report on the matter
of law or fact keep document, administer oath, execute any Judicial process to interpret to
preserve any order.
5. Every person who holds office by virtue of which he is empowered to place or keep any
person in confinement.
6. Every person who prevent offences, given information as to offences, brings offenders to
justice, protect public health, safety or convenience.
7. Every office whose duty is to keep or expand the property on behalf of Government,
make any survey, assessment, contract on behalf of Government make authenticate, keep
any document relating to pecuniary interest of the Government.
8. Every officer in service or pay of the Government remunerated by or commission for the
performance of any public duty.

AFFIDAVIT

It is declaration of fact reduced to writing and affirmed or sworn before an officer having
authority to administer oath. It should be drawn up by first person and contains statements and
not inferences.

APPEAL

Judicial examination of the decision by the Higher Court of the decision of an inferior
Court.

CAUSE OF ACTION

Bundle of essential facts, which it is necessary for the plaintiff to prove before he
succeed. It is a foundation of the suit.

CAVEAT

An official request that a court should not make a particular action without issuing notice
to the party lodging the caveat and without affording an opportunity of hearing him.

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CIVIL

Rights and remedies of a citizen as distinguished from criminal, political etc.

COURT

Place where Justice is administered.

DEFENDANT

Person who defends or a person sued in a court of law by a plaintiff.

EXECUTION

The process of enforcing or giving effect to the Judgment, decree or order of court.

ISSUES

Points in question, an important subject of debate or litigation are of three kinds

1. Issue of facts
2. Issues of law
3. mixed issue of facts and law.

Authority to decide, may be power of authority of court to hear and determine a cause to
adjudication and exercise any Judicial power in relation to it.

PLAINT

Statement of claim, document or a memorial by presentation of which a suit is instituted.

It is a pleading of the plaintiff.

PLAINTIFF

A person who brings a suit or commences an action against a defendant contains reliefs
claimed in the plaint by filing into court.

SUIT

Civil Proceedings instituted by the presentation of the plaint.

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SUMMONS

Is a document issued from the office of the court of Justice calling upon the person to
whom it is directed to attend before the court or officer for a certain purpose.

Summon may also be issued to witnesses. Service of summons may effected by any
mode recognized by the code.

WRITTEN STATEMENT

As a reply of a defendant to the plaint filed by the plaintiff. It s pleading of defendant

dealing with every material fact of a plaint.

PART –II

JURISDICTION OF CIVIL COURTS

Means an extent of the authority of a court to administer justice prescribed with reference
to the subject matter, pecuniary value and local limits.

Civil court has inherent power to decide the question whether it has Jurisdiction,
entertain, deal with and decide the matter which has come before it.

KINDS OF JURISDICTION.

1. TERRITORIAL OR LOCAL JURISDICTION

(i) A local limits fixed by Government
(ii) District Judge within District.
(iii) High Court within the territory of state.
(iv) No court has got Jurisdiction to try a suit for immovable property
beyond its local limits.
2. PECUNIARY JURISDICTION
(i) District Court and High Court has no pecuniary Jurisdiction. Court of
small cause cannot entertain suit which amount claimed exceeds
Rs.1,000/-.
(ii) Munsif Court – Upto Rs. 1,00,000/-.

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 (iii) Subordinate court – Above Rs.1,00,000 to upto Rs.10,00,000.
(iv) District Court - Above Rs.10,00,000/-.

3. JURISDICTION AS TO SUBJECT MATTER

(i) Presidency small Cause court has no Jurisdiction to try suits for specific
performance of a contract, partition of immovable property, foreclosure,
redemption of mortgage etc.
(ii) District Judge Court – Testamentary matters, divorce cases, probate
proceedings, insolvency proceedings.

4. ORIGINAL AND APPELLATE JURISDICTION.

(i) Court entertains and decides and an appellate Jurisdiction court entertains
and decides appeals
(ii) District Munsif court, court of civil Judges and small cause courts –
possess original Jurisdiction only.
(iii) Whereas High Court and District Court have original as well as appellate
Jurisdiction.

JURISDICTION OF CIVIL COURTS

Section: 9 – Civil Court has Jurisdiction to try all suits of civil nature. unless they are
barred either expressly or impliedly.

CONDITIONS

1. The suit must be of civil nature.

2. The cognizance of which should not have been expressly or impliedly barred.
3. Nature pertaining to rights and remedies of a citizen as distinguished from criminal or
political.

SUITS OF CIVIL NATURE

1. Suits relating to right to property

2. Suits relating to right to worship

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 3. Suit relating to taking out of religious processions
4. Suit relating to right to share in offerings
5. Suit for damages for civil wrongs
6. Suit for specific performance of contracts or for damages for breach of contracts
7. Suit for specific reliefs
8. Suit for restitution of Conjugal rights
9. Suit for dissolution of marriage
10. Suit for rents
11. Suit for or on accounts
12. Suit for rights of franchise
13. Suit for rights to hereditary office
14. Suit for rights to Yajmanuritis.
15. Suit against wrongful dismissals from service and salaries etc.

SUITS NOT A CIVIL NATURE

1. Suits involving principally caste question

2. Suits involving purely religious titles or ceremonies
3. Suit for upholding mere dignity or honour
4. Suit for recovery of voluntary payments or offerings
5. Suits against expulsions from caste.

1. SUITS EXPRESSLY BARRED

A suit is said to be expressly barred when it is barred by any enactment of the time
being in force.
Every presumption should be made in favour of Jurisdiction of civil Court and
provision of exclusion of Jurisdiction of civil Court must be strictly constructed. If there is
any doubt about ousting of Jurisdiction of civil Court, the court will lean to an interpretation
which would maintain the Jurisdiction.

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2. SUITS IMPLIEDLY BARRED.

It is barred by general principles of law. The civil Court has inherent power to decide
its own Jurisdiction

OBJECTION AS TO JURISDICTION AND EXCLUSION OF JURISDICITON

1. Where the statue given finality to orders of special tribunals, the civil Courts Jurisdiction
– held to be excluded if there is adequate remedy to do what the civil court would
normally do.
2. Where there is an express bar of Jurisdiction of court.
3. Particular act as ultra virus cannot be brought before.
4. When provision is already declared unconstitutional.
5. When the act contains no machinery for refund of tax collected in excess of constitutional
limits.
6. Question of correctness of an assessment apart from its constitutionality.
7. Exclusion of Jurisdiction is not readily to be inferred.

GENERAL PRINCIPLES

1. Consent can neither confer nor take away Jurisdiction of the Court
2. Decree passed by the court without Jurisdiction is a nullity and validity thereof can be
challenged.
3. Distinction between want of Jurisdiction and irregular exercise thereof.
4. Jurisdiction of court depends upon the averments made in the plaint and not upon the
defence in written statement.
5. For deciding Jurisdiction of the court, the substance of a matter and not its form is
important
6. Every presumption should be made in favour of Jurisdiction of civil Court
7. Statue ousting the Jurisdiction of court must be strictly construed.
8. Burden of exclusion of Jurisdiction of a court is on the party who asserts it.
9. Even where Jurisdiction is barred, it can still decide whether the provisions of Act have
been complied with (or) whether the order was passed dehorns of the Law.

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SECTION 10 - RES SUB JUDICE - STAY OF THE SUIT

No Court shall proceed with trial of any suit in which the matter in issue is also directly
and substantially in issue in previously instituted suit, between same parties (or) between the
parties under whom they or any of them claim, litigating under the same title, where such suit is
pending in the same or any other court in India having Jurisdiction to grant relief claimed, or in
any court beyond the limits of India established or instituted by Central Government and having
like Jurisdiction or before the Supreme Court.

OBJECT

To prevent courts of concurrent Jurisdiction from simultaneously entertaining and

adjudicating upon two parallel litigations in respect of same cause of action same subject matter
and the same relief.

CONDITIONS

1. There must be two suits, one previously instituted and another substantially instituted.
2. Matter in issue in the subsequent suit must be directly and substantially in issues in
the previous suit
3. Both suits must be between same parties or their representatives.
4. Previously instituted suit must be pending in the same court in which subsequent suit
is brought.
5. Court in which previous suit is instituted must have Jurisdiction to grant the relief
claimed in subsequent suit.
6. Such parties must be litigating under the same titled in both the suits.
7. There is no bar on the power of Indian Court to try subsequently instituted suit or
previously instituted suit is pending in Foreign Court.
8. Under section 151 inherent powers to stay a suit to achieve ends of Justice.

SECTION - 11 - RES JUDICATA

No Court shall try the suit (or) issue in which the matter directly and substantially in issue
has been directly and substantially in issue in a former suit between the same parties or between
the parties under whom they or any of them claim, litigating under the same title in a court

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competent to try such subsequent suit or suit in which such issue has been substantially raised
and has been heard and finally decided by such Court.

THE DOCTRINE OF RES JUDICATES BASED ON THREE MAXIMS

1. Nemo debet lis Vexari Pro Una et -eadem causa ( No man should be vexed twice for the
same cause)
2. Interest republica Ut sit finis litium (it is in the interest of state that there should be an end
to litigation)
3. Res Judicata pro Veritate occipitus ( a Judicial decision must be accepted as correct)

RES JUDICATA AND RES SUB JUDICE

1. Res Judicata applies to matter adjudicated upon.

2. Res sub Judice applies to matters pending trial.
3. Res Judicata bars the trial of suit or issue which has been decided in a former suit – Res
sub Judice bar the suit which is pending decision in a previously instituted suit.

RESJUDICATA AND ESTOPPEL

1. Res Judicata results from a decision of the Court estoppels flows from the act of parties.
2. Res Judicata based on public policy, estoppels proceeds upon the doctrine of equity.
3. Res Judicata ousts Jurisdiction of a court to try a case and precludes enquiry in limine –
estoppel is only a rule of evidence and which shuts the mouth of party.
4. Res Judicata prohibits averring the same thing twice in successive litigation, estoppel
prevents from saying one thing at one time and the opposite at another.
5. Res Judicata Presumes conclusively the truth of the decision in the former suit, estoppel
prevents party from deny what he once called the truth.
6. Section 11 applied to all civil suits. It is mandatory. Res Judicata should be interpreted
and applied liberally. The party may waive the plea of Res Judicata.

MATTER IN ISSUE

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Matters directly and Matters collaterally
Substantially in issue or incidentally in
issue

Actually in issue constructively in issue

Matters directly and substantially in issue will operate as Res Judicata in a subsequent suit

Illustration

A sues B for rent due. Defence of B is no rent due. The claim for rent is a matter in
respect of which relief is claimed. The claim of rent therefore – matter directly and substantially
in issue.

CONSTRUCTIVE RES JUDICATA

If a plea could be taken by one party in proceedings between him and another opponent,
he should not be permitted to take that plea against the same party in subsequent proceedings
with reference to same subject matter.

Illustration

A sues B for possession of property on the basis of ownership. The suit is dismissed. A
cannot thereafter claim possession of property as a mortgagee as the ground ought to have been
taken in the previous suit as a ground of attack.

Decisions on matters collateral or incidental to the main issue in a case will not operate as
Res Judicata. Collateral or incidental means which is ancillary to direct and substantive issue.

Illustration

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 A Sues B for the rent due. B pleads abatement of rent on the ground that the actual area
of land is less than that mentioned in lease deed. Court finds the agreement that shown in lease
deed. Finding as to excess being ancillary and incidentally to the direct and substantial issue is
not a Res Judicata.

Suit means that it is a proceeding which is commenced by presentation of a plaint.

Former Suit Denotes a suit which has been decided prior to the suit in question whether
or not it was instituted prior thereto.

ISSUE OF THREE KINDS

1. Issue of fact
2. Issue of Law
3. Mixed issue of fact and law of bundle of facts which one party asserts and another
denies – issues arise.

PARTY MEANS

Person whose name appears on the record at the time of the decision. Party may be
plaintiff / defendant

 Res Judicata between plaintiff and defendant

 Between co-plaintiffs and co-defendants
 Adjudication operates as Res Judicata between co – defendant of the conditions
satisfied it.

The Conditions are

1. There must be conflict of interest between co-defendants

2. Must be necessary to decide that conflict in order to give relief to the plaintiff

3. Question between co-defendant must finally decided

4. Co-defendants were necessary party or proper parties in former suit.

Illustration

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 A sues B, C and D and in order to claim if A, court has to interpret a will. The decision
regarding construction of will on rivals claims of the defendant will operate as Res Judicata in
any subsequent suits by any of the defendants against the rest. There is a Res Judicata between
Co-plaintiffs.

PRO FORMA DEFENDANT

A defendant to a suit against whom no relief is claimed is called Pro forma Defendant.
Party is added merely because his presence is necessary for complete and final decision of the
question involved.

IN REPRESENTATIVE SUITS

In common for themselves and others – Res Judicata Operates subject to conditions.

1. There must be right claimed by one or more persons in common for themselves and after
not expressly named in suit.
2. Parties not expressly named in the suit must be interested in such right
3. The litigation must have been conducted bonafide and on behalf of all parties.
4. If the suit is under ORDER 1 RULE 8 conditions laid down there must be strictly
complied with.

PUBLIC INTEREST LITITGATION

Res Judicata cannot apply to bonafide Public Interest Litigation. If previous Public Interest
Litigation is not bonafide Public Interest Litigation the subsequent proceeding would not be
barred. Supreme Court case.

Forward Construction Co. ltd Vs. Prabhat Mandal

COMPETENT COURT

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 Means competent to try the subsequent suit if brought at the time the suit was
brought.

The former suit may operates as Res Judicata, the court which decided that suit
must have been either

1. a court of exclusive Jurisdiction – Res Judicata applies

2. A Court of limited Jurisdiction – Res Judicata applies
3. A Court of concurrent Jurisdiction – Res Judicata applies

- to decisions of the court above named

Concurrent Means Pecuniary limit as well as subject matter of the suit

Execution proceedings :General Principles of Res Judicata were held to be applicable even to
execution Proceedings.

Industrial Adjudication -Res Judicata applicable

Taxation matters : Res Judicata has no application because, liability to pay tax from year to
year is separate, distinct and independent liability. Each year has separate assessment.

Criminal Proceedings - Res Judicata applicable

Writ Petition - Res Judicata does not applicable as per the amendment of the year of
1976 and on the basis of the Judgment rendered by the Hon’ble Supreme Court and High Courts
– the Principle of Res Judicata shall apply even to writ petitions having bonafide cause. Provided
in case of writ of Habeaus Corpus – Resjudicata does not applicable.

SHARMA VS KRISHNA SINGH

First time Supreme Court held that Res Judicata applies to petition filed U/Art. 32 of
Constitution of India.

COMPROMISE DECREE

Not a decision by court. Mere acceptance by court of something which the parties have
agreed. It merely bears seal of the court. The court does not decide anything.

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CONSENT DECREE

Res Judicata does not apply. as in consent decree, matter cannot be said to be decided
“Heard and finally decided” on Merits. Such decree However precludes party from challenging it
by a rule of Estoppel.

WITHDRAWAL OF SUIT

A Withdrawal of suit does not operates as Res Judicata in filing a subsequent suit for the
same cause of action.

INTERLOCUTORY ORDERS

The doctrine of Res Judicata applies to different stages of the same suit or proceedings. If
any interlocutory order decided a controversy in part between parties, such decision would bind
the parties and operates as Res Judicata at all subsequent stages of the suit and the court will not
permit the party to “ set the clock back during pendency of proceedings.

SECTION 10 - BAR OF SUIT – RES SUBJUDICE

Where the plaintiff is precluded by rules from instituting a further suit in respect of any
particular cause of action, he shall not be entitled to institute a suit in respect of such cause of
action in any court to which his code applies.

PLAINTIFF IS PREVENTED FROM INSTITUTING THE FOLLOWING SUITS

1.SECTION 11 : Where the suit is barred by Res Judicata

2. Section 21 –A: Where the decree sought o be challenged (on ground of territorial / pecuniary
Jurisdiction

3.SECTION 47 (1) : Where the question relate to execution discharge or satisfaction of decree

4. SECTION 95 (2) : Order determining compensation for arrest attachment or temporary

injunction.

5.SECTION 144 (2) : Where restitution can be claimed.

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6. ORDER 2 RULE 2 : Where there is Omission to sue in respect of party of the claim by
plaintiff.

7.ORDER 11 RULE 21(2) : Suit dismissed for non-compliance with an order or discovery.

8.ORDER 9 RULE 9 : Where decree is passed against a plaintiff by default.

9. ORDER 22 RULE 9: Where the suit has abated

10. ORDER 23 RULE 1(1): Where a suit or part of the claim has been abandoned by a plaintiff

11. ORDER 23 RULE 1(3): Where a suit or part of claim has been in the drawn by plaintiff in
without leave of Court.

12. ORDER 23 RULE 2 –A: Where a compromise decree is ought to be challenged on the
ground that the compromise was not lawful.

FOREIGN COURT

Foreign Court means a court situate outside India and not established or continued by the
authority of the Central Government

FOREIGN JUDGEMENT

Means a Judgment of foreign Court. Foreign Judgment embodies principle of Res

Judicata. It embodies principle of Private International Law that a Judgment delivered by a
foreign court of competent Jurisdiction can be enforced in India.

Illustration

A Sues B in a foreign Court. The suit is dismissed. The Judgment will operate as a bar to
a fresh suit by A Against B in India on same Cause of action.

Binding nature of Foreign Judgment

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 Foreign Judgment shall be conclusive as to any matter thereby directly adjudicated upon
between the same parties on between parties under whom they or any of them claim litigating
under the same title except.

1. Where it has not been pronounced by a court of competent Jurisdiction.

2. Where it has not been given on merits
3. Where it has been found on an incorrect in view of International law or refusal recognize
the law of India
4. Where the Judgment is opposed to natural Justice.
5. Where it has been obtained by fraud.
6. Where it sustains a claim founded on a breach of any law in force in India.

FOREIGN JUDGEMENT WHEN NOT BINDING

1. Foreign Judgment not by a competent Court

2. Foreign Judgment not on merits
3. Foreign Judgment against international or Indian Law
4. Foreign Judgment Opposed to natural Justice
5. Foreign Judgment obtained by fraud
6. Foreign Judgment founded on a breach of Indian Law.

SECTION – 14 - Presumption as to foreign Judgment

Unless the contrary appears on record or is proved court shall presume upon production
of certified copy of foreign Judgment that such was pronounced by court of competent
Jurisdiction.

Submission to Jurisdiction of a foreign court may be express or implied. Where the

defendant has not submitted the Jurisdiction of a foreign Court. It is a question of fact.
Conclusive in nature and operate as Res Judicata

ENFORCEMENT OF FOREIGN JUDGMENT

Section 13 : Foreign Judgment can be enforced in India in following ways

1. By Instituting a suit on foreign Judgment

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 2. By Instituting execution proceedings

An award passed by a foreign arbitrator and enforceable in a country where it was made,
can be enforced in India.

PLACE OF SUING

Every suit shall be instituted in the court of the lowest grade competent to try it.

TERRITORIAL JURISDICTION

Suit may decided into 4 classes

1. Suits in respect of immovable property ( Section 16 to 18)

2. Suits for movable property ( Section 19)
3. Suits for compensation for wrong ( Section 19)
4. other Suits ( Section 20 )

SECTION 16 TO 18

1. Suit for recovery of immovable property

2. Suit for partition of Immovable property

3. Suit for foreclosure, sale or redemption in case of Mortgage of (or) charge upon

immovable property

4. Suit for determination of any other right to or interest in immovable property

5. Suit for torts to immovable property

SECTION 19.

A suit for wrong to movable property may be brought at the option of the plaintiff either
at the place where the wrong has committed or where the defendant resides, carries on business
or personally works for gain.

Illustration

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 “A” residing in Delhi beats “B” in Calcutta. B may sue A either in Calcutta or in Delhi.

 “A” residing in Delhi, Publishes in Calcutta Statement defamatory to ”B”, ”B” may sue A
either in Calcutta or in Delhi.

SECTION : 20

All such suits may filed at the plaintiff’s option in any of the following courts

1. Where the cause of action wholly or partly arises (or)

2. Where the defendant resides, carried on business or personally works for gain (or)

3. Where there are two or more defendants, any of them resides, carries on business or
personally works for gain. Provided in such cases

(i) either the leave of court is obtained

(ii) The defendant who do not reside or carry on business or personally work for
gain.

Illustration

“A” is a trade man in Calcutta “B” carries on business in Delhi by his agent in Calcutta
buys goods of A and request “A” to deliver them to the East India Railway company “A”
delivers goods accordingly at Calcutta. “A” may sue “B” for the price of the goods either in
Calcutta, where the cause of action has arises, or in Delhi where “B” carries on business.

PLACE OF SUING – GENERAL PRINCIPLES

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S.No. NATURE OF PROCEEDINGS PLACE OF SUING

1. Every suit Court of the Lowest Grade

Competent of try
( Section 15)

2. Suit for Court within those Jurisdiction the

(I) Recovery of immovable property is situate
(II) Partition of Section 16(a) to (e)
(III) Foreclosure
(IV) Sale or Redemption of Mortgage
of or charge upon
(V) Determination of any other right or
interest
(VI) Compensation for wrong to
immovable property

3. Recovery of movable property under Court within whose Jurisdiction the

actual destraint or attachment immovable property is Section (f)
Situate

4. Relief respecting or compensation for Court with whose Jurisdiction

wrong to immovable property held by or 1. Property is situate
on behalf of defendant where the relief 2. The defendant resides carries on
sought can be entirely obtained through business or personally works for
his person obedience. gain
5. Relief respecting or compensation for Court within whose Jurisdiction, any

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 wrong to immovable property situated portion of property is situate
within the Jurisdiction of different courts. provided the entire claim is within
the pecuniary Jurisdiction of such
Court ( Section 17)

6. Where it is uncertain within the Any of those courts provided that

Jurisdiction of which of two or more the court has pecuniary, Jurisdiction
courts any immovable property is situate.
7. Compensation for wrong to
(i)Person
(ii) movable property if the wrong is
done within the Jurisdiction of one court
and defendant residing or carries or
business or works for gain within the
Jurisdiction of another Court.
8. Any other suit
as regards the subject matter of suit (
Section 18)
Either of the Courts at the opinion of
plaintiff.
(i)Where the cause of action wholly
or partly arises (or)
(ii) the defendant resides or carries
on business or personally works for
gain (or)
(iii) Where there are two or more
more defendant where any one of
them resides, carries on business or
personally works for gain Provided
that :
a)Either the leave of the court is
obtained
b) the defendant who do not reside,
carry on business or Personally
work for gain (Section 20 )

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SECTION :21 OBJECTION AS TO JURISDICTION

Decree of a Court without Jurisdiction is nullity

 The objection as to Jurisdiction territorial or pecuniary merely technical, and unless

raised at the earliest possible opportunity, will not be entertained in appeal or revision for
the first time
 The objection as to Local Jurisdiction may be waived

Section 21(1) : No objection as to the place of suing will be allowed by an appellate or revisional
court unless the following conditions fulfilled.

1) The objection was taken at the court of First instance

2) It was taken at earliest opportunity
3) There must be consequent failure of Justice.

INSTITUTION OF SUIT

Ordinarily a suit is a Civil Proceeding, initiated by presentation of plaint.

ESSENTIAL OF SUIT

1. Opposing parties
2. Subject matter in dispute
3. Cause of action
4. Relief

The plaint must be presented to the court or such officer as it appoints in that behalf.

Judge may accept plaint at his residence place or any other particular time and place after
office hours though he is not bound to accept it, may accept it if it is the last day of limitation.

PARTIES TO SUIT: ORDER 1

Normally: Plaintiff and Defendant. Single individual may adversely affect another
individual

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JOINDER OF PLAINTIFFS : Rule 1

All persons may joined in suit as plaintiff’s / defendants

PLAINTIFFS : Subject to conditions of

1. Right to relief alleged to exist in each plaintiff arises out of the same act or
transaction.
2. Case is of such character that if such persons sought separate suits, any common
question of law or fact would arise.
3. Both conditions should be fulfilled.

Illustration

1. “A” assault “B” and “C” or “A” and “B” assault “C” Joinder of plaintiff or joinder of
defendant arise.

2. A enter into agreement with B and C to sell 100 tins of Oil. “A” refuses to deliver. Hence
B and C both have right to ge relief. Their right arises in same transaction – common
question of law & fact would also arise. Hence “B” and “C” jointly as plaintiffs to file
suit against “A” for damages for breach of Agreement.

JOINDER OF DEFENANTS (RULE 3)

All person may be joined in one suit as defendants if following conditions are satisfied

(i) Right to relief alleged to exist against them arises out of same act or transaction
(ii) Case is of such character, if separate suits were brought against such persons, any
common question of law or fact would arise

NECESSARY OR PROPER PARTIES

 Necessary party is one who’s presence is indispensable to the constitution of suit against
whom the relief is sought and without whom no effective order can be passed

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  Proper party is one in whose absence an effective order can be passed but whose presence
is necessary for a complete and final decision on the question involved in the proceeding.
 Absence of necessary party – No decree can be passed
 Absence of Proper Party – Decree can be passed
 Suit for partition – All shares are necessary parties
 Suit for declaration to set aside public auction: Purchaser of property in public auction is
necessary party.
 An Action against selection & Appointment -All candidates involved are necessary
parties.
 Suit For Possession By Landlord - Sub-tenant is proper party
 Land Acquisition Proceedings - Local Authority whose benefit land is to be
acquired one necessary parties.
 Suit For Partition - Grand sons are proper parties

COMPLAINT AGAINST EMPLOYER IN PREPARING SENIORITY LIST

No relief against particular individual – person shows as senior proper parties. If relief is
claimed against such person – is a necessary party.

NON –JOINDER AND MIS JOINDER

Where a person who is necessary or proper party to the suit has not joined as party to suit

NON JOINDER OF PARTIES

Two or more persons joined as plaintiffs / defendants in one suit, in contravention

ORDER 1 RULE 1 & 3 and they neither necessary nor proper parties

MIS JOINDER OF PARTIES

All objections as to misjoinder or non joined of parties must be taken at the earliest ( Rule
13)

STRIKING OUT, ADDING OR SUBSTITUTING PARTIES ( RULE 10)

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ORDER 1 RULE 10 (1) - Deals with striking out, addition and substitution of parties

ADDING OR SUBSTITUTING

After filing a suit, plaintiff discovers that he cannot get the relief he seeks without joining
some other persons also a plaintiff or found that some other person not the original plaintiff is
entitled to relief as prayed for application for addition or substitution can be made

Condition for which

1. Suit filed in the name of wrong person as plaintiff by bonafide mistake.

2. The substitution / Additional of plaintiff is necessary for determination of real matter
in Controversy.

Illustration

1. C an agent under A by bonafide mistake file suit in his own name, court can substitute the
name of “A” for that of original Plaintiff “C”.
2. Hindu family firm files suit in its name by bonafide mistake – Court may substitute name
of members of Hindu Undivided family as plaintiffs.
3. “A’ Claiming title under gift deed, file suit for possession of house against B, under
bonafide mistake that the house was gifted by said Deed. If deed does not contain to that
House, real owner could be substituted as plaintiff in place of “A”

STRIKING OUT OR ADDING PARTIES

UNDER ORDER 1 RULE 10 (2) - Court empower to add any person as party to suit on either
of two grounds

1. Such person ought to have been joined as plaintiff or defendant and is not so joined, and
2. Without his presence the question involved in the suit cannot be completely decided

Addition of parties – Judicial discretion which is required to be exercised judiciously.

CONDITIONS

1. Dominis Litis – Plaintiff is the best Judge of his interest

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 2. Court satisfied that the presence of person is necessary to effectively and completely
adjudicate all disputes between the parties.

REPRESENTATIVE SUIT

It is a suit filed by or against one or more persons on behalf of themselves and others
having same interest in the suit.

ORDER 1 RULE 8

Does not debar member of a village community from maintaining the suit in his own
interest in respect of wrong done by some other villagers.

SUGGESTED QUESTION

“A’ decree was passed in a suit against certain members of a sect alleged to be wrong –
doers in their individual capacity. State whether the same can operate as Res Judicata in a
subsequent suit against the other members of the sect.

CONDITIONS

1. Parties must be numerous.

2. Must have same interest in the suit.
3. Permission must have been granted / direction must have been given by the Court.
4. Notice must have been issued the parties whom it is proposed to represent in the suit.
5. No part of claim in a representative suit can be abandoned and no suit can be withdrawn
Under Order 23 Rule 1 No agreement.
6. compromise or satisfaction can be recorded in any suit unless notice to all person so
interested.
7. Plaintiffs or defendants may authorize one or more of them to appear, plead or act for the
others Under Rule 8 –A.
8. Decision arrived in a representative suit operates any Rs Judicata.

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 9. In Representative suits, person appointed to conduct the suit dies, suit will not abate other
person interest in the suit may proceed, may apply to be added as plaintiffs or plaintiffs.

FRAME OF SUIT - ORDER 2

- Every suit includes the whole of the plaintiffs claim in respect of the cause of action and
if possible all matters in dispute between parties be disposed of finally.

SPLITTING OF CLAIM - ORDER 2 RULE 2

Every suit must include the whole of the claim to which the plaintiff is entitled in respect
of Cause of Action. If plaintiffs omits to sue for or intentionally relinquishes any portion of
claim. He shall not afterwards be allowed to sue in respect of the portion so omitted or
relinquished.

Illustration

A advances loan of Rs.2,200 to B. To bring the suit within the Jurisdiction of Court X. A
sues B for Rs.2,000/- only A cannot after wards sue for Rs.200/-.

CONDITIONS

1. The second suit must be in same cause of action on which previous suit is based.
2. In respect of same cause of action, plaintiff was entitled to more than one relief.
3. Entitled to more than one relief, without leave of court omitted to sue for the relief for
which second suit filed.

JOINDER OF CLAIMS (RULES 4 -5)

In a suit for recovery of immovable property, plaintiff is not entitled, without leave of
court, to join any claim except

1. Claim for Mesne profits or arrears of rent in respect of property claimed.

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 2. Claim for damages for breach of any contract under which the property or part thereof is
hold.
3. Claim in which the relief sought is based on same cause of action

JOINDER OF CAUSE OF ACTION ( RULE 3, 6)

Joinder of several causes of Action in one suit

ONE PLAINTIFF / ONE DEFENDANT / SEVERAL CAUSE OF ACTION

Plaintiff at liberty to unite in same suit several causes of action. But it appears to the court
joinder of causes of action may embrass or delay the trial or is otherwise in convenient. The
court may order separate trials.

JOINDER OF PLAINTIFF AND CAUSES OF ACTION

When there are two or more plaintiff and several causes of action, plaintiff may unite
such causes of action against same defendant if they are jointly interested.

JOINDER OF PLAINTIFFS DEFENDANTS AND CAUSES OF ACTION

Where two or more plaintiff and two or more defendants and several causes of action, the
plaintiff may unite the cause of action against the defendants in the same suit when all plaintiffs
are jointly interested in the Causes of Action.

PLEADINGS (ORDER 6 RULE 1 )

1. Pleadings defined as plaint or written statement

2. Statements in writing drawn up and filed by each party to a case

PLAINTIFFS PLEADING – PLAINT

Statement of claim, set out cause of action.

DEFENDNAT PLEADING – WRITTEN STATEMENT

Defence in which defendant deals with every material fact alleged by plaintiff.

BASIC RULES OF PLEADINGS (Rule 2 ) (Order 6)

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 Rule 2(1) States that : Every pleading shall contain and contain only a statement in a concise
from of the material facts, on which party pleading relies for his claim / defendant but no
evidence.

1. Pleading should state facts and not law

2. Facts should be material facts
3. Pleadings should not state evidence
4. Fact should be stated in concise form

OTHER RULES OF PLEADINGS

1. Whenever misrepresentation, fraud, breach of trust, willful default or undue influence are
pleaded, particulars with dates and items should be stated
2. Narrow the controversy to precise the issues. Vague or general plea never serve the
purpose.
3. Performance of a condition precedent need not be pleaded.
4. Departure from pleading not Permissible.
5. Bare denial of contract by the Opposite party will be constructed only as a denial of
factum of contract and not legality, validity or enforceability of contract.
6. Documents need not be set out at length unless words there in are material.
7. malice, fraudulent intention, knowledge, or other condition of mind of person is material,
may alleged in pleadings a fact
8. Giving of notice is necessary or a condition precedent, pleading should only state as fact
9. Implied contracts or relation between person may be alleged as a fact
10. Law presumes in favour of party and burden of proof lies need not be pleaded.
11. Forms in appendix A of code should be used
12. Pleadings should be divided into Paragraphs, numbered consecutively, every allegations
should be stated in separate Paragraph.
13. Date, totals and numbers should be written in figures as ell as in words

STRIKING OUT PLEADINGS (RULE 16 )

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 The court is empowered to strike out any pleading if it is unnecessary, scandalous,
frivolous or vexatious or tends to pre Judice, embarrass or delay the faith trial of suit or other
an abuse of process of the court.

SIGNING AND VERIFICATION OF PLEADINGS

Every pleading must be signed by the party or by one of the parties or by his pleader

AMENDMENT OF PLEADINGS ( Rule 17)

The Court may at any stage of the proceedings allow either party to alter or amend his
pleadings in any such manner and on such terms as may be just and which are necessary to
determine the controversy.

LEAVE TO AMEND WHEN GRANTED

Where amendment sought will Occasion. No injury to the opposite party and can
sufficiently compensated for by costs or other terms in posed by the Order

1. Not working injustice to other side Amendment ought to

2. Necessary for final determination be allowed.

LEAVE TO AMEND REFUSED FOR THE REASON OF

1. Where amendment sought not necessary to determine the real question in controversy.
2. If it introduces a totally different, new and inconsistent case or changes the fundamental
character of the suit / defence.
3. Where the effect of proposed amendment is to take away form the other side a legal right
accrued in his favour.
4. When application for amendment is not made in good faith.
5. Amendments should allowed which are necessary for determination
6. Proposed amendment should not alter or substitute for cause of action
7. Inconsistent and contradictory amendments would not be allowed
8. Amendment should cause prejudice to other side.
9. Amendment of a claim or relief barred by time should not be allowed

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 10. No amendments should be allowed which amount / results in defeating a legal right to the
opposite party
11. No party should suffer on account of technicalities of law
12. Delay in filing amendment application be compensated in costs
13. Error / Mistake which if not fraudulent should not be ground for rejecting the application
for amendment.
14. Principles are illustrative and not exhaustive.

Leave to amend may be granted at any stage of the proceedings. Amendment applications are
not governed by law of limitation.

An order granting or refusal to grant the amendment is not a decree nor an appealable
order as such no appeal lies against it. But order however is a “case decided” and is
subject to revisional Jurisdiction of High Court.

Effect of failure to Amend: Party obtained amendment order, does nor amendment within the
time specified or no time is specified within 14 days from the date of order. He shall not
afterwards permitted to amend after expiry of 14 days unless time is extended by the Court

PLAINT AND WRITTEN STATEMENT

PLAINT – ORDER 7

 Statement of claim
 Document by presentation which the suit is instituted

PARTICULARS OF PLAINT ( RULE 1 – 8)

Every plaint should contain the followings

1. The name of the court in which suit is brought

2. Name, description and place of residence of plaintiff & defendant.
3. Plaintiff / defendant is a minor, person of unsound mine, a statement to that effect.
4. Facts constituting a cause of action and when it arose.
5. Facts showing that the Court has Jurisdiction

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 6. Statement of value of subject matter of suit for the purpose of Jurisdiction and court fee.
7. The relief claimed by the plaintiff or in the alternative
8. When the suit is for recovery of money the precise amount claimed.
9. Plaintiff filed a suit in a representative capacity, facts shown actual existing interest in
subject matter and that he has taken steps that may be necessary.
10. Where plaintiff allowed a set off or relinquished a portion of his claim, the amount so
allowed or relinquished.
11. Where the suit is for accounts of mesne profit or for movable the possession of defendant
is for debts cannot be determined the approximate amount or value there of
12. Where subject matter of suit is immovable property, Description of property sufficiently
to identify
13. The interest and liability of the defendant in subject matter of suit.
14. Where the suit is time barred, the ground upon which the exemption from the law of
limitation is claimed.

 Parties – There must be two parties – Plaintiff and Defendant

 Cause of Action: Every facts which would be necessary for the plaintiff to prove, if
transferred, in order to support his right to Judgment of Court.
 Jurisdiction of a court: Facts showing that court has pecuniary and territorial Jurisdiction
over the subject matter of the suit
 Valuation : Plaint must state value of subject matter for the purposed pecuniary
Jurisdiction.
 Limitation : Where the suit is barred by limitation, facts stating exemption shall be
mentioned in plaint.
 Relief : Relief founded on separate and district grounds should stated. Plaintiff may claim
“ further or after relief as the nature of case may require.

ADMISSION OF PLAINT - ORDER 7 RULE 9

on admitting the plaint, the plaintiff is required to pay requisite fees for the service of
summons on the defendants within seven days.

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RETURN OF PLAINT - ORDER 7 - RULE 10 TO 10 – B

At any stage, court finds that it has no Jurisdiction either Territorial or pecuniary, it will
return the plaint to be presented to the proper Court which the suit ought to have been filed. The
Judge return the plaint should make endorsement.

1. The date of presentation

2. The date of return
3. The name of party presenting it
4. Reasons for returning it

REJECTION OF PLAINT - ORDER 7 RULE 11

The plaint will be rejected in the following cases

1. Where the plaint does not disclose cause of action.

2. Where the plaint claimed is under valued
3. where the plaint is insufficiently stamped
4. Where the suit is barred by law
5. Where the plaint is not in duplicate
6. Where the plaint is non compliance with statutory provisions
7. any other Grounds
 Plaint not signed by plaintiff
 Defect not cured within time limit
 Plaint is found on vexatious and merit less
 Not disclosing clear right to sue

On the above grounds Court may reject the plaint

PROCEDURE ON REJECTION OF PLAINT –

ORDER 7 RULE 12

On rejection of plaint, the Judge will pass an order to that effect and will record the
reasons for such rejection.
EFFECT OF REJECTION

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 If plaint is rejected, plaintiff not precluded from filing a fresh suit in respect of same
cause of action ( Rule 13)

Appeal : Order rejecting plaint is a deemed “Decree” U/s. 2(2) and therefore appealable.

DOCUMENT RELIED ON IN PLAINT (RULE 14 – 17 )

Under Rule 14, plaintiff at the time of presentation of plaint produce all the documents.
which he sues or rely on it. Documents not produced along with plaint, shall not without the
leave of court be received in evidence. The Court has discretion to allow or disallow the
production of document.

However does not apply to following documents.

1. Document reserved for the purpose of cross examination of plaintiffs / Defendant’s

witnesses (or)
2. Document handed over to a witness merely to refresh his memory.

RECOGNIZED AGENTS AND PLEADER ( ORDER 3)

APPEARANCE OF PARTY ( RULE 1)

1.Party in person
2.By his recognized agent
3. By a pleader appearing, applying and acting on his behalf
RECOGNISED AGENTS (RULE 2)

1. Person holding Power of Attorney

2. Person carrying on trade or Business for parties not residing within the territorial
Jurisdiction of the Court,.
3. Person specially appointed by Government to prosecute or defend on behalf of Foreign
Rulers.
4. Pleader means any person entitled to appear and plead for another in court and includes
an Advocate, Vakil and an attorney of High Court.
5. Pleader can be appointed by means of document in writing known as Vakalat Nama or
Vakalat Patra signed by party or his recognized agents, duly authorized

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SERVICE OF PROCESS ( RULE 3, 5 -6)

Process served on the recognized agent or pleader of the part or left at the office or
residence of the pleader will be considered a valid and proper.

ISSUANCE AND SERVICE OF SUMMONS

(ORDER 5 - SECTION 27 – 29)

SUMMONS

A Summon is a document issued from the office of a court of Justice, calling upon the
person to whom it is directed to attend before the Judge or office of the Court for a certain
purpose. It is an intimation with regarded to suit filed against him.

ESSENTIALS OF SUMMONS (RULE 1 – 2)

Every summons shall be signed by the Judge or such officer appointed by him and shall
be sealed with the seal of the court. must be accompanied by the Plaint

SUMMON TO DEFENDANT ( SECTION 27 ORDER 5 RULE 1)

Order 5 deals with summons to defendant

Order 16 Deals with summons to witnesses

No summon however will be issued by the Court if at the time of presentation of plaint,
the defendant is present and admits the plaintiff’s claim.

APPEARANCE OF DEFENDANT (RULE 3 )

A defendant to whom a summon has been issued may appear

 In person
 by a pleader duly instructed and able to answer all material questions relating to the suit.
 by a pleader accompanied by same person able to answer all such questions.

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EXEMPTION FROM APPEARANCE IN PERSON
( SECTION 132 – 133 RULE 4)

No person shall be ordered to appear in person

1. Unless he resides
a) within the local limits of the court ordinary originary Jurisdiction
b) Outside such limits but a place less than
(1) 50 miles
(2) 200 Miles from the court house
c) Who is women not appearing in public
d) Who is entitled to exemption.

CONTENTS OF SUMMONS RULE 5 – 8

 The summon must contain a direction whether the date fixed is for settlement of issues
only (or) for final disposal of the suit. In latter case Defendant should be directed to
produce his witnesses.
 The court must give sufficient time to the defendant to enable him to appear and answer
the claim of plaintiff on the day fixed.
 The summon should also contain an order to the defendant to produce all documents or
copies there of in his possession or power upon which he rely on in support of his case.

MODE OF SERVICE OF SUMMONS (RULE 5-8)

1. Personal (or) direct service Rule 10 -1,18

2. Must be served to the defendant in person or to is authorized agent
3. Where defendant is from his residence, no likelihood of being found, within reasonable
time and has no authorized agent
4. Summons may be served to any adult male or female member of defendant’s family
residing with him.
5. Servant cannot be a family member
6. Suit relating to any business or work against a person not residing within the territorial
Jurisdiction of the court. It may be served to manager or agent carrying on the business
or work

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 7. In suit for immovable property, if summons cannot be served on to the defendants
personally and defendant has no authorized agent, service may be made to any agent in
charge of property.
8. Where there are two or more defendants, service of summons should be made on each
defendant.
9. All these cases summons should be made by delivering or tendering a copy there of
 Should be acknowledged by defendant’s person
 Serving officer shall make an endorsement on the Original summons stating the
time and manner of service, name and address of person if any identifying the
person and witnessing the delivery or tender of summons.

SERVICE BY COURT ( RULE 9 )

For defendants residing within the Jurisdiction of the court summon shall be served
through court officer or approved courier Services may also by RPAD, speed post, courier
service, fax, e –mail or by any other permissible means of transmission.

SERVICE BY PLAINTIFF ( RULE 9 – A)

Court may also permit service of summon by the plaintiff in addition to service of
summons by the court.

SUBSTITUTED SERVICE (RULE 17, 19 & 20)

Substituted Service means the service of summons by a mode which is substituted for the
ordinary mode of service of summons

a) Where the defendant or his agent refused to sign the acknowledgement.

b) Where after due diligent can’t find defendant who is absent from his residence.

The service of summons can be made by affixing a copy on the outer door or some of
conspicuous part of the house in which defendant ordinarily resides, carries on business or
personally work for gain.

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 Where the court orders service by an advertisement in a newspaper the newspaper should
be a daily newspaper circulating in the locality in which the defendant is last known to have
actually or voluntarily resided, carried on business (or) personally works for the gain.

SERVICE BY POST

Where acknowledgement purporting to be signed by the defendant or his agent is

received by the court, or the defendant or his agent refused to take delivery of summons when
tendered to him, the court declaring summons shall declare that the summons duly served on the
defendant.

Where the summons sent by registered Post is returned with endorsement “ Refused” the
burden is on the defendant to that the endorsement is false”.

SERVICE IN SPECIAL CASES (RULE 21 – 30 )

1. Where defendant resides within the Jurisdiction of another court or another state,
summons may be sent to the court where he resides. Such court will serve summons
2. Foreign summons may effected by sending them to the courts in the territories in which
this code apply and served as if it were summons issued by such Courts.
3. In case of presidency town of Bombay, Calcutta, Madras, it may sent to the court of small
causes within whose Jurisdiction it is to be served.
4. Where defendant resides outside India, and has no authorized agent in India, to accept
service the summons should be addressed to defendant, where he resides, sent to him by
post, courier service, fax, messages, Electronic mail service or by any other appropriate
mode of there is postal communication.
5. Where defendant resides in foreign country, the service of summons may be effected
through Political agent.
6. Where the defendant is a public officer(not belonging to Navy, air force, Indian Military )
or is a service of the railway company or local authority, the summons may be served
through head of the departments in which he employed.
7. Where the defendant is a solider, sailor, airmen court shall send summon for service to
his commanding officer.

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 8. Where the defendant is a prisoner, summons may be served through officer in charge of
prison.
9. Where the defendant is a corporation, served on the secretary, or any director, or
principal officer of company or corporation, or by leaving it or sending it by post,
addressed to the corporation.
10. Where the defendant are partners in partnership firm summons should served upon any
one or more of the partners – or upon person having control of management of the
partnership business.
11. Where the partnership firm has been dissolved, before institution of suit, the summons
shall be served upon every person sought to be held liable.

WRITTEN STATEMENT (ORDER 8 )

Is a pleading of the defendant wherein he deals with every material fact alleged by the
plaintiff in his plaint and also states new facts in his favour or take legal objections against
the claim of the plaintiff

FILING OF WRITTEN STATEMENT

Within 30 days from service of summons, present written statement of his defence

SPECIAL RULES OF DEFENCE

1. Defendant is bound to produce all documents in support of his defence.

2. He shall state set off or counter claim where it is in his possession.
3. Fails to produce will not be received afterwards except the leave of the court.

EXCEPT

1. Documents reserved for the purpose of cross examination of plaintiff’s witnesses.

2. Documents handed over to witness for refreshing the memory.
 New facts such as said not maintainable, or that transaction is void, or voidable in law
if not raised, would take the plaintiff by surprise, would raise issues of fact not arising
out of plaint, such as fraud, limitation, release, payment, performance or facts
showing illegality must be raised in the written statement

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  Denial if any made – must be specified
 Denial should not be vague
 Allegations in plaint not denied specifically or by necessary implications or stated to
be not admitted shall be taken to be admitted except against person under disability

The court may requires proof of fact otherwise than by such admission

If defendant not filed written statement, the court may pronounce the judgment on the
basis of the facts stated in plaint

If Judgment is pronounced by the court a decree shall be drawn up in accordance with it.

SET OFF

A claim set off against another. It is cross claim which partly offsets the original claim

It is reciprocal acquittal of debts between two persons. The right of set off has been
recognized under Rule 6

Illustration

1. A sues B on a bill of exchange of Rs.500/- “B” holds a Judgment against “A” for Rs.
1,000/-. Two claims being both definite, pecuniary demands may be set off.
2. A and B sue C for Rs.1,000/-. Cannot set off a debt due to him by “A” alone
3. A sues B for Rs.15,000/-. B cannot set off an amount of Rs.30,000 if the court in which
suit filed by “A” has pecuniary Jurisdiction upto Rs.20,000/- only

DEFENDANT MAY SET OFF IF FOLLOWING CONDITIONS SATISFIED

1. The suit must be for the recovery of money

2. The sum of money must be ascertained
3. Such same must be legally recoverable
4. Must be recoverable by the defendant / or by all the defendants if more than
5. must be recoverable by the defendant form the plaintiff or from all the defendants if more
than one

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 6. It must not exceed pecuniary Jurisdiction of the Court in which suit is brought.
7. Both parties must fill, in the defendants claim to set off the same character as they fill in
the plaintiff’s suit.

EQUITABLE SET OFF

Rule 6 deals with legal set off. In England even unascertained money can be set off if both cross
claims arise in single transaction.

Illustration

A Sues B to recover Rs. 50,000/- under a contract “B’ can claim set off towards damages
sustained by him due to breach of the same contract by “A”

In a suit for wages by washer man, the defendant employer may set off the price of the
cloths lost by the plaintiffs

DISTINGUISH BETWEEN -LEGAL AND EQUITABLE SET OFF

S.No. Legal Equitable set off

1. Must be for ascertained sum of Equitable may be allowed even for
money unascertained sum of money
2. Can be claimed as of right and court Cannot be claimed as of a right court ha
is bound to entertain and adjudicate discretion to refuse to adjudicate upon
upon it it

3. It is not necessary that cross demands Allowed only when cross demands
arise out of same transaction arises out of the same transaction

4. It is necessary that amount claimed Allowed even if it is time barred when

as set off be legally recoverable and there is fiduciary relationship between

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 must not time barred the parties

5. Require a Court fee No Court fee is required

COUNTER CLAIM (RULE 6 –A TO 6 –G)

 Means claim made by the defendant in a suit agisnt the plaintiff. It is a claim independent
of and separable from the plaintiff’s claim which can be enforced by a cross action.
 Plea open to a defendant to defeat the relief sought by the plaintiff against him in a
counter claim. Claim made by the defendant in a suit against the plaintiff

DISTINGUISH BETWEEN SET OFF AND COUNTER CLAIM

S.No. SET OFF COUNTER CLAIM

1. It is statutory defense to a plaintiffs Counter claim is substantially a cross action
action
2. Must be ascertained sum or it must Need not arise out of same transaction
arise out of same transaction
3. Is a ground of defence to the Is a weapon, defendant to enforce the claim
plaintiffs is shield would & against plaintiff
afforded an action

4. Amount must be recovered at the Amount must be recoverable at the date of

date of suit written statement.
Defendant demands in a plaintiff’s It is for a larger amount the claim for excess
5. suit an amount below or up to the amount is really a counter claim
suit claim

APPEARANCE AND NON APPEARANCE OF PARTIES

ORDER 9 RULE 1 & 12

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 Rule 1 requires parties to the suit to attend the court in person (or) by pleader on the day
fixed in summons

Rule 12

Where plaintiff or defendant who has been ordered to appear in person does not appear in
person, or show sufficient causes for non appearance the court may dismiss the suit, if he is the
plaintiff, or proceed exparte if he is the defendant

RULE 3

Neither the plaintiff, nor the defendant appears when the suit is called out for hearing, the
court may dismiss it.

 The dismiss all U/r 3 however does not bar a fresh suit in respect of the same cause of
action
 Plaintiff may also apply for an order to set aside the dismissal

WHERE ONLY PLAINTIFF APPEARS ( RULES 6 ,10)

When plaintiff appears and defendant does not appear, the plaintiff has to prove service
of summons on the defendant. If service is proved the court may proceed exparte against the
defendant and may pass a decree

If more than one plaintiff, one or more of them appear and after doe no appear, the court
may permit the suit to proceed as if all the plaintiffs had appeared, make such order as if thinks
fit.

WHEN ONLY DEFENDANT APPEARS (RULE 7 – 11)

Where defendant appears and plaintiff does not appear and defendant does not admit the
plaintiff’s claim, court passing a order dismissing the suit.

Defendant admits the plaintiff’s claim as a whole or part there of the court will pass a
decree against the defendant upon such admission and dismiss the suit for the rest of the claim.

RULE 8

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 Applied in case of only one plaintiff and does not remain present, or there are two or
more plaintiffs and all of them remain absent, when there are more plaintiffs than one and one or
more of them appear rule 10 will apply

RULE 9

Precludes the plaintiff thereafter from filing a fresh suit on the same cause of action,

Where the court adjourned the hearing of suit exparte the defendant at or before such
hearing appears and assigns good cause for his previous non appearance, the court may hear him
upon such terms as it directs as to costs

WHERE SUMMONS IS NOT SERVED (RULE 2 & 5)

 Where the suit may be dismissed for summons is not served on the plaintiff’s failure to
pay costs for service of summons to defendants or to present copies of the plaint
 Plaintiff files a fresh suit after dismissal of suit, in respect of same cause of action, or
may apply an order to set aside such dismissal. If court satisfied that there is sufficient
cause for such failure, court will set aside the order of dismissal.
 Plaintiff apply for fresh summons seven days after the summons on the defendants / one
of the defendant is returned un served.

The Court will dismiss the suit against the defendants. But if within the period, plaintiffs
satisfied the Court that

1. He has failed, inspite of best efforts, to discover place of residence of defendant who has
not been served.
2. Such defendant is avoiding service of process
3. There is any other ground for extention of time, the court may extent the time.

If suit of plaintiff is dismissed by the court within the period of limitation, he can file a fresh
trial.

EXPARTE DECREE

 Is a decree passed in absence of the defendant

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  When plaintiff appeared, defendant not appeared when suit is called out for hearing and if
defendant is duly served, court may hear the suit exparte and pass decree
 Such decree neither null and void nor inoperative
 But merely by voidable unless and until annulled on legal and valid grounds

REMEDIES

1. Apply to the court by which the decree is passed to set aside

(ORDER 9 RULE 13)
2. To prefer an appeal against such decree SECTION 96 (2)
3. To apply for review (ORDER 47 RULE 1)
4. To file a suit on ground of fraud

SETTING ASIDE EXPARTE DECREE (RULE 13 ORDER9)

On an application within 30 days from the date of such exparte decree, the defendant may
apply for setting it aside the decree on the following grounds.

1. Summons not duly served.

2. Sufficient cause
 misconduct or gross negligent, diligent and vigilant of party improper advice of
advocate.

The above are only grounds but not sufficient cause always.

Illustrations

1. Bonafide mistake as to date of hearing

2. late arrival of train
3. Sickness of counsel
4. Fraud of opposite party
5. Mistake of pleader in nothing down wrong date in diary
6. Negligence of next friend or guardian in case of minor plaintiff or defendant
7. Death of relative of party
8. Imprisonment of party

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 9. Strike of advocates
10. No instructions by a lawyer
11. Good cause and sufficient cause

LIMITATION

Can be made within 30 days from the date of decree

NOTICE TO OPPOSITE PARTY

Exparte decree cannot be set aside without issuing notice opposite party and without
giving an opportunity of hearing

IMPOSITION OF CONDITIONS

Court has discretion to impose such terms an defendant aas it think fit, where exparte
decree is eta side on certain conditions, and those conditions are not complied within the time
granted by the court, the application stands dismissed.

Court may setting aside the exparte decree only against such defendant who made an
application where against some of defendants decree is passed on merits. But against some it is
passed exparte, application to set aside the decree may be filed by one or more of defendants
against whom exparte decree was passed.

Illustration

Suit by A against B, C and D. Exparte decree was passed C and D were not served with
summons while B is served. In an application by C and D it is held that decree against B cannot
be set aside.

WHERE DECREE IS INDIVISIBLE

A, B and C are coparceners in Joint Hindu Family. They jointly execute a mortgage in
favour of X. X files a suit against all of them. Summons served to but not to A and B. None of
them appears and an exparte decree is passed against all. A and B applies to Set aside exparte
decree. Here the decree being one and divisible. It ought to be set aside against “C” also.

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WHERE THE SUIT WOULD RESULT IN CONSISTENT DECREE IF DECREE WERE
NOT SET ASIDE AGISNT OTHER DEFENDANT ALSO.

X sues A and B on pronote. “B” paid amount due to X. Summons served to “A” alone.
None of them appears exparte decree is passed against both. “A” applies to set aside, decree must
set aside towards “A” only. Because if “B” succeeds in proving payment there will be two
inconsistent decrees.

RELIEF NOT EFFECTIVELY BE GIVEN IF OTHERWISE THAN BY SETTING

ASIDE DECREE AGINST OTHER DEFENDANTS

A files suit against B, C and D on mortgage bond and getting exparte decree. “B” alone
applies to set aside neither in mortgage bond or in the plaint nor in the decree, there is any
specification of shares and liabilities of respective defendant. The decree must be set it aside as a
whole.

WHERE DECREE PROCEEDS ON THE GROUND COMMON TO ALL DEFENDANTS

A sues B and c on promissory note. B is the principal debtor “C” is the surety. Exparte
decree passed against Both. “B” alone applies for setting it aside and shows sufficient cause for
his absence. The decree must be set aside agisnt “C” also as the liability of both is based on
common ground

EFFECT OF SETTING ASIDE EXPARTE DECREE

If the suit is restored, the court should proceed to decide the suit as it stood before the
decree.

DISMISSAL OF APPEAL AGAINST EXPARTE DECREE

Where an appeal against an exparte decree has been decided on any ground other than the
withdrawal of such appeal, application to set aside such exparte decree does not lie.

APPEAL

An appeal lie against the order rejecting an application to set aside exparte decree.
Exparte decree is a decree U/s. 2 (2).

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REVISION

An order setting aside exparte decree is a case decided within the meaning of section 115
and therefore revisable. High Court may also exercise supervisory Jurisdiction Under Article 227
in appropriate cases.

REVISION

Since all remedies against exparte decree are concurrent, an aggrieved party can also file
an applications for review of condition laid down order 47 rule 1 satisfies.

SUIT

Filing suit to set aside the exparte decree is not maintainable. but if plaintiff obtained
decree by fraud, the defendant can file a regular suit to set aside such decree

FIRST HEARING

The day on which the court applies its min to the case either for framing issues or for
taking evidence can be said to “First hearing of the suit”.

ORDER 10 RULE 1

The court at the first hearing of suit, ascertain from each party or his pleader, whether he
admits or denies allegations or facts made in plaint or in written statement.

After recording, admissions or denial the court shall direct the parties to settle the matter
out of court through conciliation, arbitration, mediation or Lok Adalat.

ISSUES

Means points in question. Important subject of debate, disagreement, discussions,

argument or litigation .

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 Issues if decided in favour of the plaintiff, will in itself give a right to relief. If decided in
favour of defendant will in itself be a defence.

FRAMING OF ISSUES (ORDER 14 RULE 1)

Issues arise when material proposition of fact or law is affirmed by one party and denied
by the other. Material proposition of law or fact which a plaintiff must allege in order to show
right to sue or defendant must alleged in order to constitute his defence. Each material
proposition affirmed by one party and denied by another party shall from subject matter of
district issue.

KINDS OF ISSUES (RULE 1 – 2)

1. Issues of facts
2. Issues of law
3. Mixed issues of fact and Law

Issue of law may be tried first, if that issues relates to

(i) The Jurisdiction of the Court.

(ii) A bar to the suit created by any law for the time being in force.

IMPORTANCE OF ISSUES

1. It is the issues framed and not the pleadings guide the parties in matter of leading
evidence.
2. Court cannot refuse to decide the point on which issues has been framed even if it does
not mentioned in Pleaders
3. Court should not frame issues which does not arise in pleadings
4. Issues must be confined to material questions of fact or law
5. One issues shall cover only one fact or law in dispute between parties
6. In case of Appeal, the appellate court must deal with issues settled for trial.
7. The duty to frame issues rests primarily on the court
8. The court may inspect documents or examine witnesses before framing issues and

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 9. To amend the issues, to framed additional issues or to strike out issues that may appear to
it to be wrongly framed.

MATERIAL FOR FRAMING ISSUES

1. Allegations made on oath by parties, or by any persons present on their behalf of

statements made by the pleaders.
2. Allegations made in the pleading or in answers to interrogatories and
3. Documents produced by the parties.
4. Omission to frame issue is not necessarily fatal to the suit. It is mere irregularity which
may or may not be a material one.

DISCOVERY, INSPECTION AND PRODUCTION OF DOCUMENTS

Every suit contemplates two sets of facts

1. Facts which constitutes party’s case ( Facta Probanda)

2. The facts by which the said case is to be proved (Facta Pobantia)

DISCOVERY (ORDER 11)

1. Means to compel the opposite party to disclose what he has in his possession or
power.
2. Where information is required, party is allowed to put question to his adversary.
These questions are called “interrogatories”
3. Judge will go through the proposed question, if he considers them proper, will compel
other side to give answer – on oath before trial is called “Discovery”
4. For permission to inspect and take copies of document called “Discovery of
Documents”

OBJECT OF INTERROGATORIES

To ask question or to make inquiry closely or thoroughly

1. To know the name of case of the opponent.

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 2. To support his own case either directly obtaining
3. Admission (or) indirectly by impeaching or destructing the case of opponent.

RULES OF INTERROGOTORIES ( ORDER 11 RULE 1 TO 11)

1. Interrogatories may be administered in writing only with the leave of the court subject
to conditions and limitations.
2. Particulars of interrogatories be submitted to the court within 7 days before filing
application.
3. Interrogatories may be administered either by the plaintiff to the defendant or by the
defendant to the plaintiff.
4. No party can deliver more than one set of interrogatories to the same party without an
order for that purpose.
5. No leave to the granted to plaintiff for interrogatories until written statement is filed
by the defendant.
6. Interrogatories may be question of fact and not as to conclusion of law, inference of
facts or construction of facts.
7. Parties to suit are corporation or body of person –interrogatories may be administered
by officer of corporation or body.
8. Party to the suit is a minor or unsound persons, interrogatories may administered to
his next friend or guardian” ad litem”.
9. Interrogatories and an affidavit in answer to interrogatories should delivered in
prescribed form
10. Interrogatories in answer shall be filed within 10 days after service of interrogatories
or within such period court allow
11. Person interrogates omits to answer or answer insufficiently party interrogating may
obtain order from the court requiring his to answer by affidavit or Vivavoce.
12. Costs of interrogatories shall be borne by the party administering interrogatories.

INTERROGATORIES WHICH MAY ALLOWED.

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 Can be allowed whenever the answers to them will serve wither to prove the case of party
administering the interrogatories or to destroy the case of his adversary. It should not confined
with narrow technical limits and must be exercised liberally so as to shorten the litigation save
expenses and serve the ends of Justice.

WHICH MAY NOT BE ALLOWED

1. For obtaining discovery of facts which constitutes exclusively the evidence of the case of
his adversary.
2. As to any confidential and privileged communications between a party and his legal
advisor
3. Which would involve disclosures injurious to public interest
4. Which one scandalous, irrelevant or not bonafide for the purpose of the suit or not
sufficiently material at that stage.
5. Which are really in the nature of cross examination.
6. Interrogatories on questions of law
7. Which are “Fishing” in nature or with object of plugging a Loophole.
8. May be set aside on the ground that they are unreasonable, vexatious, or struck off the
ground that on profix, oppressive, unnecessary or scandalous.

DISCOVERY OF DOCUMENTS

The party wanting inspection must therefore, call upon the opposite party to produce the
document Rule 12 enables the party without filing affidavit to apply to the court for the purpose
of compelling the opposite party to disclose the documents in his possession or power. An
affidavit shall set forth all documents

OBJECT

To secure all possible disclosure on oath of all material documents in possession or

power of the opposite party under sanction of penalty attached to a false oath. To put an end to
protracted enquiry as to material documents actually in possession or power of Opposite party.

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RULES

1. Party may apply to court for order directing to make discovery on oath of documents
2. Court may refuse if discovery is not necessary
3. Court may exercise this power either motion or application
4. No order for discovery was passed unless cost is filed.
5. Discovery cannot be ordered if the court of opinion that it is not necessary for disposal of
the suit or for saving costs.
6. parties against whom discovery of documents has been made is bound to produce all the
documents in his power or possession.
7. Privilege is claimed, the court shall inspect such privilege and its validity, unless the
documents relate to matters of state.

INSPECTION OF DOCUMENTS (RULE 15 – 19)

For the purpose of inspection, documents may be divided into two classes

(i) documents referred to in the pleading or affidavit of parties

(ii) Other documents in possession or power of the party but not referred to in the
pleading of the parties.
(iii) Should give notice to produce documents for inspection
(iv) party to whom notice is given, within 10 days from the receipt of such notice,
state time and place at which documents may be inspected and stating his
objecting if any for production of documents

Inspection can proved only by way of application to the court along with affidavit satisfying
the court that the documents is relevant.

PREVILAGED DOCUMENTS

1. Documents which are of themselves evidence exclusively the party’s own case or title
2. Confidential communication between client and his legal adviser
3. Public official records, relating to affairs of the state and confidential official
communications if production would be injurious to public interest.

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 PREMATURED DISCOVERY (RULE 20)

 Court is empowered to postpone the premature discovery or inspection

 Discovery is premature –when right to discovery depends upon determination of any
issues or question is dispute. In such case court may order, question or issue be
determined first and reserves the discovery.

RULE 21

 When party fails to comply the order for interrogatories or discovery of documents or
production of documents.
 Such party happens to be a plaintiff – suit may be dismissed.
 Such party Happens to be a defendants – Suit will be struck of
 Such other however be passed after giving notice and reasonable opportunity of being
heard to the plaintiff tor to the defendants

ADMISSIONS – ORDER 12

Section 58 of Evidence Act lays down that “Facts admitted need not be proved.
Admission may be before suit (or) after filing of suit.

ADMISSION

Of Facts Of documents

In pleadings Otherwise than in pleadings

Expressly Constructively
Order 7 rule 11 Order 8 rule 3, 4 & 5
Order 11 rule 22 Order 12 rule 2 –a

During examination In answers to On Notice On Oath By agreement

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by court Interrogatories Or. 12 R 4 Or. 10 R2 of Parties
Or 10 R 1, 2 Or. 11 R 8,22 Or. 18 R3 Or.23 R 3

Rule 1 : Party to suit may give notice in writing that he admits the whole or any party of the case
of the other side.

Admission of documents means admission of facts contained in the documents

NOTICE TO ADMIT DOCUMENT : RULE 2, 3 –A, 8)

After discovery and inspection either party may call upon the other party to admit within
7 days from the service of notice in the prescribed form, the eye witnesses of any document.
Every document which a party is called upon to admit, if no denied specifically or by necessary
implications or stated to be not admitted in the pleading of the party or in reply to the notice to
admit documents shall be deemed to be admitted except against a person under disability.

NOTICE TO ADMIT FACTS ( RULE 4 – 5 )

Any party may be notice in writing at any time not later than 9 days before the day fixed
for the hearing call upon any other party to admit, for the purpose of suit only any specific facts
mentioned in such notice.

Such admission however should be accepted or rejected as whole and it is not permissible
to rely on one part, ignoring the other. If admissions is made subject to condition, it must be
accepted only with that condition.

JUDGMENT ON ADMISSIONS (RULE 6 )

 Court is empowered to pronounce Judgment upon the admissions made by the parties
without waiting for determination of any other questions between parties.
 The power to give Judgment is discretionary and enabling in nature and party cannot
claim it as of right

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  Before pronouncing Judgment on Admissions, the court must be satisfied that the
admission is definite and unequivocal.

PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS

 ORDER – 13 Rule 1 requires the parties or their pleaders to produce documentary

evidence on or before settlement of issues.
 Plaintiff must produce documents along with plaint into court summons shall contain an
order to produce documents
 Belated production of documents may not work in justice
 Explanation for delay shall be required U/s.5 of Limitation Act.
 Where documents are in possession of party and that they were produced after obtaining
certified copies from revenue authorities, refusal or production held to be unjustified. The
court has power to receive document even at a later stage of the genuineness of the
document is beyong doubt or it is relevant or material to decide the case.
 No documents whether public or private which are above suspicious should be excluded
if they are necessary for the decision of the case.

ADMISSION OF DOCUMENTS (RULE 4 – 7 )

Every document admitted in evidence in the suit – have following particulars endorsed

(i) Number and title of the suit

(ii) Name of person producing the document.
(iii) Date at which it was produced
(iv) A statement of its having been so admitted

RETURN OF DOCUMENTS (RULE 7, 9)

Documents not admitted in evidence shall be returned to person producing them.

RULE 9

Provides return of documents after disposal of suit, appeal or during pendency of suit,
necessary undertaking to produce the original in case if it is required. It is not allowed without
notice to other side.
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REJECTION OF DOCUMENTS (RULE 3, 6)

After recording reasons, reject at any stage of the suit if I is irrelevant or inadmissible.

IMPOUNDING OF DOCUMENT (RULE 8 )

The court may for sufficient cause, direct any document, book or exhibit produced before
it in any suit to be impounded and kept in the custody of officer of the court for such period and
subject to such conditions.

It may be exercised in case of forgery or apprehension that the document may be

destroyed (or) altered.

AFFIDAVIT (ORDER 19)

A sworn statement in writing made especially under Oath or on affirmation before any
authorized officer or magistrate. It is a declaration of facts made in writing and sworn before the
person having authority to administer oath.

ESSENTIAL OF AFFIDAVIT

1. It must be a declaration made by a person.

2. It must relates to facts.
3. It must be in writing.
4. It must be in the first person.
5. It must have been sworn or affirmed before Magistrate or any other authorized officer.

EVIDENCE ON AFFIDAVITS (RULE 1 – 3)

 Court may order that any fact may be proved by affidavit before ever it is by way of oral
evidence.

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  If any person desires to controvent the averments contained the affidavit of opposite
party, he must either file an affidavit in rely or cross examination the deponent.
 Averment based on personal knowledge, the source of information should be disclosed. It
should be told to sear only to what he knows to be true. What he believes to be true
should be mentioned separately.
 Unless affidavits are properly verified and are in conformity with the rules, they will be
rejected by the Court.

INTERIM ORDERS

Interim means for the time being, mean while, temporary. interim or interlocutory orders
are those orders passed by a court during pendency of suit or proceedings, which do not
determine finally the substantive rights and liabilities of parties.

Interim orders are necessary to dealt with and protect rights of the parties in the interval
between commencement of the proceedings and final adjudication. Interim orders may be

1. Commissions ( Order 26)

2. Arrest before Judgment (order 38)
3. Attachment before Judgment (Order 38)
4. Temporary injunction (Order 39)
5. Interlocutory orders (Order 39)
6. Receiver (Order 40)
7. Security for the costs (Order 25)
8. Payment in court (Order 24)

COMMISSIONS (ORDER 26 )

Section 75 to 78 deals with power to issue commissions. The power to issue commission
is discretionary and can be exercised by the court for doing full and complete Justice between the
parties.

PURPOSE – (SECTION 75 ) Commission may be issued for the purpose

1. to examine witness

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 2. to make local investigation
3. to adjust accounts
4. to make partition
5. to hold investigation
6. to conduct sale
7. to perform ministerial Act.

 When the person sought to be examined as a witness resides beyond the local limits of
Jurisdiction of Court
 Who being paramhansa, always remained Naked condition
 Witness apprehends danger of life if he appears before court
 Witness is a man of rank or having social status, it will be derogatory for him to appear
before the court.
 Sickness or infirmity or detriment to public interest

COURT MAY issue commissions for the examination on interrogatories or otherwise of the
person in following circumstances

1. person examined as a witness resides within the local limits of court’s Jurisdiction
2. is exempted under the code from attending court
3. is from sickness or infirmity unable to attend the court
4. in the interest of Justice or for expeditious disposal of case his examination on
commission will be proper.
5. If he resides beyond the local limits of Jurisdiction of the court
6. If he is about to leave the Jurisdiction of the court
7. If he is a government servant and cannot in the opinion of the Court, attend without
detriment to the public service.
8. If he is residing out of India and the court is satisfied that his evidence is necessary.

TO MAKE LOCAL INVESTIGATION (RULE 9 & 10)

To issues commission to make local investigation and to report there on for the purpose
of

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 1. elucidating any matter in dispute
2. Ascertaining market value of property or of the amount of mesne profit or damages or
annual net profits.

TO ADJUST ACCOUNTS (RULE 11 & 12)

In any suit in which an examination or adjustment of account is necessary the court may
issue commission

TO MAKE PARTITION (Rules 13 & 14)

Where a preliminary decree for partition of immovable property has been passed, the
court may issues commission to person as it thinks fit, to make partition, or separation according
to the rights declared in preliminary decree

Commissioner after inquiry divide the property into required numbers of shares and allot
them to the parties. The court afte hearing objecting to commission reports make final allotment

TO HOLD INVESTIGATION (RULE 10 – A)

Any question arising in a suit involves any scientific investigation which can’t in the
opinion of court be conveniently conducted expedient in the interest of justice so to do, the court
may appoint commission.

TO SELL PROPERTY (RULE 10 –C)

In any suit, it becomes necessary to sell any movable property which in the custody of the
court pending determination of the suit for the reasons to be recorded or expedient in the interest
of Justice issues commission

TO PERSON MINISTERIAL ACT (RULE 10 – B)

But involves the performance of any ministerial act, court may issue commission,
ministerial Act means not the office work of the court but work like accounting, calculation and
other work of a like nature.

POWERS OF THE COMMISSIONER (RULE 16 – 18)

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Commissioner may

1. summon and procure the attendance of parties and their witness and examine them
2. Call for and examine the documents
3. Enter into any land or building mentioned in the order
4. Proceed exparte if parties do not appear inspite of order of court.

RULE 18- B empowers the court to fix the date for return of commission

EXPENSES (RULE 15 )

Party requiring commission to deposit the necessary expenses within fixed period

COMMISSION FOR FOREIGN TRIBUNAL ( RULE 19 – 22 )

If the High Court is satisfied that a foreign court wishes to obtain evidence of a witness
residing within its appellate Jurisdiction in a procedure of civil nature, may issue commission for
the examination of such witness

ARREST BEFORE JUDGMENT (ORDER 38 RULE 1 – 4)

A Creditor having claim against debtor has first to obtain a decree against him, then
execute the decree by having him arrested or his property attached under provisions of order 21.

To enable the plaintiff to realize the amount of decree is passed in his favour.

Where at any stage of the suit, the court is satisfied either by affidavit or otherwise

1. That the defendant without intent to delay the plaintiff or to avoid any process of court or
to obstruct or delay execution of decree that may passed against him
2. Has absconded or left the local limits of the Jurisdiction of the court.
3. Is about to abscond or leave the local limits of the Jurisdiction of the court
4. has disposed of or removed from the local limits of Jurisdiction of the court his property
or any part thereof
5. That the defendant is about to leave India with intend to obstruct or delay execution of
any decree that may be passed

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 The court may issue a warrant of arrest to the defendant and bring him before the court to
show cause why he should not furnish security for his appearance.

Application for arrest may be made by plaintiff at any time after the plaint is presented
and even before service of summons is effected.

1. The plaintiff’s suit must be bonafide, and his cause of action must be prima facie is
impeachable.
2. The court must have reasons to believe on adequate materials

SECURITY

(RULE 2 – 4) Where the defendant fails to show cause why he should not furnish
security for his appearance, the court shall order him either to deposit in court money

Where the defendant fails to furnish security or to find fresh security has been discharged
from his obligations by the court.

WHERE ARREST BEFORE JUDGMENT NOT ALLOWED

Case of such nature that is a suit for land or immovable property

ARREST ON INSUFFICIENT GROUNDS

Court may order compensation not exceeding Rs. 50,000/-

ATTACHMENT BEFORE JUDGEMENT

(ORDER 38 RULE 5 – 12)

At any stage of a suit, the court is satisfied by affidavit or otherwise , the defendant with
intent to obstruct or delay the
a) is about to dispose of the whole or any part of the property
b) is about to remove the whole or any part of his property from the local limits of
Jurisdiction of the court. The court may direct within the time fixed, either to furnish
security of such sum as may be specified, to place and produce at disposal before the
court when required, the said property or the value of the same or such portion thereof as
may be sufficient to satisfy the decree.

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PRICIPLES

That the defendant is about to dispose of the whole or any part of his property

The disposal is with the intention of obstructing or delaying the execution of any decree
that may be passed against him.

MODE OF ATTACHMENT – ( RULE 7 )

Attachment shall be made in the manner provided for attachment of property in execution
of a decree

EXECUTION FROM ATTACHMENT (RULE – 12)

Court cannot order attachment or production of any agricultural produce in possession of

an agriculturist.

RIGHTS OF 3RD PARTY - RULE 10

Attachment before Judgment does not affect the rights of person existing prior to the
attachment, if they are non parties to the suit.

ADJUDICATION OF CLAIM – RULE 8

Any claim preferred to the property attached before Judgment shall be adjudicated upon
the manner provided for adjudication of claims to property.

RE – ATTACHMENT IN EXECUTION (RULE 11)

Where the property is under attachment, and decree is subsequently passed in favour of
plaintiff, it is not necessary to apply for fresh attachment of property in execution. The provision
of Order 21 applicable to an attachment made in execution of a decree will also apply to an
attachment before Judgment continuing after Judgment.

WITHDRAWAL OF ATTACHMENT (RULE 9)

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 Attachment before Judgment will be withdrawn if the defendant furnishes security or the
suit is dismissed.

ATTACHMENT ON INSUFFICIENT GROUNDS (SECTION 95 )

Order of Attachment before Judgment obtained an insufficient grounds by the plaintiff or

where the suits fails or it appears to the court that there was no reasonable or probable ground for
instituting application, the court may order the plaintiff to pay compensation such amount not
exceeding Rs,. 50,000/- for the expense or injury including injury to reputation caused to him.

TEMPORARY INJUNCTION – ORDER 39 RULES 1 – 5

An injunction is a Judicial process whereby a party is required to do or to refrain from

doing any particular act. It is in the form of order of the court addressed to a particular person
that either prohibits him from doing or continuing to do a particular act (Prohibitory injunction )
or orders him to carry out a certain Act (mandatory Injunction).

Purpose of granting interim relief is the preservation of property in dispute till legal rights
and conflicting claims of the parties before the court are adjudicated.

INJUNCTIONS ARE TWO TYPES

1. Temporary injunction
2. Permanent injunction

PERMANENT INJUNCTION

Restrains a party forever from doing a particular Act and can be granted only on merits at
the conclusion of trial after hearing both parties to suit. It is governed by section 38 to 42 of
Specific Relief Act 1963

TEMPORARY OR INTERIM INJUNCTION

Restrains a party temporarily from doing specific act and can be granted only until the
disposal of the suit or until further orders of the court.

INJUNCTIONS

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PREVENTIVE, PROHIBITIVE OR RESTRITIVE

i.e. When they prevent, prohibit or restrain some one from doing something

MANDATORY

i.e. When they compel, command or order some person to do something

WHO MAY APPLY

Plaintiff alone can apply for an interim injunction – Defendant may also make an
application for grant of an injunction against the plaintiff.

AGAINST WHOM IT MAY BE ISSUED

 Only against a party and not against a stranger or 3rd party. It cannot issued against a
court or Judicial officer.
 Normally against person within the Jurisdiction of the court concerned

GROUND FOR ISSUING – RULE 1

Temporary injunction may be granted

1. When the property in dispute is being wasted or damaged or alienated by any party to suit
or wrongly sold in execution of the decree
2. Where defendant threatens or intends to remove or dispose of his property with a view to
defrauding his creditors
3. Where a defendant threatens or dispossess the plaintiff or otherwise cause injury to the
plaintiff in relation to any party in dispute in the suit
4. Where the defendant is about to commit a breach of contract or other injury of any kind
5. Where the court is of opinion that the interest of Justice is required

PRINCIPLES

1. Prima facie case

2. Irreparable injury

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 3. Balance of convenience

DISCREATION OF COURT

Power to grant injunction is extraordinary in nature and it can be exercised cautiously and
with circumstances _

 it is not matter as of right.

 Purely on discretion of court it is granted

CASE LAW : Dalpat Vs. Prahalad

While granting or refusing to grant- Should exercise sound Judicial Discretion.

INJUNCTIONS MAY BE GREANTED

Interim injunction of maintaining status Quo, against transfer of property, disposal of

goods, making constructions, effecting recovery of dues, attachment of property, appointment of
receiver or commission against prosecution etc can be granted by court

INJUNCTIONS WHICH MAY NOT BE GRANTED

No interim injunction causing – administrative inconvenience or resulting in public

mischief should be granted

ORIDINARILY - No injunction can be granted against recovery of tax or Octroi,

enforcement of contractual rights and liabilities, transfer or suspension of employees delaying
election process, inferring with injury or investigation etc.

INHERENT POWER TO GRANT INJUNCTION

ORDER 39, Interim injunction can be granted by the court in exercise of inherent
powers U/s. 151

Notice (Rule 3) before granting injunction give notice to other opposite party except
where it appears –injunction would be defeated by delay

Where Exparte injunction is proposed to be given the court has to record reason

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EXPARTE INJUNCTION (ORDER 39 RULE 3)

An Applicant to issue notice to the opposite party before an injunction is granted. The
issuance of Notice of injunction is mandatory.

IN GRANT OF EXPARTE INJUNCTION

The court should bear in mind

1. Whether irreparable or serious mischief will ensue to the plaintiff

2. When refusal would in value greater injustice than grant of it
3. Time at which the plaintiff first had notice of act complained of would involve
4. Whether plaint acquiesced for some time - not granted
5. Party applies must show at most good faith
6. if granted, would be for a limited period of time
7. Prima facie case, balance of convenience and irreparable loss would be considered by the
court

RECORDING OF REASONS

In case of grant of exparte injunction, without issuing notice to opposite party, court to
record reasons

IMPOSITION OF CONDITIONS

Court should consider and accountable the consequences of order. In appropriate cases,
asked to furnish security for any increase in cost as a result of delay or damage suffered due to
such interim relief

DOCTRINE OF PRCEDENT

Interim orders has not precedential value and applicant cannot claim grant of interim
relief

RESTORATION OF BENEFITS

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 If it result in injustice to opposite party, it is not only the right but the court at the time of
passing a final order to undo injustice and to restore the “Status Quo ante”

APPEAL

An order granting or refusing to grant injunction is subject to appeal – Where exparte

relief is granted and applicant is not decided within 30 days, the aggrieved party may prefer
appeal against such order

REVISION

An order granting or refusing to grant injunction is “case decided” within the meaning of
Section 115, hence a revision lies against such an order.

Saharapur Corporation Cane Development Union Ltd Vs Lord Krishna Sugar Mills

BREACH OF INJUNCTION - RULE 2-A

Section 94 (c) and Rule 2 –A of order 39 – Incase of breach or disobedience of an order

of injunction – Court may impose penalty may be either arrest of the opponent or attachment of
his property or both.

INTERLOCUTORY ORDERS (ORDER 39 RULES 6 -10 )

Interlocutory order: Court has power to order sale of any immovable property which
subject matter of suit or attached before Judgment in suit.

RECEIVER – ORDER 40

An impartial person appointed by the court to collect and receive, pending the proceedings, the
rents issues and profits of the land or personal estate.

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APPOINTMENT - RULE 1 (a)

Where it appears to the court, to be just and convenient, it may appoint a receiver
Principles in appointment

1. Appoint is a discretionary power of court

2. It is protective relief object is preservation of property
3. Receiver should not be appointed unless plaintiff prima facie proves that he has very
excellent chance of succeeding the suit
4. It should be granted only to prevent manifest wrong or injury. Never appoint receiver
merely on ground that it will do no harm
5. It will be in the common interest of all the parties to appoint

POWERS RULE 1 (d) - The court may confer upon the receiver

1. To institute and defend the suit

2. To realize, manage, protect, preserve and improve the property
3. to collect, apply and dispose of the rents and profits
4. to execute documents / and such other powers as it thinks fit

DUTIES

Receiver has to furnish security, duly account what he shall receive in respect of
property, has to submit accounts for such period

LIABILITY

Failed to do so mentioned above, court orders to attach the property and sold and make
good any amount found to be due from him.

SECURITY FOR THE COST (ORDER 25 )

ORDER 25 RULE 1 Provides for the taking of security for the costs of the suit. At any stage
court orders plaintiff to give security for the payment of costs of the defendant. It is purely
discretionally – circumstances in which

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 1. Where the plaintiff resides outside India or where there one two (or) more plaintiffs and
all of them resides outside India
2. Where the sole plaintiff or none of the plaintiffs has sufficient immovable properties
within India other than the suit property

OBJECT

To protect the defendant in certain cases where in the event of success, they may have
difficulty in realizing there costs from the plaintiff

Orders shall be passed either Suo Moto or upon the application

FAILURE TO FURNISH SECURITY (RULE 2)

If security is not furnished within the time fixed or extended by the court shall
dismiss the suit unless plaintiff or plaintiffs are permitted to withdraw there from

PAYMENT INTO THE COURT – (ORDER 24)

It is open to plaintiff to abandon his suit, so also the defendant in a suit for debt or
damages to deposit in court such sum of money as he considers, a satisfaction in full of the
plaintiff’s claim. The deposited amount shall be paid to the plaintiff on his application unless the
court otherwise directs no interest shall be allowed to the plaintiff on the sum deposited by the
defendants.

WITHDRAWAL AND COMPROMISE OF SUITS

ORDER 23 deals with withdrawal and compromise of suits

1. Absolute withdrawal i.e. withdrawal without leave of court

2. Qualified withdrawal i.e. withdrawal withleave of court

ORDER 23 RULES 1 AND 2 WITHDRAWAL OF SUITS

WITHDRAWAL WITHOUT LEAVE OF COURT. RULE 1 (4)

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  At any time after the institution of a suit, plaintiff may abandon his suit or abandon a part
of his claim against all (or) any of the defendants without leave of court.
 This right is absolute and unqualified and a court cannot refuse permission to withdraw a
suit and compel the plaintiff to proceed with. Unless any vested rights comes into
existence before such prayed is made.
 It is made, the plaintiff will be precluded from instituting a fresh suit in respect of the
same cause of action plaintiff also becomes liable for such costs as the court may award.

WITHDRAWAL OF SUIT WITH LEAVE OF COURT RULE 1 (3)

The court is satisfied that suit must fail by reason of some formal defect, or on other
sufficient reason, Court allow the plaintiff to institute fresh suit for the subject matter or of a suit
or part of claim. May grant permission to withdraw such suit or such part of claim with liberty to
file a fresh suit in respect of same subject matter of the suit.

1. FORMAL DEFECT

 Want of statutory office under SECTION 80, mis joinder of parties or causes of action,
nonpayment proper court fee, stamp fee, failure disclose cause of action, mistake in not
seeking proper relief, improper and erroneous valuation of subject matter of suit, absence
of territorial Jurisdiction of the court or defect in prayer clause etc AND
 Non joinder of necessary parties, omission to substitute the legal heirs, omission include
all causes of action in the plaint, non –registration of partnership firm, bar of limitation,
deliberate undervaluation of subject matter of suit, addition of a new factual plea, failure
to bring legal representatives on record.

OTHER GROUNDS

Generally be constructed ejustem generis (of the same kind or nature) with formal defect.
Suit was premature or become in fructuous, where the plaintiff felt that the defendant was
absent and even if the decree was passed, it could not be executed.

LEAVE PERMISSION

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 be granted by the court either Suo Moto (or ) on application of the plaintiff,. Such
permission may be granted on such terms as to costs.

SUIT BY MINOR - RULE 1 (2)

Where he plaintiff is minor neither the suit nor any part of claim can be abandoned
without leave of court. An application for leave may be accompanied by an affidavit of the
next friend. If minor represented by pleader, certificate of pleader to the effect that the
proposed abandonment is in his opinion for the minor’s benefit.

WITHDRAWAL BY ONE OF THE PLAINTIFF : RULE 1(5)

Where there are more than one plaintiff in a suit the suit or part of the claim cannot be
abandoned or withdraw without the consent of all plaintiffs. However one of such plaintiff
may abandon (or) withdrawn from the suit to the extent of his own interest in it.

LIMITATION – RULE 2

A plaintiff withdrawing the suit with liberty to file fresh suit is bared by the Law of
limitation

APLICABILITY TO OTHER PROCEEDINGS

1. Appeals and revisions

Appellant has right to withdraw his appeal unconditionally. On application court may
grant it subject to costs. In appropriate case appellant court cane grant permission to withdraw a
suit with liberty to file fresh suit.

Court has no power to say that it will not permit and will go on to hearing the appeal.

2. representative suits

Where plaintiffs sues in a representative character he cannot abandon or withdraw the suit or
part of the claim he does not put an end to the litigation where other persons are interest in it and
have right to come in and continue the litigation.

3. Writ Petitions

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 Withdrawal of suit provisions also apply to the petition filed under Arti 32 and Art 226 of
constitution High Court or Supreme Court would not refuse to withdraw the petition if made by
petitioner or his pleader.

4. Execution Proceedings

The provision of order 23 do not apply to execution proceedings. The court has no power
to allow an application for execution to be withdraw with liberty to file fresh application.

5. Compromise Of Suits (Rule 3, 3-A, 3-B)

After the institution of the suit, it is open to the parties to compromise, adjust or settle it
by an agreement or compromise

(ORDER 23 RULE 3) - COURT SATISFIED THAT

1. Where the court is satisfied that a suit has been adjusted wholly or in part by any lawful
agreement in writing and signed by the parties
2. Where the defendant satisfied the plaintiff in respect of whole or any part of the subject
matter of the suit

The court shall record such agreement, compromise (or) Satisfaction and pass a
compromise decree accordingly

SATISFACTION OF THE COURT

If the agreement is lawful the court can pass a decree in accordance with it. Court also
consider that the decree can be enforced against all the parties to the compromise.

Court passing compromise decree performs Judicial Act and not a ministerial act.
Therefore court must satisfy itself by taking evidence or affidavits or other that the agreement is
lawful.

An agreement or compromise which is void or voidable Under Indian contract Act 1872
shall not be deemed to be lawful within the meaning of Rule 3

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 Where it is alleged by one party that the compromise has not been entered into (or) is not
lawful, it is the duty of ht ecourt to decide that question.

COMPROMISE ON BEHALF OF MINOR

No next friend or guardian of a minor shall without the leave of the court enter into any
agreement or compromise on behalf of the minor unless such leave is expressly recorded in the
proceedings

COMPROMISE BY PLEADER

An advocate appearing for a party there for has always an implied authority to enter into
compromise on behalf of his clients.

REPRESENTATIVE SUIT (RULE 3 B)

No agreement or compromise in a representative suit can be entered into without the

leave of the court. Before granting leave, notice to the interest parties should be given by the
court.

COMPROMISE DECREE AND RES JUDICATA

Compromise decree is not a decision of the court. It is acceptance by the court of

something to which the parties had agreed. It merely bears seal of the court. Court does not
decree decided anything. Hence compromise decree cannot operate as “Res Judicata”. Where as
a consent decree would operate as Res Judicata. It cannot be said that suit is heard and finally
decided by the court on merits. However may create estoppels between parties

EXECUTION OF COMPROMISE DECREE

A consent decree is executable in the same manner as an ordinary decree. But if the
decree gives effect to an unlawful compromise or is passed by the court having to Jurisdiction to
pass it a nullity and its validity can be challenged

BAR OF THE SUIT – RULE 3-A

No suit can be filed to set asdie a compromise decree on the ground that it is not lawful

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APPEAL

No appeal lies against a decree passed by the court with consent of parties nor a suit can
be instituted to set aside a compromise decree on the ground that such compromise is not lawful

A Compromise decree is a creature of an agreement and does not stand on a higher

footing than the agreement which preceded if it is therefore liable to be set aside on any of the
grounds which invalidates the agreement.

DEATH, MARRIAGE AND INSOLVANCY

Order 22 DEALS with the creation, assignment or devolution of interest during the pendency
of suit as well as appeal such devolution, creation and assignment may arise

1. Death of the party (rule 1 to 6)

2. Marriage of a party ( Rule 7 )
3. Insolvency of a party ( Rule 8)
4. Assignment of interest (Rule 10 )

1. Death of plaintiff ( Rule 1 to 6)

 Where the sole plaintiff dies, the suit will not abate if the right to sue survives. It can be
continued by the heirs and legal representatives of the deceased plaintiff. If the right does
not survive the suit will come to end.
 Where one of the several plaintiffs dies and the right to sue survives to the surviving
plaintiff or plaintiffs – Court may make an entry to that effect and proceed with the suit.
 Where one of several plaintiff dies and right to sue does not survives, the court on
application by the legal representative of the deceased plaintiff will make him a party and
proceed with the suit.
 Where plaintiff dies after hearing and before the Judgment, the suit shall not abate.

DEATH OF DEFENDANT

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  Where sole defendant lies, the suits shall not abate if the right to sue survives. It can be
continued against heirs and legal representatives of the deceased defendant. Where one of
the several defendants dies and the right to sue survives against surviving defendants, or
where the sole defendant dies and the right to sue survives, the court on an application by
the legal representatives of the deceased defendant, will make him a party and proceed
with the suit.
 Where no such application is made within the period of limitation ( 90 days ) the court
shall abate as against the deceased defendant
 Defendant dies after hearing and before the pronouncement of Judgment the suit shall not
abate. The suit also does not abate on account of the death of an unnecessary party.

RIGHT TO SUE

Means right to seek relief. Right to sue survives if the cause of action or continues

It is the general rule that “ all rights of action and all demands whatsoever, existing in
favour of (or) against a person at the time of his death, survive to or against his legal
representatives.

But in cases of personal action, i.e. action where the relief sought is personal to the
deceased or the rights intimately connected with the individuality of the deceased, the right to
sue will not survive to (or) against his legal representative.

“actio personalis moritur cum persona” (personal actions die with the person)

This rule does not applicable to suits in those cases where plaintiff dies during the
pendency of the suit and also during the pendency of the appeals.

A REPRESENTATIVE SUIT OR APPEAL

 does not abate on the death of one of the plaintiffs or appellants.

 As per Rule 10 – A,. pleader must inform the fact of death of the party represented by him
 Where there is no legal representative of the party who died during the pendency of the suit or
a legal representative is not found.

EFFECT OF ABATEMENT
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 Where the suit abates or is dismissed due to failure of the plaintiff to bring the legal
representative or representatives of the deceased party, no fresh will lie on the same cause of
action. The only remedy available to plaintiff or person claiming to be legal representative is to
get the abatement set aside.

SUIT AGAINST THE DEATH PERSON

No suit can be filed against a dead person. Such suit is non est and has not legal effect.
Likewise a decree passed aignast a dead person is a nullity.

MARRIAGE OF PARTY

The marriage of a female plaintiff or defendant shall not cause the suit to abate, where the
decree is passed against a female defendant it may be executed against her alone. A decree in
favour of (or ) against the wife, where the husband is legally entitled to the subject matter of the
decree or is liable for the debt of his wife may, with the permission of the court be executed or
against firm.

INSOLVANCY OF PARTY (RULE 8 )

The insolvency of the plaintiff shall not cause the suit to abate and can be continued by
his assignee or receiver for the benefit of his creditors. But if the assignee or receiver declines to
constitute the suit or give security for the costs as ordered on application of defendant, Dismiss
the suit on the ground of plaintiffs insolvency. Costs to be awarded and recovered as debt against
plaintiff’s estate.

INSOLVANCY OF DEFENDANT

Court may stay the suit or proceedings pending against the defendant who has been
adjudged as insolvent.

DEVOLUTION OF INTEREST (RULE 10)

Trial of suit cannot be brought to an end merely because the interest of the party in the
subject matter of suit devolved upon another during the pendency of the suit, but suit may be
continued against the person acquiring interest with the leave of the Court.

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 TRIAL

SECTION 30 TO 32 ORDER 16 TO 18

Provisions for summoning attendance and examination of witnesses

ORDER 16 – A

Confines attendance of witnesses confined or detained in prison

ORDER 17 – Deals with adjournments

ORDER 18 – Provisions for hearing of suit and examination of witness

SUMMONING AND ATTENDANCE OF WITNESSES – ORDER 16

RULE 1 SUB RULE 1

 The parties to suit have to present list of witnesses propose to call to give evidence or to
produce documents and to obtains summons for their attendance
 List of witness shall be presented on the date fixed by Court (or) not later than 15 days
after issues are framed
 Court has no Jurisdiction to decline to examine any witness

RULE 2 TO 4

 Provides for travelling and other expenses and remuneration of a witness for his
attendance in court
 Witness cannot be ordered unless he resides within the Jurisdiction of the Court

CONTENTS OF SUMMONS

1. The time and place at which he is required to attend

2. The purpose of his attendance
- For giving evidence

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 - For production of document
3. The document which he is called upon to produce should be described with reasonable
accuracy

SERVICE OF SUMMONS(RULE 8 )

Every summon to witness should be served as a manner as to summon / to witness as

contemplated in ORDER 5

FAILURE TO COMPLY WITH SUMMONS (RULE 10 )

1. Issue warrant for his arrest

2. attach and sell his property
3. Impose fine upon him not exceeding Rs.5,000/-
4. Order him to furnish security for his appearance and in default commit him to civil prison

ATTENDANCE OF WITNESS IN PRISON –ORDER 16 –A

 Attendance of prisoners to give evidence, if it is material in suit

 Prison is situated at a distance of more than 25 kilometers from Court house, no such
order shall be made unless the court is satisfied that the examination of such person on
commission will not be adequate

SUMMONS TO PRODUCE DOCUMENTS (SECTION 30 )

Provisions relating to issue of summons to give evidence will apply to summons to

produce documents or other material objects.

ADJOURMENTS (ORDER 17)

After the court starts hearing of a suit, it will be continued till final disposal – Hearing
once begun, shall be continued day to day and adjournments should be granted only for
unavoidable reasons.

DISCRETION OF COURT

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 To grant or refuse to grant adjournments is at the discretion of the court prove not subject
to rules.

WHEN ADJOURMENT MAY BE GRANTED

Granted inter alia on the grounds of sickness of party, his witness or his advocate, non
service of summons, reasonable time for preparation of case, withdrawal of appearance by
pleader at the last moment.

WHEN ADJOURNMENT MAY BE REFUSED

May be refused inter-alia on the grounds of engagement of advocate in another court,

unreasonable conduct of party (or) his advocate, refusal to examine or cross examine a witness,
assurance or undertaking by the party (or) his pleader at the previous hearing to proceed with
case at the next hearing, the case being very old, direction by the superior court to dispose of the
matter.

POWER AND DUTY OF THE COURT

In allowing or refusing adjournments, court has to ascertain grounds adduced is factually

correct and then to decide conduct of person may well taken into account – whether heirs saying
true or false

Case Law :SURENDRON VS. RAJENDRA AIR 1984 All (16)

“ Ground of preventing to appear or produce documents by the party, or doing something

which is necessary to be done for the hearing of the case for that particular day”

Adjournment was granted by the court. No adjournment shall be granted more than 3
times to a partly during hearing of the suit.

COST OF ADJOURNMENTS

While granting adjournments, the court shall direct the party seeking an adjournment to
pay costs (or) higher costs to opposite party.

FAILURE TO APPEAR (RULE 2)

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 Party failed to appear even on adjourned day the court may either to dispose of the suit in
one of modes mentioned in order 9 or to proceed with the case even in the absence of a party
where evidence or substantial portion has already recorded and pass such order as it thinks fit.

ORDER 9 PROVIDES

When party to suit to whom time has been granted fails

i) to produce his evidence

ii) To cause the attendance of witness
iii) To perform any other act necessary to further progress of the suit, for which time was
allowed, the court may
a) If parties are present proceed to decide the suit forth width
b) If parties are (or) any of them is absent proceed rule 2

RULE 3

(i) Adjournment must be granted at the instance of the party

(ii) Adjournment must be granted to enable such party
a) To produce his evidence
b) To cause attendance of the witness
c) To perform any other act, necessary for the further progress of the suit.
d) party must have failed to perform any of the acts for which time had been
granted

HEARING OF THE SUIT (ORDER 18)

The evidence shall be taken orally in open court in the presence of and under the personal
direction and superintendent of the Judge,.

Public confidence in administration of Justice is of great importance. It is good for

healthy, objective and impartiality of administration of Justice.

TRIAL - IN CAMERA

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 Where requirement of the administration of Justice itself may make it necessary for the
court to hold a trial in camera

RIGHTS TO BEGIN AND REPLY (RULES 1 – 3)

Section 101 to 114 of Evidence Act 1872 deals with Burden of proof.

SECTION 102

 Burden of proof lies on the party who would fail if no evidence at all were given on either
side
 Plaintiff has to prove his case / claim therefore he has right to begin, unless defendants
admits the facts alleged by the plaintiff and contends that either on point of law. (Res
Judicata, Limitation) or some additional facts alleged by him, the plaintiff is not entitled
to any relief, In that case, the defendant has right to begin.
 The party beginning may then reply generally on the whole case.
 Party has right to begin shall state his case and produce his evidence in support of issues
which be bound to prove.
 The other party then shall state his case and produce evidence of an generally address the
court as whole
 Burden of proving such facts lies on the other party. Party beginning at his option either
produce his evidence on those issues or reserves it by way of answer to evidence
produced by other party.
 If plaintiffs’ counsel is absence at the time of hearing (or) arrives late, in the mean time
counsel for defendant stands his arguments the counsel for plaintiff has no right to
interruption.
 Where a party wishes to be examined as a witness, he should first appear himself for
examination before other witnesses are examined.

Case Law : Sheela Barse Vs Union Of India (1988 SC 226)

RECORDING OF EVIDENCE (RULE 4 – 13)

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 Before amendment Act 2002 – evidence could be recorded in open court in the
presence and under personal direction and superintendence of the Act,

Lot of time of court was consumed – and cause delay in disposal of cases.

NEW PROVISION

Evidence can now be recorded by the court commissioner. He also records remarks
respecting demeanour of witnesses – report shall be submitted to court - shall form part of record
of the suit – i.e. affidavit

APPEALABLE CASES

Evidence of each witness shall be taken down by the judge in the language of court or in
English if the parties or their pleaders do not object

It should be in the form of a narrative and shall be read over to witness, interpreted to him
and signed by Judge Court may

i) for any special reasons, take down any particular question and answer or any
objection to any question.
ii) record such remarks as it thinks material respecting demeanours of witness.
iii) recall any witness at any stage of the suit who has been examined and put such
questions as it thinks fit.
iv) Permit any party to suit to produce the evidence which was not within his
knowledge(or) Could not be produced by him despite due diligence.
v) Make local inspection and make a memorandum of any relevant facts observed at
such inspection.

NON APPEALABLE CASES

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 Judge shall make or dictate directly on a type writer (or) cause to be mechanically
recorded, a memorandum of the substance of the deposition of witnesses.

EXAMINATION “DE BENE ESSES” ( RULE 16 ORDER 18 )

Generally witnesses are examined at the hearing of the sui. Rule 16 provides for
examination of witness before the hearing when he is about to leave the Jurisdiction of the
court or other sufficient cause is shown to the satisfaction of the court why his evidence
should be taken immediately. This is called de bene esses – examination and is permitted to
do justice between parties

EVIDENCE RECORDED BY ANOTHER JUDGE (RULE 15 )

Where a Judge is prevented by deaths, transfer or other cause from conducting the trial of
a suit, his successor may deal with evidence recorded by him and proceed with suit “ from
the stage at which it was left”

ORAL ARGUMENTS RULE 3-A 3-D - ORDER 180

Court may permit a party or his pleader to argue a case orally for which it is open to the
court to fix time limits

WRITTEN ARGUMENTS (ORDER 18 RULE 3 –A 3-D)

Court may allow a party or his pleader to submit written arguments in respect of his case.
Such written arguments shall form part of the record. Copy of such written Arguments shall
be supplied to opposite party. No adjournments should be granted for submitting written
arguments.

AMENDMENT ACT 2002 (ACT 22 OF 2002)

JUDGEMENT AND DECREE

 Definition of Judgment ( Section 2 (9) Order 20 Rules 1 to 5

 ORDER 20 RULES 6 TO 19 – DECREE
 RULE 6 – B AND 20 – FURNISHING A COPY OF JUDGMENT & DECREE
 SECTION 34 AND – relates to interests and costs
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  SECTION 35 –A AND SECTION 35 – B – Compensatory costs for false and vexatious
claims or defence (or) for causing delay
 Judgment means a statement given by the Judge of the grounds of a decree or order
 It is a final decision of the court intimated to the parties and to the world at large by
formal pronouncement “ Or delivery in open court.
 After the hearing is completed, the court shall pronounce Judgment in open Court.
 The Judgment must be dated and signed by the Judge
 RULE 2 Enables a judge to pronounce Judgment which is written but not
pronounced by his predecessor.
 Delivered within 30 days if not pronounced at once
 In exceptional or extraordinary circumstances it should be delivered within 60 days after
due notice to parties & pleaders

COPY OF JUDGMENT

Made available to parties immediately on payment of charges

CONTENTS OF JUDGMENTS (RULES 4 & 5 )

In case of Court of small causes

1. A Concise statement of the case

2. Point for consideration
3. Decision thereon
4. Reasons for such decisions

The suits, in which issues have been framed, the court must record its finding on each
separate issues with the reasons therefore

 In case of - Case contested by defendant by filing written statement.

 case which proceeds exparte and is ultimately decided in the absence of defendant
 Case in which no written statement filed and was decided under Order 8 rule 1.
 Court has to write a Judgment which must be in conformity with the provisions of the
code.
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RULE 6 – B -Provided for furnishing of type written Judgments

RULE – 20 Provides for furnishing of certified copy of Judgment and decrees to parties.

ALTERATION OF JUDGMENTS (RULE 3)

Judgment once signed cannot afterwards be amended (or) altered except

1. To correct clerical or arithmetical error or mistakes due to accidental slips or Omissions

(Section 152 )
2. On review ( Section 114 )

DECREE

 A Decree should be drawn up within 15 days from the date of Judgment

 If decree is not drawn up an appeal can be preferred without filing copy of Judgment (
Rule 6 _-A)

CONTENTS OF DECREE (RULE 6 )

Decree shall follow the Judgment, agree with it and bear

1. Number of the suit

2. Name and description of the parties and their residing addresses
3. Particulars of the claim
4. The relief granted
5. Amount of cost incurred in the suit and by whom or out of what property and in what
propositions they one to be paid.
6. The date on which the Judgment was pronounced
7. Signature of the Judge

RULE 8

Authorities the successor Judge to sign a decree drawn up by a predecessor

DECREE IN SPECIAL CASES (RULE 9 TO 19 )

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 In a suit for recovery of immovable property

DECREE : Contains description of property sufficient to identify

Example : Boundaries, Survey numbers Etc.

A decree for delivery of movable property must state amount of money to be paid as an
alternative if delivery cannot be had

DECREE FOR PAYMENT OF MONEY

Court may order payment of decree amount shall be postponed or shall be made by
installments with or without interest.,

Suit for recovery of possession of immovable property and for rent or mesne profit

The court may pass

1. a preliminary decree for the possession of property, for rent and mesne profit prior to
institution of suit or directing an inquiry as to such rent or mense profit
2. Final decree in respect of rent or mesne profit in accordance with result of the above
inquiry.

A decree for specific performance of contract for sale or lease of immovable property

Shall specify the period within which the purchase money or other sum to be paid by the
purchaser or the lessee.

Suit for an account of any property and for its due administration uner the decree of the
Court.

Before passing a final decree, the court should pay preliminary decree ordering accounts
to be taken and inquires to be made. Thereafter final decree shall be passed in accordance with
the result of the preliminary decree

DECREE IN PRE EMPTION SUIT

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 Where purchase money has not been paid into court – Shall specify a day on or before
which the purchase money shall be paid and direct that on payment into court of such purchase
money, the defendant shall deliver possession of the property to the plaintiff. But if the payment
is not made – the suit shall be dismissed

ADJUDICATED UPON RIVAL CLAIMS TO PRE EMPTION

Decree shall direct: if the claim decree are equal in decree –claim of each pre emptor
shall take effort proportionately. If the claims decreed on different in decree – the claim of the
inferior pre-emptor shall not take effect unless and until the superior, pre-emptor has filed to
make payment

In a suit for dissolution of partnership or taking partnership accounts

Court before passing final decree may pass preliminary decree declaring proportionate
share of the parties, fixing the day on which partnership shall stand dissolved and directing
accounts to be taken and other acts to be done.

In a suit for accounts between principal and agent

Before passing final decree the court shall pass preliminary decree directing account to be
taken – special directs for taking accounts and the mode taking are given by court.

A decree passed for partition of property or for separate the possession of a state there in.

(i) If estate is assessed for payment of revenue to the Government the decree shall
declare the rights of several parties interest in the property but shall direct
partition or separation to be made by the Collector ( section 54)
(ii) In other cases of immovable properties : if partition or separation cannot
conveniently be made without inquiry, court may pass preliminary decree
declaring rights of the parties in the property and giving necessary directions and
a final decree shall be passed

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 A decree where the defendant is allowed to set off or counter claim against the claim of
plaintiff – shall state what amount is due to the plaintiff and what amount is due to the
defendant.

INTEREST (SECTION 34 )

Definition

 A Charge that is paid to borrow for use of money. It is thus a compensation allowed by
law to the person who has been prevented to use the amount to which he is entitled.
 Where the decree is for payment of money, the court may award interest at such rate. On
the principal sum adjudged.

DIVISIONS OF INTEREST

1. Interest to the prior to filing of suit

2. Interest pendete lite i.e. from the date of suit to the date of the decree.
3. Interest from the date of decree till the payment

RATE OF INTEREST

From the date of decree to the date of payment is also at discretion of interest

 At the rate not exceeding 6 % per annum but not exceeding contractual rate of interest
 Agreed between the parties
 Banking and financial institution interest would be on which advance is made by such
institution

COMMERCIAL TRANSACTION

 Transaction connected with industry, commerce, or trade or business, rate of interest

would be that of which moneys are left or advanced by nationalized banks.
 Not finally at contractual rate as agreed by parties.

DECREE SILENT AS TO INTEREST

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  Where the decree does not provide for interest, it will be deemed to have been refused

Case Law : Union bank of India Vs. Narendra Plastics

INTEREST BY ARBITRATOR

Interest can be awarded by an arbitrator

INTEREST IN MORTGAGE SUIT - as awarded in mortgage suits

COSTS (SECTION – 35, 35-A, 35-B ORDER 20-A)

To award cost is discretion of the court. In civil proceedings Costs shall follow the event

KINDS OF COSTS

1. General costs – Section 35

2. Miscellaneous costs – order 20 –A
3. Compensatory costs for false and vexatious claims or defences – SECTION 35 –A
4. Costs for causing delay – SECTION 35 –B

Object is the litigant is to secure to him the expenses incurred by him in the litigation

 Costs one at discretion of court must be exercised on sound legal principles and not by
caprice, chance or humour
 No hand and fast rules laid down
 Successful party is entitled to costs unless they are good ground for depriving him of that
rights

MISCELLANEOUS COSTS are expenses incurred in giving notices typing charges, inspection
of records, obtaining copies and production of witnesses

- Costs are only indemnity and never more than indemnity

CONDITIONS

1. The claim or defence must be false or vexatious

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 2. Objection must have been taken by other party
3. Claim must have been disallowed or withdraw or abandoned in whole or in part

An order awarding costs is appealable. But no appeal lies against an order refusing
toward compensatory costs

COSTS FOR CAUSING DELAY ( SECTION 35 –B)

 Empowers court to impose compensatory costs on parties who are responsible for causing
delay at any stage of litigation. Such cost must be irrespective of the ultimate outcome of
the litigation
 The payment of cost must be a condition precedent for futher prosecution of the suit. It is
mandatory.
 In the event of party failing to pay costs, as directed by court, or enable to pay costs due
to circumstances beyong his control, such as strike of advocate, or staff, declaration of
the last day for payment of costs as a holiday, the court can extent the time.

SPECIAL SUITS

1. Suit by or against Government or public officers (SECTION 79 – 82, ORDER 27 )

REQUIREMENT OF NOTICE ( SECTION 80 (1)

Ordinarily Notice need not be given to the defendant by the plaintiff before filing suit.
Whereas Section 80 of C.P.C. declares that No suit shall be instituted against Government or
against public officer in respect of any act purporting to be done by such public officer in his
official capacity. Until expire of 2 months next after notice in writing has been delivered to or
left at the office of

1. In case of suit against central Government. Except where it relates to Railway. Secretary
to the Government.

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 2. Suit against Central Government where it relates to central Government the general
manager of that Railway.
3. Suit against the Government of the state of Jammu and Kashmir. The chief secretary to
that Government or any other office authorized by Government in that behalf.
4. Suit against any other Government : Secretary to that Government or the Collector of the
District.
5. In case of public officer : Such Public officer

SECTION ENUMERATES 2 TYPES OF CASES

1. Suit against Government

2. Suit against Public officer in respect of the act done or purporting to be done by such
public officer in their official capacity.

OBJECT OF NOTICE

Providing an opportunity to the Government (or) the officer to consider legal position and
to settle the claim put forward by the prospective plaintiff if the same appear to be just and
prayer

CASE LAWS : Bihari lal chowdary Vs. State of Bihar

Intended to alert the Government or public officer to negotiate just claims and to settle
them it well founded without adopting unreasonable attitude by inflicting wasteful expenditure
on the public ex cheques.

ESSENTIAL OF NOTICE

Notice U/s. 80 must contains

1. Name, description and place of residence of the person giving notice

2. Statement of the cause of action and
3. relief claim by him

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REQUIREMENTS OF NOTICE

1. Whether name, description and residence of plaintiff are given as to enable the authority
to identify the person giving notice.
2. Whether the cause of action and the relief which the plaintiff claims have been set out
with sufficient particulars.
3. Whether such notice in writing has been delivered to or left at the office of the
appropriate authority mentioned in the section.
4. Whether the suit has been instituted after the expiry of 2 months after the notice has been
served and the plaint contained a statement that such notice has been so delivered or left

Statutory notice is not an empty formality. It afford an opportunity to Government or

public officer to reconsider the matter in the light of settled legal position and taken an
appropriate decisions in accordance with law.

Statutory notice is explicit and mandatory and admits no implications or exception

CONSTRUCTION OF NOTICE

Section 80 C.P.C. must be strictly complied

1. Act purporting to be done in official capacity

Any act purporting to be done by such public officer in his official capacity takes within
its sweep acts as also illegal omissions. It also covers future acts.

All acts done or which could have been done under the colour or guide by an officer in
the ordinary course of his official duties would be included therein.

Allegations in the plaint relates to an act purporting to be done by public office whatever
the relief prayed for the section attached and notice is mandatory act does not means any
particular, specific or instantaneous act of a person but denotes a serious of acts

WAIVER OF NOTICE

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 Through issuance of notice U/s. 80 is mandatory and a condition precedent for the
institution of suit, it is merely procedural in nature and not a substantive one. It does not affect
Jurisdiction of the court.

Therefore it is open to the Government or public officer to waive

FORM OF NOTICE

Need not be in particular form. But it must complied all requirements of section

MODE OF SERVICE

U/s. 80 C.P.C. notice should be delivered to (or) left at the office, the appropriate
authority specified in the section. It should be given to secretary to Government collector of the
district, personal delivery is not necessary.

TECHNICAL DEFECTS IN NOTICE : SECTION 80 (3)

No suit instituted against the Government or against any public office shall be dismissed
merely on the ground of error or defect in the Notice.

Notice U/s. 80 cannot be invalid and no suit shall be dismissed on the ground that there is
technical error or defect in the notice or that the service of such notice is irregular

EXCLUSION OF PERIOD OF NOTICE

In computing the period of limitation for instituting a suit aisnt Government or public
officer, the period of notice has to be excluded

URGENT RELIEF U/S. 80(2)

enables the plaintiff to institute a suit against the Government or public officer for
obtaining urgent or immediate relief with the leave of the court even without serving notice to
the Government or public officer.

TITLE OF THE SUIT (SECTION 79 )

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 In a suit by or against government the authority to be named as plaintiff or defendant, as
the case may be shall be

(a) In case of suit by or against Central Government “ The union of India”

(b) In case suit by or against State Government “ The State”

STATEMENT IN PLAINT

Plaint can be presented after the expiration of 2 months of notice which must contain
statement that statutory notice U/s. 80 has been delivered or left

PARTIES

Where the suit is filed against public officer, in respect of any act purporting to be done
by him in his official capacity, the Government should be joined as a party to the suit

PROCDURE (ORDER 27 )

The plaint or written statement shall be signed by person appointed by the Government
who is acquainted with the facts of the case.

Person authorized by the Government deemed to be recognized agents. A counsel for the
state need not file a Vakalat, Government pleader can receive summons on behalf of
Government.

OTHER PREVILAGES (RULE 5 –B)

Government should joined as party duty on the Government in suit against government or
public officer to assist in arriving at a settlement.

Court shall exempt him from appearing in person. If it is satisfied that he cannot absent
himself from his duty without detriment to public service.

SECTION 82

Enacts that no execution shall be issued in any decree passed against the Government or
any public office unless it remains unsatisfied for 3 months from the date of decree

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SUIT BY ALIENS (SECTION 83 )

Alien enemies residing in India with permission of the central Government and lien
friends may sue in any court otherwise competent to try the suit as if they were citizens of India.
Alien enemies residing in India without such permission (or ) residing in foreign country cannot
sue in any court.

Every person residing in a country which is at war with india shall be decreed to be an
Indian enemy.

SUIT BY OR AGISNT FOREIGN RULES, AMBASSADOR AND ENVOYS (SECTION

84 TO 87 –A)

 A foreign state may sue in any competent court, provided that such suit is for the
enforcement of private rights vested in the ruler of that state or in any officer of such state
in his public capacity
 Foreign state means any state outside India which has been recognized by Central
Government.
 Likewise Rules of foreign state may be sued in the name of state
 Ruler in relation to foreign state means, the person who is for the time being recognized
by the central Government to be the head of the state.
 The central Government at the request of the ruler of Foreign state appoint any person to
prosecute or defend on behalf of such rules. Such person is deemed to be recognized
agent of Central Government.

SUIT AGAINST RULERS OF FORMER INDIAN STATES (SECTION 87 –B )

Any suit by or against the rulers of any former. India state which is wholly (or ) partly
upon a cause of action which arose before the commencement of the Constitution the same can
be filed in accordance with the provisions in relation to suits by or against foreign rules,
ambassador or envoys. Former Indian State Official gazette must specify.

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SUIT BY OR AGAINST SOLDIERS, SAILORS AND AIRMEN (ORDER 28)

Where any solider, sailor or airmen is a part to the suit, who is in actual service and is
unable to obtain leave for prosecuting or defending the suit, in personam, he may authorize any
person to sue or defend him. The person so authorized may himself prosecute the suit or depend
him

Summons on a solider, sailor or airmen may be served through his commanding officer.

SUIT BY OR AGISNT CORPORATION (ORDER 29 )

A corporation is a fictitious person or imaginary person invested by law with attribute of

person. It can sue and be sued in its corporate name Rule 1 of Order 29 provides, pleading must
be signed and verified on behalf of corporation by

1. The secretary
2. Any director
3. Other principal officer of the corporation able to depose of the facts of the case.

Summons may be served as per Rule 2

SUIT BY OR AGAINST PARTNERSIP FIRM (ORDER 30 )

1. Suit by or against partners ( Rule 1)

Two or more persons claiming or being liable as partners and carrying on business in
India. may sue and be sued in the name of the firm of which they were partners when cause of
action accrued. Any party may apply to court, for statement of names, addresses of persons who
were at the time of accrual of cause of action. Partners in such firm

If any partner died before filing or during pendency of suit it is not necessary to join his
legal representative as a party to the suit.

SUMMONS SERVICE (RULE 3)

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 Service of summons to the firm and its partners. Every person served shall be informed
by notice. Whether he is a partner and served as a person having contract or management of the
partnership business or in both capacities. In the absence of notice the person shall be deemed to
be served as a partner.

APPEARANCE BY PARTNERS (RULE 6- 8)

 The defendant partners shall appear individually in their own names in all subsequent
proceedings however continued in the name of the firm.
 If notice is served to person having control (or) management of the firm, he need not
appear unless he is a partner.
 Person deny partnership – shall be an issue triable.
 It does not preclude him from denying the liability of firm. Courts hold that he is not a
partner, it does not preclude the plaintiff from serving a summons on the firm and
proceedings with the suit.

SUIT BETWEEN CO –PARTNERS

Order 30 applies also suits between in firm and one or more of its partners therein and
suit between firm and one or more partners in common. No execution can be issued in such suit
except with the leave of the court.

SUIT AGINST PERSON CARRYING ON BUSINESS IN NAME OF OTHER

Any person carrying on business in the name of style other than of his own name (or)
Hindu undivided family carrying on business under any name may be sued in such name (or)
style as if I were a firm name all rules of Order 30 shall apply if nature of case permits.

DECREE IN PARTNERSHIP SUITS

Order 20 Rule 15 of C.P.C. provides for passing of preliminary decree by the court before
passing a final decree in suit for dissolution of partnership or taking of partnership accounts

EXECUTION OF DECREE AGAINST PARTNERSHIP FIRM

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 Order 21 Rules 49 and 50 provides for execution of a decree against partnership firm and
for attachment of partnership property.

SUIT BY OR AGAINST TRUESTEES, EXECUTORS AND ADMINISTRATIVES - Order

31

In suits between strangers and persons beneficially interested in the property vested in
trustees, executors or administrators, it is not necessary to join the beneficiaries as parties to the
suit. They can be represented by trustees, Executors Or Administrators.

All of them may joined as parties except

(i) The executors who have not proved the will of testator
(ii) Trustees, executors or administrators staying outside India

SUITS BY OR AGAISNT MINORE AND LUNATICS (ORDER 32)

Minor Rule (1)

Is a person who has not attained the age of 18 years. In case of minor of whose property
or person a guardian / next friend is appointed by Court, whose property is under
superintendence of court of wards, the age of majority is 21 years.

ORDER 32

Enacted to protect the interests of minor and persons of unsound mind and to ensure that
they are represented in suits or proceedings by persons who are qualified to act as such

AN INFANT

In law regarded as immature intelligence and discretion and owing to his want of capacity
and Judgment is disabled from binding himself except where it is for his benefit.

SUITS BY MINORS (RULE 1 TO 2 –A)

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 Every suit by a minor should be instituted in his name through his guardian or next
friend. If it is not done plaint will be taken off to the file.

Where minor is a plaintiff court may at any stage of the suit order his guardian or next
friend either an application or Suo Moto for reasons to be recorded, to furnish security for costs
of the defendants

SUITS AGAINST MINOR (RULE 3 )

Where a suit a instituted against minor, court should appoint a guardian ad litem to
defend the suit. Such appointment should continue throughout all the proceedings as including an
appeal or revision and in execution of a decree unless it is terminated by retirement, remove or
death of such guardian.

APPOINTMENT OF SUCH GUARDIAN OR NEXT FRIEND (RULE 4 )

Any person who attained majority and is of sound min, may act as a guardian, provided
his interest is not adverse to that of the minor, who is not the opposite party in the suit, and who
gives consent in wiring to act as guardian or next friend.

POWERS AND DUTIES OF GUARDIAN OR NEXT FRIEND ( RULES 5 – 7)

No guardian or a next friend can without the leave of the court

(i) Receive any amount or movable property on behalf of a minor by way of compromise
not enter into any agreement (or) compromise on his behalf in the suit. Application for
leave must accompanied by affidavit of next friend or guardian and if minor is
represented by a pleader with certificate of pleader, that such compromise is for benefit
of minor
(ii) Once any compromise or agreement is avoided by minor if has no effect.

RULES 6 & 7 provided that no Next friend or guardian of a minor for the suit shall without
leave of the court

a) Receive any money or other movable property on behalf of a minor either by way of
compromise before decree or order in favour of minor.

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 b) Enter into any agreement or compromise on behalf of a minor with reference for the suit,
unless such leave is expressly recorded in the proceedings.

RULES 6 AND 7 is designed to safe guard the interest of minor during pendency of the suit
against to file, the negligent or collusive acts of a next friend or guardian

INTEREST OF INFANT OF PARAMOUNT CONSIDERATION

It is the duty of the court to ensure that guardians and next friends act honestly and
exercise their discretionary powers bonafide in the interest of minor

RETIREMENT, REMOVAL OR DEATH OF GUARDIANS OR NEXT FRIEND ( RULE

8 – 11 )

A Next friend or guardian of minor cannot retire without first procuring a fit person for
substituting him and giving security for costs already incurred by him.

The court may remove the guardian or next friend if

1. his interest is adverse to that of a minor.

2. he is so connected with opposite party unlikely the interest of minor will be properly
protected by him
3. he does not discharge his duty
4. he ceases to stay in India during the pendency of the suit
5. There is any other sufficiently justifiable cause.

On retirement, removal or death of a guardian or next friend further proceedings in the suit
shall remain started until another guardian or next friend is appointed.

DECREE AGAINST MINORS (RULE 3 – A )

A decree against minor without appointment of next friend or guardian is null and void.
But cannot be said to be illegal nor can be set aside only on ground of interest adverse to that
of minor.

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MINOR ATTAINING MAJORITY.

On attaining majority the minor plaintiff may adopt any of the following

1. He may proceed with suit – file application to discharge next friend / guardian and to get
leave to proceed in his owner name.
2. He may abandon the suit, and apply for its dismissal on repayment of costs to the
defendant or his guardian / next friend.
3. He may apply for dismissal of the suit on the ground that it was unreasonable or
improper.
4. Where he is co – plaintiff, he may repudiate the suit and apply to have his name struck
off as co – plaintiff, it court finds that he is not a necessary party, it may dismiss him
from the suit, but if he is a necessary person / party, the court may make him a defendant.

ORDER 32 applies to lunatics and persons of unsound mind.

SUITS CONCERNING FAMILY MATTERS (ORDER 32 –A)

Ordinary Judicial procedure is not ideally suited to the sensitive area of personal
relationships. Litigation concerning affairs of the family require special approach keeping in
mind. Serious emotional aspects involved.

FRIENDLY SUITS (SECTION 90 ORDER 36 )

Is a suit where the parties do not approach a court by presentation of plaint as is done in
ordinary civil litigations. Enter into agreement in writing stating such question in form of a case
for the purpose of obtaining the opinion of the court may decided the questions that such
question is “FIT” to be decided.

CONDITIONS

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 1. The agreement is duly executed by the parties.
2. The parties have a bonafide interest in the question stated
3. The case is fit to be decided.

PROCEDURE

Order 32 Rules 1 and 2 agreement duly entered into between parties, should be filed in
the court having Jurisdiction to entertain the suit registered the suit, heard of and disposed of by
the Judgment which will followed by a decree.

INTERPLEADER SUIT (SECTION 38 ORDER 35)

Inter pleader means : to litigate each other to settle a point concerning a third party.

Where a person is under liability in respect of a debt in respect of any money (or) chattels
and he is expects to be in respect of that debt or money or those goods or chattels by two or more
person making adverse claims there to , he may apply to the court for the relief by way of
interpleader.

NATURE AND SCOPE

Is a suit in which the real dispute is not between a plaintiff and defendant but between
defendants, who interpleader each other, unlike ordinary suit. Plaintiff is not actually interest in
subject matter of the suit.

Two (or) more person claiming adversely to one another the same debt, sum of money,
other property movable or immovable from the person who does not claim any interest there in
except charges and costs incurred.

OBJECT

To get the claims of rival defendants a adjudicated.

CONDITION (SECTION 88 )

1. There must be sum debt, sum of money, other property movable or immovable in dispute

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 2. Two or more person claiming adversely to one another
3. Person from whom such debt, money or property claimed must not be claiming interest
there in other than charges and costs and he must be ready, willing to pay or deliver it to
the rightful claimant.
4. There must be no suit pending therein the rights of rival claimants can be properly
adjudicated.

PROCEDURE (ORDER 35 RULES 1-4)

In ever inter pleader suit, in addition to other statements the plaintiff must state.

1. The plaintiff claims no interest in the subject matter in dispute other than the charges and
costs
2. The claims have been made by the defendants severally
3. There is no collusion between plaintiff and nay of the defendants
4. The court may order the plaintiff to deposit the amount, or place the property in the
custody of the court and provide cots incurred by him by giving him a charge on thing
claimed

On the basis of evidence the court may also adjudicate title to the thing claimed.

An agent cannot file a interpleader suit or a tenant his landlord for the purpose of
compelling them to interplead with persons other than person claiming through such principles
(or) landlords.

SUITS BY INDIGENT PERSON ( ORDER 33)

It enables the persons who are too poor to pay court fees and allows them to institute the
suits without payment of requisite court Fees.

ORDER 33

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 Enables the indigent person to institute and prosecute suits without payment of court fees.
Exempts such person from paying the court fee at the first instance and allow him to prosecute
his suit in forma pauperis provided he satisfied certain conditions

AN INDIGENT PERSON is Person that

1. If he is not possessed of sufficient means to enable him to pay fee prescribed by law for
the plaint in such suit
2. Where no fee is prescribed, when he is not entitled to property worth one thousand rupees
( Rs. 1,000/-). In both case property exempt from attachment in execution of a decree and
subject matter of the suit should be executed.
3. The person includes “ Jurisdic person”

Every application for permission to sue as an indigent person should contain

1. Particulars required in regard to plaintiffs

2. A schedule of property movable or immovable belonging to the applicant with estimated
value there of
3. Signature and verification as provided in ORDER 6 RULES 14 & 15. Application should
be presented by the applicant in person to court where two or more plaintiffs – can be
presented by any of them.

REJECTION OF APPLICATION ( RULE 5 )

1. Where the application is not framed and presented in the prescribed manner.
2. Where the applicant is not an indigent person
3. Where the applicant within 2 months before presentation of application disposed of any
property fraudulently or in order to get permission to sue as an indigent person or where
there is no cause of action
4. Where the applicant has entered into agreement with reference to subject matter of suit
which another person has obtained interest.
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 5. Where the suit appears to be barred by law
6. Where any other persons entered into agreement with the applicant to finance costs of the
application.

INQUIRY ( RULE 1 – A )

On inquiry into the means of the applicant should be made by the chief ministerial
officer of the court. The court may adopt the report submitted by such officer or may itself
make an inquiry.

Where the application is in proper form and is duly represented, the court may
examine the applicant regarding the merits of the claim and the property of the application.

WHERE PERMIUSSION IS GRANTED (RULES 8 TO 9 – A)

Where an application to sue as indigent person is granted, it shall be deemed to be

plaint in the suit and shall proceed in ordinary manner except plaintiff will not have to pay
court fees or process fees. The court may assign a pleader to an indigent person if he is not
represented by the pleader. The central / State government make provisions for free legal aid
services to indigent persons to prosecute the case.

WHERE PERMISSION IS GRANTED ( RULES 15 to 15 -A)

Where the court rejects the application to sue as an indigent person it will grant time to
the applicant to pay court fees. An order refusing to allow an applicant to sue as indigent
person shall be a bar to a subsequent similar application.

REVOCATION OF PERMISSION ( RULE 9 )

ON an application by the defendant or by the government pleader revoke permission to

the plaintiff to sue as an indigent person in the following cases.

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 1. Where he is guilty of vexatious or improper conduct in the course of the suit
2. Where his means are such that he ought not to continue to sue as an indigent person.
3. Where he has entered into an agreement under which another person has obtained an
interest in the subject matter of suit.

REALISATION OF COURT FEE (RULE 14 )

Where the indigent person succeeds in a suit, the state government can recover court fees
from the party as per the directions in the decree and it will be the first charge on the subject
matter of the suit. Where an indigent persons fails in suit. Court fee shall be paid by him, where
suit abates due to death of plaintiff, such court fee would be recovered from estate of the
deceased plaintiff.

APPEALS BY INDIGENT PERSON (ORDER 44 )

A person unable to pay court fee on a memorandum of appeal may apply to allow him to
appeal. The necessary inquiry as prescribed in order 33 will be made before granting or refusing
the prayer.

But where the appellant was allow to sue as an indigent person in the trial court, no fresh
inquiry will be necessary if he files an affidavit that he continues to be an indigent person

SUITS INVOLVING QUESTIONS AS TO INPRETATION OF CONSTITUTION OR

VALIDITY OF STATUTORY INSTRUMENT (ORDER 27 –A)

In a suit or appeal in which substantial question of law as to the interpretation of

constitution as referred in Article 132 (1) of 147 of Constitution of India is involved, the court
shall not proceed to determine the question until after notice to the attorney general of India, if
the question concerns Central Government and to the advocate general of India of the state of the
question concerns the state.

MORTGAGE SUITS ( ORDER 34 )

 Order 34 lays down procedure with regard to suits relating to mortgage of immovable
property

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  Mortgage is the transfer of interest in the specific immovable property for the purpose of
securing the payment of money advanced or to be advanced by way of loan, an existing
or future debt or the performance of an engagement which may given rise to a pecuniary
liability.
 The transferor is called the mortgagor.
 The transferee is called the mortgagee.
 The Principal interest and money of which payment is secured for the time being are
called mortgage money and the instrument by which the transfer is effected is called
mortgage deed.

ESSENTIALS

1. Mortgagor
2. Mortgagee

The mortgagee has right to redeem his property from the mortgagee encumbrance while
the mortgagee has the right to sell the mortgaged property and the right to foreclosure by
depriving the mortgagor of this right of redemption.

PARTIES (RULE 1 ) (ORDER 34 RULE 1 )

All the person having an interest either in the mortgage security or in the right of
redemption shall be joined a parties to any suit relating to mortgage.

By the joinder of parties in mortgage suit, multiciplicity of proceedings be avoided. All

the rights / claims affecting mortgage security or the right of redemption may be disposed
off.

SUIT FOR FORECLOSURE ( RULES 2 – 3)

PRELIMINARY DECREE (RULES 2 – 3 )

If the plaintiff succeeds the court shall pass a preliminary decree

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 a) Ordering that the accounts be taken of what was due to the plaintiff at the date of such
decree for principal and interest on the mortgage, the costs of the suit award to him
changes and expenses properly incurred by him
b) declaring the amount so due
c) Directing that if the defendant pays into court, the said amount, on or before such date
fixed of extended by the court, the plaintiff shall deliver to the defendant all the
documents relating to mortgaged property and re transfer the property to the defendant
free from mortgage and all encumbrances created by the plaintiff and put the defendant in
possession there of. If the payment is not made by defendant the plaintiff shall be
entitled to apply for a final decree debarring the defendant from his right to redeem the
mortgage.

FINAL DECREE

Where the defendant makes payment of all amounts on or before the date fixed or
extended by the court on application made by him, pass a final decree directing the plaintiff to
deliver to the defendant all the documents referred in the preliminary decree, to re transfer the
property and to put the defendant in possession thereof.

Where no payment has been made by the defendant on or before the date fixed or
extended by the court for such payment the court shall an application made by the plaintiff pass a
final decree declaring that the defendant is de barred of his right to redeem the mortgage. If
necessary directing the defendant to put the plaintiff in possession of property.

SUIT FOR SALE (RULE 4 – 6 )

1. Preliminary decree

In suit for sale of plaintiff succeeds the court shall pass a preliminary decree. In case of
default by the defendant, the plaintiff is entitled to apply for final decre directing that the
mortgaged property the sold and sale proceeds be applied in payment of amount due to the
plaintiff

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2. Final decree

Where on or before the day fixed (or) at any time before confirmation of sale, the
defendant makes payment into court all amounts due, court shall on application made by him
pass a final decree directing plaintiff to deliver to te defendant on documents referred in
preliminary decree to transfer he mortgaged property and to put the defendant in possession
thereof

SUIT FOR REDEMPTION

1. Preliminary decree

In a suit for redemption, if plaintiff succeeds court shall pass preliminary decree in the afore
said manner, if plaintiff does not make the payment, the defendant shall be entitled to apply for
final decree the mortgage of property be sold or debarred plaintiff of his right redeem ( Right to
redeem)

2. Final Decree

Where before a final decree debarring the plaintiff of his right to redeem the mortgage
has been passed or before the confirmation of a sale, the plaintiffs pays all the amounts due, the
court shall on application being made by him pass a final decree directing the defendant to
deliver to the plaintiff all the documents referred to retransfer the mortgaged property and put the
plaintiff in possession there of.

The code also makes provisions for payment of costs Mesne profits and interest in
mortgage suits.

SUMMARY SUITS ( ORDER 37)

Order 37 provides summary procedure in the suits base on negotiable instrument or

where the plaintiff seeks to recover debt or liquidated amount.

Defendant is not a as in ordinary suit entitled of right to defend the suit. He must apply
for leave to defend within the stipulated period of 10 days. Such leave will be granted only if

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affidavit filed by the defendant disclose such facts to pove consideration or other facts as the
court may deem sufficient

To prevent unreasonable obstruction by the defendant who has no defence and assist
expeditious disposal of cases

EXTENT AND APPLICABILITY

Order 37 applied to high Court, city civil courts, court of small causes and other superior
courts, the apply to

1. Suits based upon bill of exchange hundies and promissory notes

2. plaintiffs to seeks to recover debt or liquidated amounts payable by defendant with or
without interest arising
3. on written contract
4. on an enactment where sum recovered sought to be recovered in a fixed sum of money of
debt other than penalty
5. on guarantee claim against principal in respect of debt for liquidated amount.

PROCEDURE (RULE 2 AND 3)

After summons issued to the defendant, the defendant must appear and plaintiff will serve
a summons for Judgment on the defendant. The defendants not entitled to defend a summary suit
unless he enter appearance. In default the plaintiff is entitled to a decree.

Defendant may apply for leave to defend within 10 days from the date of service of
summons upon him and such leave will be granted only if a affidavit filed by the defendant
disclose such facts as may be deemed sufficient to entitled him to defend leave to defend should
not be refused, unless the court satisfied that facts disclosed not indicate substantial defence or
the defense is frivolous or vexatious.

After summons if defendant does not apply for leave to defendant, court passed a decree
in favour of plaintiff

DIFFERENCE BETWEEN SUMMARY SUIT AND ORDINARY SUIT

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 Where in ordinary suit, the defendant is entitled to defend the suit as of right. Whereas in
summary suit he is not entitled except with leave of the court.

Where in an ordinary suit, decree cannot be set aside by the trial Court except on review,
in summary suit the trial court may set it aside under special circumstances.

SUIT RELATING TO PUBLIC NUISANCE (SECTION 91 )

Filing of a suit in case of public nuisance or other wrongful acts affecting the public at
large suit can be instituted for declaration, injunction or other relief which may be appropriate in
the circumstances of the case.

PUBLIC NUISANCE

An act or omission which causes common injury, danger of annoyance to the public, or to
the people in general who dwell or occupy property in the Vicinity or which must necessarily
cause injury, obstruction, danger or annoyance to the persons who may have occasion to use
public rights

Obstruction of a public high way, pollution of public water ways storage of inflammable
material endangering life, heath (or) property of public, ringing of bell day and night etc.

A suit relating to public nuisance may be filed by the Advocate general or by two or more
persons with the leave of the court.

REMEDIES

1. Person committing public nuisance may be prosecuted under IPC

2. Magistrate may remove public nuisance in certain circumstances by exercising summary
powers.
3. A suit can be instituted for declaration, injunction or other appropriate relief without
proof of special damages.
4. A suit may also be filed by a private individual where he suffered special damages.

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SUIT RELATING TO PUBLIC TRUSTS (SECTION 92 )

Filing of a suit in respect of breach of trust created for public purposes of a charitable or
religious nature by the Advocate Geeral or two or more person saving an interest in the trust with
the leave of the court for reliefs specified there in.

EXTENT AND LIABILITY

If a special nature for the protection of public rights in public trusts and charities.
Basically on behalf of all persons interest in the trust.

Beneficiaries choose 2 or more persons for filing the suit and is in the nature of
representative suits. Decisions of such suits would attract the doctrine of Res Judicata.

Main object is to provide protection of public trust of charitable or religious nature from
being subjected to harassment by suits filed against him and prevent malicious and vexatious
suits.

CONDITIONS

1. The trust must have been created for public purposes of a charitable or religious nature
2. There must be a breach of trust or direction of the court must be necessary in the
administration of such trust.
3. The relief claimed must be one or other of the reliefs specified in Section 92.
4. Provisions are mandatory in nature, if not complied, no suit can be instituted.

WHO MAY INSTITUTE

 Suit can be instituted by Advocate General and outside the presidency towns by the
collector or such officer as the state government may appoint in this behalf.
 Two or more persons having interest in the trust, who have obtained leave of the court for
filing the suit.
 Suit may be filed against persons in possession of trust property who claim adversely to
the trust (or) against trustees who have committed breach of trust.

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NOTICE

Court should normally issue a notice to the defendants before granting leave to file a suit

The defendant may satisfy the court, that allegations made in plaint are false and
frivolous, person applied for leave want to harss the trust.

If notice is not given to defendants, then it would not be bad and not maintainable.

RELIEF

1. Removing any trustee

2. Appointing a new trustee
3. Vesting any right in a trustee
4. Directing a trustee who have removed (or) ceased to be a trust, to deliver the
possession of any trust property in his possession to the person entitled thereto.
5. Directing accounts and inquiries
6. Declaring what proposition of trust property or of interest therein shall be allotted to
any particular object of the trust
7. Authorizing the whole or any part of the trust property to be let, mortgages or
exchanged.
8. Setting a scheme
9. granting further or other relief as in the nature of caste permits

DOCTRINE OF CYPRES

“ Cy pres” means as nearly as possible to the testators (or) donor’s intention when these
cannot be precisely followed.

Where there is a gift or trust for a charity which can be substantially but not literally
fulfilled, it will be effectuated by mounting it so that in the intention of benefactor may be
carried out.

The application of cypress has its own limitation. The court has no power authority or
Jurisdiction to deviate from the intention expressed by the settler on the ground of expediency.

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 APPEALS, REFERENCE, REVIEW AND REVISION

Appeals ( Section 96 to 112 and orders 41 to 45)

FIRST APPEAL Section 96 to 99 –A,107 Order 41

SECOND APPEAL SECTIONS 100 -103, 107, 108 ORDER 42

APPEAL FROM ORDERS Section 104 – 108 ORDER 43

APPEAL BY INDIGENT PERSON SECTION 44

APPEAL TO SUPREME COURT SECTION 109, 112 ORDER 45

REFERENCE SECTION 113 ORDER 46

REVIEW SECTION 114 ORDER 47

REVISION SECTION 115

APPEAL

The Judicial examination of the decision by a higher court of the decision of an inferior
court.

ELEMENTS OF APPEAL

1. A decision normally a Judgment of a court or the ruling of an administrative authority

2. A person aggrieved (who is other, though not necessary party, a party to Original
proceeding) and
3. A reviewing body ready and willing to entertain an appeal.

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RIGHT OF APPEAL

 A right of appeal is not a natural or inherent right. An appeal is a creature of statute and
there is no right of appeal unless it is given clearly and in express terms by statute. It is a
vested right accrued to the litigant and exists as an and from the date of lis.

 Such right commences at the date of institution of suit (or) proceeding but not at the date
of its decision or filing of appeal.

 This vested right can be taken away only by subsequent enactment.

 An applies lies against order passed by single Judge of High Court under section 397 and
398 of companies Act 1956, to the division bench. Such right cannot be taken away on
the ground that high Court not framed necessary rules for filing such appeal. Substitution
of new forum of appeal should not be inferred

SUIT AND APPEAL

RIGHT TO SUIT :

Inhere right of every person to bring the suit of civil nature unless barred by statute.

RIGHT TO APPEAL

Whereas no one and therefore an appeal for its maintainability must have the clear
authority of law.

Appeal is a continuation of suit is a decree passed by court of first instance. An appeal

virtually a rehearing of matter. Appellant court posses same power of Original Court.

Case Law : DAYAWATI VS. INDERJIT.

The right of entering a superior court and invoking its aid and interposition to redress the
error of the court below.

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 An appeal only review and corrects the proceedings in a cause already constituted but
does not create the cause.

WHEN APPEAL IS MADE, THE APPELLANT COURT CAN DO

1. It may reverse the order under appeal

2. it may modify that order
3. it may merely dismiss the appeal and thus confirm the order without any modification.

After disposal of appeal the operative order is the order of the appellant authority

PRINCIPLES OF APPEAL

In supreme Court in “ Garikapatti Vs. Subbiah Chowdry

1. legal pursuit of remedy, suit, appeal, second appeal.

2. The right of appeal is a substantive right
3. The institution of suit carries, all rights of appeal
4. The right of appeal is a vested right, such right to enter the superior court accrues to the
litigant and exists on and from the date the lis commences
5. This vested right can be taken away only by subsequent enactment

APPEAL AND REVISION

 The revisional Jurisdiction of a High Court is a part and parcel of the appellate
Jurisdiction of High Court. It is a Power confirmed by the Statute.
 Right of appeal carries with it a right of rehearing on law as well as on fact, unless statute
conferring the right of appeal limits the rehearing in one way or another.
 The power to hear a revision is given to superior court so that it may satisfy itself that
particular case has been decided according to law. to keep the subordinate courts within
the bounds of its authority established by Law.
 The High Court cannot, in exercise of revisional powers substitutes its own view for the
view taken by subordinate court.

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 Appeal is continuation of the proceedings in effect entire proceedings before appellate
authority and it has power to review the evidence subject to statutory limitations.

FIRST APEAL AND SECOND APPEAL

First appeal lies against a decree passed by a court exercising original Jurisdiction.
Second appeal lies against a decree passed by first appellate court.

First appeal can be filed in a superior court which may or may not be a High Court. But
second appeal can only be field in the High Court.

First appeal is maintainable on question of facts or questions of law or a mixed question

of facts and law. Second appeal can be filed only on a substantial questions of law.

A letter patent appeal can be filed against Judgment of single Judge of High Court to the
division bench of the same court. But no letters patent appeal lies against the decision rendered
by a single Judge of the High Court in second appeal.

CONVERSION OF APPEAL INTO REVISION

If an appeal is preferred in a cash in which no appeal lies, the court may treat the
memorandum of appeal as a revision or vice versa. There is no period of limitation for making an
application of conversion. But shall be filed with the time prescribed.

RIGHT OF APEAL : MATERIAL DATE

The right of appeal is a substantive and vested right and accrues in favour of litigant on
the day the lis commences. such right is governed by the law prevailing on the date of institution
of the suit in force at the time when Judgment is rendered / appeal preferred.

SECTION 96

1. An appeal shall lie from every decree passed by any court exercising original Jurisdiction
to the Court authorized to hear appeals from the decision of such Court.
2. An appeal may lie from an original decree passed exparte.
3. no appeal shall lie from a decree passed by the Court with the consent of parties.

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 4. No appeal shall lie except on a question of law from the decre in any suit of the nature
cognizable by courts of small causes, when the amount or value or subject matter of the
Original suit does not exceed three thousand rupees (Rs.3000)

WHO MAY APPEAL: Right of appeal from every decree passed by any court exercising
original Jurisdiction. No mention about person who may file appeal. But appeal filed subject to
conditions of

1. The subject matter of appeal is a “Decree”, a conclusive determination of “ The rights of

the parties with regard to all or any of the matters in controversy in the suit.
2. The party appealing must have been adversely affected by such determination.

The following persons one entitled to appeal U/s. 96

1. A party to the suit, who is aggrieved or adversely affected by the decree, if such party is
dead, his legal representative,
2. A person claiming under a party to the suit or proceeding or transferee of interest is
bound by a decree provided his name is entered on the record of the suit.
3. A guardian “ad litem” appointed by the court in a suit by or against a minor.
4. Any other person, with the leave of the court if he is adversely affected by the decree.

WHO CANNOT APPEAL

If a party agrees not to appeal (or ) waiver his right to appeal, he cannot file an appeal and
will be bound by an agreement if otherwise such agreement is valid. However such agreement
must be clean and unambiguous.

When a person accepts the benefits under a decree of the court, he can stopped from
questioning the legality of the decree

APPEAL AGAISNT EXPARTE DECREE (SECTION 96 (2)

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 Appeal is the remedy available to defendant, against whom an exparte decree is passed.
In an appeal against exparte decree, the appellate court is competent to go into the question of the
property or otherwise of the exparte decree passed by the trial court.

NO APPEAL AGAISNT CONSENT DECREE (SECTION 96 (3)

 No appeal lies against consent decree

 The presupposes that the parties in an action can expressly or implied by waive (or) furgo
their right of appeal by any lawful agreement or compromise or even by conduct.
 Once the decree has been passed with consent of parties Section 96 (3) becomes
operative and binds them. It creates an estoppels between the parties as a Judgment on
contest.
 When there is partial compromise and adjustment of a suit and a decree is passed in
accordance with it, the decree to that extent is a consent decree and is not appealable.

NO APPEAL IN PETTY CASES (SECTION 96 (4)

No appeal shall lies against the decree passed in petty cases where the amount of value of
subject matter in original suit does not exceed Rs. 10,000/-.

APPEAL AGAINST PRELIMINARY DECREE

An appeal lies against a preliminary decree. Final decree is but a machinery for
implementation of a preliminary decree. Failure to appeal against preliminary decree, precludes
the aggrieved party from challenging the final decree.

Where an appeal is filed against a preliminary decree and is allowed and the decree is set
aside, the final decree falls to the ground as ineffective since there is no preliminary decree to
support the final decree.

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NO APPEAL AGAINST FINAL DECREE WHERE NO APPEAL AAINST
PRELIMINARY DECREE

Any party being aggrieved by a preliminary decree must appeal against that decree if he
fails to appeal against a decree, the correctness of such a decree cannot be challenged by way of
an appeal against the final decree which means that the preliminary decree would be taken to
have been correctly passed.

APPEAL AGAISNT JUDGMENT

An appeal from a decree and form a Judgment. The aggrieved party however may file an
appeal against the Judgment, if a decree is not drawn up by the Court.

NO APPEAL AGAINST FINDING

Appeal – lies from every decree passed by any court exercising original Jurisdiction (
Section 96 )

Section 100 – allows second appeal to the High Court from ever decree passed in appeal.

An appeal lies against an order under section 104 r/w ORDER 43RULE 1

No appeal lies from other orders. An appeal lies only against a decree (or) an order which
is expressly made appealable. A finding recorded by a court of law may or may not amount to
decree (or) an order. No appeal lies against such adverse finding where suit is dismissed, the
defendant against whom some adverse finding has been recorded on some issues has no right of
appeal and he cannot question the finding by instituting an appeal.

APPEAL AGAINST DEAD PERSON

No appeal can be instituted against a dead person. Such appeal therefore can be regarded
as a “Still born” appeal. In such cases, an application can be made praying for the substitution of
the legal representatives of deceased respondent who dies prior to the filing of the appeal.

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FORM OF APPEAL

1. It must be in the form of a memorandum setting forth the grounds of objections to the
decree appealed from
2. It must be signed by the appellant or his pleader
3. It must be presented to the court or to such officer as it appoints in that behalf.
4. The memorandum must be accompanied by the certified copy of the decree
5. Memorandum accompanied by certified copy of Judgment unless the court dispenses
with it.
6. Where appeal is against a money a money decree, the appellant must deposit the
decreetal amount or furnish the security in respect there of as per the direction of the
court.

The memorandum of appeal must contain the grounds of objection to the decree appealed
from

Rule 2 precludes the appellant to urge, except with the leave of court, any grounds of objection
not set forth in the memorandum of appeal.

The memorandum of appeal shall be prepared after considering

1. The pleading
2. The issues
3. The finding thereon
4. The Judgment
5. The decree

Where memorandum of appeal is no in proper form, the court may reject it or return it to
appellant for the purpose of being amended.

FORM OF APPEAL

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 No one can claim that one’s appeal should be heard by a particular court change in the forum
of appeal therefore cannot be said to be prejudice the party.

VALUATION IN APPEAL

Valuation shall be subject to Jurisdiction and for Court fees.

PRESENTATION OF APPEAL

The court from whose decree an appeal lies shall entertain the memorandum of appeal, shall
make an endorsement there on and shall register the appeal in register of appeals.

LIMITATION

The appellant against a decree or order can be filed in a high Court within 90 days and in any
court within 30 days from the date of the decree or order appealed against.

CONDONATION OF DELAY ( RULE 3 – A)

Where an appeal has be presented after the expiry of the period of limitation specified
therefore, it shall be accompanied by an application that the applicant had sufficient caue for not
preferring the appeal within time.

STAY OF PROCEEDINGS (RULE 5 – 8 )

After an appeal has been filed, the appellate court may order stay of proceedings under the
decree (or) the execution of decree stay may be granted if sufficient grounds are established.

CONDITIONS TO BE SATISFIED BEFORE STAY IS GRANTED.

SUMMARY DISMISSAL (RULES 11 & 11 –A)

Rule 11 deals with power of the appellant Court to dismiss an appeal summarily. Under Rule
11 where the appeal is preferred, the appellate court is entitled after hearing the appellate or his

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advocate to reject the appeal summarily if prima facie there is no substance in it. Discretion must
be exercised Judiciously and not arbitrarily.

ABATEMENT

The provision relating to abatement of suit applies to appeal also.

ADMISSION OF APPEAL (RULES 12,14)

If an appeal is not summarily dismissed, the appellate court shall fix day for hearing of
the appeal, and notice of such date of hearing shall be served upon the respondent with copy
of memorandum of appeal.

DOCTRINE OF MERGER

Based on the principle that there cannot be at one and same time, more than one operative
decree governing the same subject matter. Hence as soon as an appeal is decided by appellate
court, the decree of trial court ceases to have existence in the eyes of the law and is
suspended by a decree by an appellate court.

The decree passed by trial Court merges with decree of appellate Court.

PROCEDURE AT HEARING (RULE 16 – 21)

The appellant has a right to begin. After hearing the appellant in support or the appeal, if
the court finds no substances in the appeal, it may dismiss the appeal at once without calling
upon the respondent to reply. But it does not dismiss a once, it will hear the respondent
against the appeal and the appellant shall then be entitled to reply.

DISMISSAL FOR DEFAULT AND RESTORAION RULES 17 – 19

If the appellant does not appear when appeal is called on for hearing, court dismiss the
appeal in default. however, appeal cannot be dismissed, although the notice has not been

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 served upon the respondent, if the respondent appears when the appeal is called on for
hearing.

Where appeal is dismissed for default or for non - payment of process for, appellant may
apply to court for restoration of the appeal. On sufficient cause being shown, court shall
restore the appeal on such terms as to costs.

EXPARTE HEARING AND REHEARING (RULES 17 & 21 )

Where the appellate appears and respondent does not appear when the appeal is called on
for hearing the appeal shall be heard exparte. If Judgment is pronounced against the
respondent he may apply to the appellate court for rehearing of the appeal however no
exparte decree should be passed by a court except on reliable evidence.

ADDITION OF RESPONDENT ( RULE 20)

Where it appears to the appellate court at the meaning of the appeal that any person who
was a party to the suit in the trial court but who has not been made a party to the appeal is
interested in the result of the appeal, the court may adjourn the hearing of the appeal and
direct such person be joined as a respondent.

CROSS OBJECTIONS ( RULE 22 )

Order41 Rule 22, is a special provision permitting the respondent who has not filed an
appeal against the decree to object to the said decree by filing cross objections in the appeal
filed by the opposite party.

Where the suit is partly decided in favour of the plaintiff and party in favour of the
defendant and the aggrieved party files an appeal, opposite party may adopt.

1. he may prefer an appeal from that party of decree which is against him. Thus there
may be two appeals against the same decree one by the plaintiff and others by the
defendant. They are known as cross – appeals. Both appeals disposed of together.
2. He may not file an appeal against the part of the decree passed against him but may
take objection against the same. Such objections are called cross objections.

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 3. Without filing a cross appeal (or) cross objections, he may support the decree
(a) on the grounds decided in his favour by the trial Court
(b) Even on the grounds decided against him

CROSS OBJECTIONS CAN BE FILED BY THE RESPONDENT.

1. If he could have filed an appeal against any part of the decree (or)
2. If he is aggrieved by a finding in the Judgment, even though the decree is in his favour
because of some other finding.
3. The right to file cross – objections is substantive in nature and not merely procedural.
4. Cross objection can be filed only against the appellant, in exceptional cases, on
respondent may, file cross objection against the other respondents.
5. Cross objections cannot be allowed against a person who is not a party to the appeal
6. The respondent has filed cross objections, even if the original appeal is withdrawn or
dismissed for default, they will be heard and decided on merits.
7. Where appeal is withdrawn or dismissed for default and cross objections are decided on
merits, restoration of appeal and rehearing will not automatically warrant rehearing of
cross objection.
8. But where appeal is dismissed as time barred (or) has abated, or is held to be not
maintainable the cross objections cannot be heard on merits as they are contingent and
dependant upon the hearing of the appeal.
9. Cross objections shall be in the form of a memorandum of appeal
10. Memorandum of cross objection shall be filed within one month from the date of service
on the respondent or his pleader of the notice of the date fixed for hearing of the appeal

POWERS OF APPEALLATE COURT ( SECTION 107, RULE 23 – 29 & 33)

a) Final determination ( Section 107 91) (a) Rule 24 )

b) Remand ( Section 107 (1) (b) rules 23 & 23 – A )
c) Framing of issues and referring them for trial ( Section 107 (1) © Rule 25 & 26
d) Additional Evidence ( Section 107 (1) (d) Rules 27 – 29)
e) Modification of decree ( Rule 33 )
f) Other powers ( Section 107 (2)

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a) Final determination

The appellate court to dispose of a case finally where evidence is sufficient to enable the
appellate court to pronounce Judgment, it may finally determine the case notwithstanding that
judgment of the trial court has proceeded wholly upon some ground other than that on which the
appellate court proceeds. Court should dispose of on the evidence on record and should not be
remanded for fresh evidence except in rare cases.

B) Remand Means to send back

Where trial Court has decided a suit a preliminary point without recording holding on
their issues and if the appellate court reserves the decree so passed, it may send back the case to
the trial court to decide after issues and determine the suit

By passing an order of remand, an appellate court directs the lower court to reopen and
retry the case

CONDITIONS REMAND CANNOT BE ORDERED LIGHTLY BUT UPON

CONDITION.

1. The suit must have been disposed of by the trial Court on a preliminary point
2. The decree under appeal must have been reversed.
3. other Grounds: In the interest of Justice : remand can be ordered

EFFECT

An order of demand reverses the decision of the lower court and reopens the case for
retrial by the lower court except in matters decided by the appellant court.

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 OF EXECUTION

 Court which may execute the decrees

 Courts which passed the decree

SECTION -37- Court which passed the decree:-

 Court of first instance which actually passed the decree

 Court of first instance in case of appellate decrees
 Where court of First instance ceased to exist, the court which would have Jurisdiction to
try the suit at the time of execution
 Where court of first instance has ceased to have Jurisdiction to execute the decree, the
court which at the time of execution would have had Jurisdiction to try the suit.

Court by which decrees may be executed – Section - 38.

 A decree may be executed either by the court which passed of or by the court to which it
sent for execution.
 Court which neither passed decree nor sent it for execution, cannot execute the decree

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Case Laws :

1. Ghantesher Vs. Madan Mohan

2. In Merla Ramana Vs. Nallaparaju

Court Held : It is settled law that, the court which actually passed the decree does not lose its
Jurisdiction to execute it, by the reason of the subject matter there of being transferred
subsequently to the Jurisdiction of another Court.

SECTION 39 – 42 ORDER 21 RULE 3 – 9

TRANSFER OF DECREE FOR EXECUTION

Section - 39 – provide for transfer of decree by the Court which passed it

1. Generally Court passed the decree is primarily the court to execute

2. Court may send decree for execution to another Court either Suo Moto or on application
of the decree Holder.

Grounds for Transfer

1. Judgment – Debtor resides, doing business or works foreign within Jurisdiction of

another Court.
2. Judgment does not have property to satisfy the decree within Jurisdiction of Court which
passed decree but has property within the local limits of Jurisdiction of such other Court.
3. Decree directs sale or delivery of property immovable situated outside Jurisdiction of
such Court.
4. Court which passed decree considers it is necessary for any other reason to be recorded in
writing that decree should execute by that other Court.

Execution of foreign Decree in India – Section 43, 44,44-A

Indian Courts have power to execute the decree passed by

1. Indian Courts to which provisions of C.P.C. do not apply

2. Courts situated outside India established by Central Govt.

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 3. Revenue Court to which C.P.C. do not apply
4. Superior Courts of any reciprocating territory.

SECTION -45

 Execution in foreign territory of the decrees passed by Indian Courts.

 The code of Civil Procedure does not prevent a decre holder from executing the decree
simultaneously at more than one place against property of Judgment debtor.

PROCEDURE IN EXECUTION

Where the decree is sent for execution to another court – the court which passed the
decree shall send the decree to such other court with –

1.Copy of the decree

2. Certification of satisfaction or non satisfaction of decree

3.Copy of an order for execution of decree or if no such order is passed, a certificate to that
effect.

Once the decree has been transfers to other court, the court which passed the decree
ceases to have Jurisdiction and cannot execute the decree. It is only the transferee court to which
an application for execution lie.

POWERS OF TRANSFEREE COURT

Once the decree is transferred for execution to another court, the transferee court shall
have all powers to execute the decree as it has passed by the transferee court. Case Merla
Rammanna Vs. Nallapparaju

After the transfer of a decree, it is the transferee court which will decide all questions
arising in execution proceedings –Malradeo Prasad sing Vs. Ramlachan

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POWER OF EXECUTING COURT – SECTION 42.

Code require that the court executing the decree does no exercise power in respect of
matters which could be determined only by court which passed decrees

1. Territorial Jurisdiction is a condition precedent – no court should execute decree in

respect of property situate entirely outside its local Jurisdiction.
2. An executing Court cannot go behind the decree. It must take the decree as it stands and
execute it.
3. In case of inherent lack of Jurisdiction the decree passed by court is Nullity, its invalidity
could be setup whenever and wherever it is sought to be enforced in law there is no
decree at all.
4. Inherent lack of Jurisdiction trust appear on the face of the record. If decree an face of it
discloses some material, on satisfy which court could execute the decree but cannot go
behind decree if go behind, would exact it the status of superior court sitting in appeal.
5. A Decree which is otherwise valid and executable, does not become in executable on
death of decree Holder (or) or Judgment Debtor – can be executed against legal
representatives – Ramasami Vs. Kailasa Devar
6. When the terms of decree become vague and ambiguous the executing court can continue
the decree to as certain its precise meaning.
7. An executing court can go into the question of the executability or otherwise of the
decree and consider any subsequent developments, the decree has ceased to be executable
according to its terms.
8. A Decree becomes in executable by operation of law may become executable by virtue of
subsequent amendment in the statute and can be executed.
9. The executing court may should the relief granted to the plaintiff in accordance with
changed circumstances.
10. The transferee court executing the decree has the same powers in executing the decree as
if it had passed it.

WHO MAY APPLY FOR EXECUTION - ORDER 21 RULE 10

1. Decree Holder

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2. Legal representatives of Decree Holder if Decree Holder died

3. Representatives of Decree Holder

4. Any person claiming under Decree Holder

5. Transferee of Decree Holder if following conditions satisfy

a) Decree must have been transferred by an assignment in writing or by operation of law

b) The application for execution must have been made to the court which passed the decree
c) Notice and opportunity of hearing must have been given to the transferor and Judgment
Debtor in case of assignment by transfer giving notice is mandatory – in the absence of
it execution would be void – notice concerning assignment or transfer – more than one
decree Holders,

CONDITIONS

1. Decree should not have imposed any condition

2. Application have to be made for execution of whole decree

3. Application must have been for the benefit of all the joint decree Holders.

4. Decree in a representative suit, person represented such suit may apply for execution even if
he is not on record

Case. Swaminatha Vs. Kumara Sami

 A Real beneficiary may also apply for executing receiver appointed by court also apply
for execution
 in that case an insolvent may make application before he is adjudicated as insolvent
 An agent of the Decree Holder can maintain execution

WHO CANNOT APPLY – SECTION 146

A person neither a decree Holder not has a right to execute the decree cannot apply for
execution.

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 Third party or stranger also not to file execution event it he is a beneficiary under
compromise

Receiver can apply for execution but if he died his son cannot continue the proceedings

Against whom execution may be taken

1. Judgment Debtor
2. Legal representative of Judgment Debtor’s if Judgment Debtor is dead
3. Representative or person claim of under Judbment Debtor.
4. Surety of Judgment Debtor.

To whom the application is made

1. To the Court which passed the decree.

2. To the Court which the decree is transferred for execution.
3. Where territorial Jurisdiction of a court is transferred after passing the Decree, an E.P.
may be filed either in the court which passed the decree or in the court to which territorial
Jurisdiction was transferred. Deshbund Gupta Vs. Anand.

Form : An application for execution shall be in Form No. 6 of Appendix E to 1st schedule.
But even if the E.P. is in proper form, the defect is not vital or material.

CONTENTS OF APPLICATION FOR E.P. ORDER 21 RULE 11

1. Except in case of money decree every E.P. shall be in writing signed and verified by
applicant or by some other person acquainted with facts of case.
2. It shall contain number of suit, names of parties, date of decree, amount of decree etc.
3. Where an application is made for attachment of property belonging to Judgment Debtor
but not in his possession EP must accompanied with by an inventory of property,
accurate description of property.
4. If application is for attachment of growing crops. It must specify time at which it is
harvested.

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 5. If the E.P. for attachment of immovable property – it shall state description of property
sufficient to identify the property – shall specify the Judgment Debtors share / interest in
it.
6. Where EP is for arrest and detention in prison of the Judgment Debtor accompanied with
affidavit state reason for the arrest.
7. Where E.P. is for attachment of land, registered in the office of Collector – Court may
require the applicant to produce certified extract of Register.

Procedure of receiving application for Execution

1.Admission – Order 21 Rule 17

2. Hearing of application Order 21 Rule 105 – 106.

- If application is dismissed for default or an exparte order is passed under Order 21 Rule
105, then the aggrieved party may apply to the Court to set aside the order. The Court on
sufficient grounds shows shall set aside

An order rejecting an E.P. under Order 106 (1) is appealable.

Case Law. V.A. Narayana Vs. ORMMSUM Meyyappa

NOTICE OF EXECUTION ORDER 21 RULE 22

1. Rule 22 provide issue of show cause notice to persons against whom execution is applied
for. As a general rule notice not required to be issued. but in following cases notice must
be issued.
2. Where application made after 2 years of the date of decree or more than 2 years after of
last order made on any previous application for E.P.
3. Where an E.P. is made against legal representatives of Judgment Debtor
4. where an E.P. is filed for execution of decree passed by a court of reciprocating territory.
5. Where an E.P. is made against assignee or receiver of insolvent Judgment Debtor.
6. Where the E.P. is for payment of money and execution is sought for arrest and detention
of Judgment Debtor.
7. Where an E.P. is made against surety.

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 8. Where an E.P. is made by the transferee or assignee of the Judgment Debtor.
9. Objection of issuing notice to the Judgment Debtor not only afford him opportunity to put
objection but also to prevent from being taken by surprise and enable him to satisfy the
decree before execution. Not ultra vires the Article 14 of constitution. But is intended to
safe guard the interest of Judgment Debtor.
10. Omission to give notice is a defect which goes to the root of the proceedings and renders
them null and void.

PROCEDURE AFTER NOTICE – ORDER 21 RULE 23

Person to whom notice is issued Under Rule 22 does not appear or does not show cause
against execution the court shall unless if fees contrary, issue process for the execution of the
decree

LIMITATION

The period of limitation for execution of the decree (other than the decree granting
mandatory injunction ) is 12 years from the date of the decree

For decree of mandatory injunction is 3 years from the date of the decree.

EXECUTION APPLICATION AND RES JUDICATA

The doctrine of Res Judicata applicable to execution proceedings. But before an earlier
decision can operate as Res Judicata, the execution application must have been heard and finally
decided by the court on merits.

If an execution petition is dismissed for default of appearance of for non appearance or as

being pre mature or as being belated or on the ground that it is not pressed or is not maintainable.
The order will not operate as Res Judicata. A Fresh EP on the same ground for the same prayer is
not barred.

STAY OF EXECUTION – ORDER 21 RULE 26

The executing court shall on sufficient cause being shown and on the Judgment debtor
furnishing security or fulfilling such conditions as may be imposed on him – stay execution of

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decree for a reasonable time to enable the Judgment Debtor to apply to the court which passed
the decree or to the court of appeal for an order of stay.

The power of stay execution of decree by a transferee court is not similar to power of
transferor court which passed the decree.

Where transferor court grant absolute stay the transferee court can stay execution for
some reasonable time enabling the Judgment Debtor to apply to transferor court or to appellate
court to stay against the execution – orders can be made only on application by Judgment
Debtor. Transferee court cannot invoke powers to grant stay.

DISTINCTION BETWEEN QUASHING OF ORDER AND STAY OF ORDER

Quashing of orders means no such order had ever been passed and there is restoration of
position as it stood prior to passing of order. Stay order however means that the order is vary
must there but its operation is stayed.

CASE LAW.

Srichamundi mopeds Ltd Vs. Church of South India trust Assn.

REVIVAL OF EXECUTION PROCEEDINGS.

An order of restitution of property or the discharge of Judgment Debtor under Rule 26

shall not prevent the court from restarting the E.P. proceedings

STAY OF EXECUTION PENDING SUITS : ORDER 21 RULE 29

Where a suit by Judgment Debtor is pending in a court against the Decree Holder such
court may on Judgment Debtor furnishing security or otherwise as it thinks fit stay execution of
the decree until the disposal of such suit.

OBJECT IS TO

1. Enable Judgment Debtor and Decree Holder to adjust their claims against each other.

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 2. To prevent multiplicity of proceedings

This rule shall apply to

Where two simultaneous proceedings in one and same court.

 Proceeding in execution of decree at the instance of Decree Holder against Judgment

Debtor
 A suit at the instance of Judgment Debtor against the Decree Holder.
 So long as the decree is not set aside by a competent court t holds good and effective
party should not be deprived of the limits of the decree obtained by him from a competent
court merely because a suit has subsequently been filed for setting aside that decree
 A decree passed by a competent court should be allowed to be executed and unless a
story case is made out on cogent grounds no stay should be granted.
 Even if the stay is granted it must be on such terms as to security etc. So earlier decree is
not made in effective due to lapse of time

Case Law : Shri Krishna singh Vs. Mathura Abir.

DISTINCTION BETWEEN ORDER OF INJUNCTION AND ORDER OF STAY.

1. Order of injunction is an order against a person or an individual restraining him from

doing something.
2. Order of stay is a direction is a direction or an order a court not to do something
proceedings taken in contravention of injunction order are null and void, being without
Jurisdiction. The effect of non – compliance of order of injunction may make the person
liable to punishment.
3. Proceedings in contravention of the order of stay, on the other hand, are a nullity and of
no effect what so ever

Case Law

1. Subhas kumar Vs. Sheo Balak Singh

2. Mulraj Vs. Murti Raghunathji Maharaj.

MODE OF EXECUTION – SECTION 51

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 A decree may be enforced in more than one mode by the decree holder at in option to
choose a particular mode for execution. It subject to such conditions and limitations as
prescribed by code. It also subject to the discretion of the Court.

POWER OF COURT TO ENFORCE EXECUTION

The court may on application of the Decree Holder order execution of the decree

1. By delivery of any property specifically decreed.

2. By attachment or sale or by sale without attachment of any property.
3. By arrest and detention in prison for such periods not exceeding the period specified in
Section 58 where arrest and detention is permissible.
4. By appointing a receiver.
5. In such other manner as nature of relief may require

Where the decree is for payment of money, execution by detention is prison shall not be
ordered unless after giving Judgment Debtor an opportunity of showing cause why he should
not be committed to prison, the court for reasons recoding in writing

a) That the Judgment Debtor with object or effect of obstructing or delaying the execution
of the decree
b) is likely to abscond, or leave local limits of the Jurisdiction of the court
c) That the Judgment Debtor has or had since the date of decree the means to ay the amount
of decree or some substantial part thereof and refused or neglects or has refused or
neglected to pay the same
d) has after the institution of the suit in which decree was passed dishonestly transferred,
concealed or removed any part of his property or committed any other act of bad faith in
relation to the property.
e) That the decree is for a sum which the Judgment debtor was bound in a fiduciary capacity
to account.

SIMULTANEOUS EXECUTION

A court passing a decree against the defendant should not ordinarily place any limitation
as to mode in which it is to be executed.

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 Padruna Rajkrishna sugar works Ltd vs. land reforms commissioner.

Income tax due were sought to be realized as arrears of land revenue by selling
immovable property of the company..It was contended by the company that the collector at first
instance ought to have sold immovable. Negativating this the court held. The C.P.C imposes no
obligation to recover the dues by sale of immovable or by a arrest and detention of the defaulter
before immovable property may be attached.

Discretion of Cout. It is for Decree Holder to choose a particular mode of execution of

the decree, it is permissible in land to option for even a simultaneously execution. Court may in
its discretion refuse execution at the same time against the person and property of the Judgment
Debtor.

MODES OF EXECUTING THE DECREE

1. Delivery of property
2. Movable property – Section 51 (a) Rule 31
3. Immovable property ( Rule 35 – 36)

If decree is for specific immovable property it may be executed

1. By seizure and delivery of the property

2. by attachment and sale of the property
3. by detention of Judgment Debtor
4. By attachment & detention both

Where the property is in possession of 3rd party, the property cannot be attached.

Where the decree is for immovable property in possession of Judgment Debtor (or) in
possession of person bound by the decree it can be executed by removing the Judgment
Debtor or person bound by decree and by delivering possession there of Decree Holder

2. Attachment and sale of property ( Section 51 (b))

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 Court is competent to attach the property of it is situated within the local limits of
Jurisdiction of court. It is immaterial if place of business of Judgment Debtor is outside the
Jurisdiction of the court. Attachment of property is not a condition precedent.

Case Karnataka Bank Ltd Vs. K.Shammanna.

Sale of property without attachment is not void or without Jurisdiction and does not
intitate the sale. It is merely irregularity

Case Rahim Bux Haji & Sons Vs. Firm Simiullah & Sons
AIR 1963 A1 / 320

3. Arrest and detention – Section 51 (c )

Where the decree is for payment of money execution by detention in civil prison should
not be ordered unless after giving Judgment debtor a reasonable opportunity showing cause
why he should not be so detained by recording reasons. Arrest and detention may be ordered
when.

1. when Judgment debtor obstruct or delay execution

2. is likely to abscond
3. dishonesty transferred or concealed or remove the property or part there of or committed
‘act of bad faith in relation of property
4. Judgment Debtor refuses to pay (neglect to pay money / amount of decree
5. Decree for a sum which Judgment Debtor is bound to account for fiduciary capacity.
6. Provisions one mandatory in nature and must be strictly compiled with – they are not
punitive. The object of detention of Judgment Debtor is – it enables the Decree Holder to
realize limits of decree passed in his favour.
7. To protect Judgment debtor who is not in a position to pay the dues for reason beyond his
control or is unable to pay.

4. APPOINTMENT OF RECEIVER – Section 51 (d)

Appointment of receiver in execution is called Equitable execution – is entirely at

discretion of the court.

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 The Decree Holder cannot be permitted to pray for the appointment of receiver in respect
of property which has been expressely excluded from attachment by the statue

5. PARTITION – SECTION 54

Where a decree is for partition or separate possession of a state of an undivided estate

assessed to the payment of revenue to the Government execution should be effect by the
collector

6. CROSS – DECREES AND CROSS CLAIMS – RULES 18 – 20

Cross Decrees – Rule 18,20 Order21

Cross decree for the payment of money shall be set off against each other. If the amount
under two decrees are equal then both the decrees shall satisfy each other and full satisfaction
will be recorded and no payment is required to be made by any party and no execution will be
allowed to be taken out. If a amount are unequal then full satisfaction will be recorded upon the
decree for the smaller amount.

CONDITIONS

The court has power to allow set off it the following conditions satisfy

1. Decree must be for payment of different sum of money

2. They must have passed in different suits
3. The Decree Holder in one decree must be Judgment Debtor in another decree
4. Each party must fill the same character in both the suits

Illustration.

A and B co plaintiffs, obtain a decree for Rs. 1000/- against C and C obtains decrees for Rs.
1000/- against B. C’ cannot treat his decree as a cross decree.

5. Both the decrees must be capable of execution by the same court at sale time

Illustration.

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 A holds a decree against B for Rs. 1000/- B holds a decree against A for payment of Rs.
1,000/- in case . A fails to deliver certain goods at a future day. B’ cannot treat his decree as a
cross decree

6. Application should have been made to the court for execution of both the decrees

b) CROSS CLAIMS RULE 19 -20

Set off in case of cross claims in the same decrees – if two sums in cross claims under
same decree are equal, satisfaction of each shall be entered in the decree and no execution shall
be allowed to be taken out. If two sums are unequal the party entitled to longer sum may take out
execution of balance

 object is to prevent each side executing a decree in respect of sums due under the same
decree
 It applies to ordinary suits, mortgage suits and other suits not covered by C.P.C.

CONDITIONS

There should be two rival claims by the contesting parties against each other arising out
of one and the same decree sought to be executed by one against the other party.

CASE. MAHENDRA SINGH VS. DATARAM JAGNATH.

The material date for the satisfaction of the decree is the date of decree itself.

Case. Sripathi Achariyan Vs. Sankara Narayana Iyer

7.PAYMENT OF MONEY – RULE 2 & 30

A decree for payment of money may be excluded by attachment and sale of property of
the Judgment Debtor or by his detention in civil prison or by both. Decree for payment of money
can be executed by appointment of a receiver. Ratable distribution of assets is one of recognized
mode of execution of decree for payment of money.

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MODE OF PAYMENT

1. By deposing in the executing court

2. Out of court to the Decree Holder
3. As per direction of the court which passed the decree

PAYMENT IN COURT

Where the payment has to be made in court, if may be either by deposing the decreetal
amount in court or by postal money order or through bank. If the court closed on the last day for
making payment the maxim les non cogit act impossibilia (the law does not compel a man which
he cannot possibly perform) will apply and payment can be made on the day the court opens.

Case. Desh Bhandhu Gupta Vs. N.L. Anand.

PAYMENT OUT OF COURT

A payment out of court also discharge the decree such payment may be by postal orders
or through bank or by a any other made where is payment is evident in writing, when payment is
made out of court, following particulars must be accurately stated

1. The number of original suit

2. Name of the parties, when there of more than two plaintiffs or more than two defendants,
the name of two plaintiffs and two defendants.
3. How the money remitted is to be adjusted, i.e. whether it is towards the Principal interest
or costs.
4. The name and address of the payer.

The payment made in accordance with Order 21 Rule 1 discharge the Judgment Debtor from
decreetal dues

Where the Decree Holder refuses to accept the postal money order or payment through
bank interest shall cease to run from the date of such refusal

CERTIFICATE OF PAYMENT

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 No payment or adjustment can be recorded by the court at the instance of the
Judgment Debtor unless the payment is made in the court executing the decree or out of court
to the Decree Holder

C.P.C. prohibits the executing court from recognizing any payment or adjustment
which has not been certified or recorded. This rule is mandatory and prohibition is
absolute.

Case Law : Bhabani Darya Vs. Tusli Ram kent

8. SPECIFIC PERFORMANCE OF CONTRACT – RULE 32

A decree for specific performance of contract creates mutual rights and liabilities if
favour of the parties. Where the decree is for specific performance of contract and Judgment
Debtor will fully disobeys it, it must be executed by attachment of in property or by him
detention in civil prison or by but where decree does not specify the time, for performance, it
should be performed within reasonable time

Case Law : Hunger Ford Investment trust Ltd Vs. Hardhas Mundaa

Where in a decree of specific performance against corporation the decree may be

enforced by attachment of property of corporation, with leave of the ocurt, by detention in
civil prison of the directors or often principal officers there of.

9. INJUNCTION RULE 32

Where a decree is for injunction and Judgment Debtor disobeys it, it may be executed by
attachment of his property or his detention in civil prison or both.

10. RESTITUTION OF CONJUGAL RIGHTS – RULE 32 – 33

Where the decree is for restitution of conjugal rights and Judgment Debtor willfully
disobeys it – may be executed by attachment of his property – but cannot be sending the
person (Husband / wife) to Civil Person.

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 Refusal by wife to live in with her husband is unequivocal terms amounts to with
disobedience.

Case Law : Pedapudi Noo Karatnam Vs. Redapudi Venkata

Where a decree is passed against husband, the court either at the time of passing the
decree, or at any time thereafter may orders that in the event of decree being disobeyed
within the period fixed by court the Judgment Debtor shall make periodical payments to the
Decree Holder (wife)

11. EXECUTION OF DOCUMENT – RULE 34

Where a decree for the execution of a document and Judgment Debtor neglects or refuses
to obey, the court shall after giving an opportunity to the Decree Holder as well as the
Judgment Debtor to prepare the draft of document in accordance with terms of the decree
executed a document. It shall have the same effect as execution document by the party
ordered to execute the same. Document executed by court shall be treated as executed by the
party himself.

12. ENDORSEMENT OF NEGOTIABLE INSTRUMENTS

RULE 3 & 4

Where the decree is for endorsement of negotiable Instruments, Judgment debtor neglects
o refuses to obey the decree, the court after giving opportunity to Decree Holder as well as
Judgment Debtor to prepare draft of endorsement with terms of decree endorse negotiable
instrument
13. ATTACHMENT OF RENT, MENSE PROFIT – RULE 42

Where a decree is for un ascertained rent, mense profit or any other manner, the court
may attach the property of Judgment Debtor before the amount due from his as ascertained.

14. LIABILITY OF SURETY – SECTION 145

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 Where any person has furnished security or given a guarantee

a) for purpose of performance of any decree or any part there of

b) For restitution of property taken in execution of a decree
c) For the payment of any money or fulfillment of any condition imposed on any person,
under an order of court in any suit or in any proceedings consequent there on decree may
be executed
d) he himself rendered personally liable against him to that extent
e) If he has furnished any property as security by sale of such property to the extent of
security
f) Person furnished security or given a guarantee shall be deemed to be a party within the
meaning of Section 47. The liability of surety is joint and several. Notice to the surety is a
condition precedent to the validity of the proceedings against him. Attachment of
property without notice is illegal.

15. DECREE AGAISNT CORPORATION – RULE 32

Where the decree for specific performance of a contract or for injunction has been against
corporation and is with fully disobeys it, same may be executed by attachment of its property
or with leave of court by detention in civil prison of its directors.

16. DECREE AGAINST FIRM – RULE 49 – 50

Where a decree has been passed against firm it may executed against

a) any partnership property

b) any person who has appeared in his own name as a partner or admitted or held to be a
partner
c) any person who has been individually saved with a summons as a partner and has failed
to appear. If a Decree Holder wants to execute a decree against person other than (b) (c)
as partner in partnership firm the liability of such person may be determined by the court.
Property belonged to partnership firm can be attached and sold.

17. ATTACHMENT OF DECREE – RULE 53

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 Where the property to be attached is a decree, either for the payment of money or for sale
in enforcement of a mortgage or charge, the attachment can be effected either by the court which
passed the decree or by executing court by issuing notice to the court which passed the decree.
Other decrees can be executed by issuing notice to the decree Holder prohibiting from
transferring or changing the property to be attached and also to sending a notice to the executing
court to abstain from executing the decree until such notice is cancels

18.PAYMENT OF COINS OR CURRENCY NOTES –RULE 56

Where the property to be attached are coins or currency notes, the court may direct that
such coins or currency notes or part there of sufficient to satisfy the decree be paid to the D.Hr.

Zamindari Compensation bonds are not coins or currency notes

Case Law : Mahalingam Chettiar Vs. Ramanathan Chettiar.

ARREST AND DETENTION

Where the decree is for payment of money it can be executed by arrest and detention of
Judgment Debtor

Who cannot be arrest Section – 56, 58, 135, 135 –A

1. Woman
2. Judicial officers while going to presiding in or returning from their courts.
3. The parties, their pleaders, Mukthars, revenue agents, recognized agents, witnesses acting
in obedience to summons, while going to attending or returning from the court
4. Members of legislative bodies
5. any person or clause of person, whose arrest according state Government might be
attended with danger or inconvenience to the public
6. A Judgment Debtor where the decreetal amount does not exceed Rs.2000/-

PROCEDURE

The Judgment Debtor may arrested at any time and on any day in execution of decree.
After arrest he must brought before Court, for the purpose of arrest

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 1. No dwelling house may be entered after sun set and before sun rise.
2. No outer door of a dwelling house may be broken open unless such dwelling house is in
occupancy of Judgment Debtor and he refuses or prevent access there in
3. Where the room is in actual occupancy of Pardanasin women, who is not the Judgment
Debtor reasonable time and family should be given to her withdraw there from
4. No order of detention of the Judgment Debtor shall be made where the decreetal amount
does not exceed Rs.2000/-
5. No Judgment Debtor may be arrested unless and until the Decree Holder pays into court
the subsistence allowance as fixed by court. Where Judgment Debtor pays decreetal
amount he should at once be released.

NOTICE ORDER 21 RULES 37, 40

Before arrest and detention of Judgment Debtor issuing a notice calling upon the
Judgment debtor to appear and show cause why he should not be committed to civil prison in
execution of decree

 Issuing notice and affording opportunity to Judgment Debtor is show cause recognize a
rule of natural Justice that no person shall be condemned unheard
 If Judgment Debtor appears before Court, in obedience to notice and if the court is
satisfied that he is unable to pay the decreetal amount, court may reject application for
arrest. If the Judgment Debtor does not appear, issue warrant of arrest of Judgment
Debtor to make affidavit stating particulars of assets. The person disobeying the order
may be detained for 3 months.

POWER OF DUTY OF COURT

If Judgment Debtor has means to pay and still he refuses or neglect to Honour his
obligations he can be sent to jail mere omission to pay cannot result arrest and detention of
Judgment Debtor.

The court is required to record reason for its satisfaction for detention of Judgment
Debtor.

PERIOD OF DETENTION OF JDUGMENT DEBTOR SHALL BE

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 1. Up to 3 months where decreetal amount exceeds Rs.5000/-.
2. Up to 6 weeks where the decreetal amount exceeds Rs.2,000/- but does not exceed
Rs.5000/-

RELEASE OF JUDGMENT DEBTOR SECTION 58 – 59]

1. On the amount mentioned in the warrant being paid.

2. On the decree against him being otherwise fully satisfied
3. On request of Decree Holder
4. On omission of Decree Holder to pay subsistence allowance but such release does not
discharge the Judgment Debtor form his Debt, but he cannot re-arrested on the same
grounds.
5. On the grounds of illness.

ATTACHMENT OF PROPERTY

An executing court is competent to attach the property if it is situated within the local
limits of Jurisdiction of court.

PROPERTY WHICH CAN BE ATTACHED – SECTION 60

All saleable properties (immovable or movable) belonging to Judgment Debtor or over

which or portion of which he has a disposing power which he may exercise for his own benefit
may be attached and sold in execution of decree against him

PROPERTY WHICH CANNOT BE ATTACHED – SECTION 60 – 61

Section 60 (1) declares that certain property specified there are exempted from
attachment and sale in execution of the decree

Wearing apparels, cooking vessels, bedding, tools of a. . ., implements of husbandry, houses of

agriculturists, wages, salaries, persons and gratuity, compulsory deposits, right to future
maintenance etc.

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PRECEPT – SECTION 46

Means a command an order a writ or a warrant

 A precept in an order or direction given by the court which passed the decree to a could
which would be competent to execute the decree to attach any property belonging to
Judgment Debtor
 It provides that the court which passed a decree may upon the application by Decree
Holder issues a precept to that court within whose Jurisdiction the property of Judgment
Debtor is lying to attach any property specified in precept
 Attachment by precept is to enable the decree Holder to obtain an interim attachment of
property of Judgment Debtor situated within the Jurisdiction of another court, where it is
apprehended that the Decree Holder may otherwise deprived of the fruits of the decree

Case Law. Raikissanji Vs. srikissen

An order of precept is merely a step to facilitate execution and not an order transferring a
decree for execution.

Case Law : Champala Vs. Mohan lal

POWERS OF EXECUTING COURT

An executing court has got plenary powers to determine all question relating to execution
of decree only matters arising subsequent to the passing of the decree. It covers question arise
before or after the decree has been executed

Case Law : Merla Rammanna Vs. Nellapparaju

DUTIES OF EXECUTING COURT

 An Executing court cannot go behind the decree

 It has to execute the decree as it is. It cannot question correctness or otherwise of the
decree

Case Law : C.P.Angadi Vs. Y.D. Hirannayya

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 But where the terms of decree is vague or ambiguous it is the duty of executing court to
interpret the decree with a view to find out and ascertain the meaning of the terms used.

Case Law : V. Ramasamy Vs. Kailasa Devar

Where there is inherent lack of Jurisdiction on the part of the court passing the decree, the
executing court can refuse to execute the decree

Case Law: Kiran Singh Vs. Chaman Paswan

An executing court cannot go behind the decree – but an objection as to its validity can
be raised in execution proceedings if such objection appears on the fact of the record. If such
objections require examination or investigation of facts the executing court cannot entertain such
objections

Case Law : Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman

BAR OF SUIT – SECTION 10

Section 47 Bar a suit in respect of any objection in relation to execution proceedings. The
bar is, limited to question relating to execution, discharge satisfaction of the decree and not to
issues which are totally different.

APPEAL

Determination of question under Section 47 was deemed to be a decree with the meaning
of Section 2 (2) of C.P.C. and therefore subject to first appeal U/s. 96 and also second appeal
U/s.100. Now as per changed position of law – the determination of question U/s. 47 is no longer
deemed to be a decree with the meaning of Section 2(2) and therefore not appealable under
Section 96 and Section 100

Patna High Court – determination of questions U/s. 47 Shall be deemed to be decree has been
omitted still. If court satisfied the essential ingredients of Section 2(2) it would be amounted to
decree

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H/C of Allahabad, A.P, Bombay, Gauhati, Gurajat, Kerala, M.P., Madras, Orissa, patna, Punjab
& Rajastan – have take the view the after amendment Act 1976 an order passed U/s.47 would not
amount to a decree U/s. 2(2)

REVISION

After amendment Act 1976, an order under section 47 does not amount to decree, It is not
appealable U/s. 96 and 100. A Revision U/s. 115 of C.P.C is therefore maintenable provided the
conditions laid down U/s. 115 are satisfied.

NO WRIT PETITION however would be maintainable.

SALE OF PROPERTY GENERAL : RULES 64 – 73

ORDER 21 RULE 64

Power of Court – any court executing a decree may order that any property attached by it
and liable to sale, such portion thereof as may seem necessary to satisfy the decree shall be sold
and the proceeds of such sale or a sufficient portion thereof shall be paid to the party entitled
under the decree to receive the same.
PROCLAMATION OF SALE – RULE 66 -67.

After the property is attached and ordered to be sold by public auction – Court has to
cause a proclamation of the intended sale to be in the language of court such proclamation may
be drawn up after notice to Judgment Debtor and Decree Holder. The proclamation shall consists
of

a) Time and place of sale

b) Property or art thereof to be sold
c) Revenue if any assessed upon the property
d) Circumstances if any to which the property is liable
e) amount to be recovered
f) Such after particulars as the court considers material. It is the duty of court to ensure that
requirements of Rule 66 to be complied

OBJECT TO PROCLAMATION

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 1. To protect the interest of purchasers by giving them all material information of property.
2. To protect Judgment Debtor to facilitate fetch proper market prices. The sale conducted
without proclamation publication is not merely an irregularity but a nullity.

Case. A Venkatachalam Vs. E.M. Zakria

TIME OF SALE - RULE 68

 Unless the property ordered to be sold is punishable or keeping of which in custody is likely
to exceed its value
 no sale without consent in writing of Judgment Debtor can be conducted before 15 days in
course of immovable property
 before 7 days in case of movable property from the date of proclamation or in the court
House.

ADJOURNMENT OF SALE – RULE 69(1)(2)

Court at its discretion may adjourn any sale to any date and time, if sale is
adjourned more than 30 days fresh proclamation should issued unless the Judgment Debtor
waives it.

SHOPAGE OF SALE RULE – 69 (3)

Every sale shall be stopped if before the property is knocked down the debts and costs
one tendered to the office conducting the sale or paid into the court.

DEFAULT BY PURCHASER – RULE 71

Any deficiency of price on resale necessitated by the purchasers default shall be

recoverable from the defaulting purchaser. Therefore resale is not ordered because of default
of the auction purchaser will not apply

RESTRICTION TO BID RULE 72 – 73

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 1. A Decree Holder cannot without the permission of court purchase the property sold in
execution of his own decree.

Case Law : Manilal Mohanlal Vs. Sardas sayed Ahmed

If he does so with permission of court, he is entitled to set off, if he does so without

permissions of court, it has discretion to set aside the sale upon application by Judgment
Debtor or any other persons whose interest is affected by sale

NEGOTIABLE INSTRUMENTS AND SHARES – RULE 76

In case of negotiable instruments or a share in a corporation, court has power to order

sale through broken instead of by public. Auction on sale purchaser acquire title.

PAYMENT OF PRICES - RULE 77

The price of property shall be paid at the time of sale, on payment of price, sale
become absolute confirmation of sale is not necessary in case of sale of immovable property

Case Dharam Singh Vs. Ram Bejamal

IRREGULARITY IN SALE – RULE 78

Sale cannot be get aside on the ground of irregularity in publishing or conducting sale

Case Law : Dhirendranath Vs. Sudhit Chandra

Person sustaining injury by reason of irregularity may sue for compensation. Court has
power to set aside sale of movable property even when court has no jurisdiction to order the
sale. Court become functurs officio can retain Jurisdiction to recall orders, it order obtained
by practicing fraud.

Case Law : Baidyanath Dubey Vs. Deonandan Singh.

Effect of attachment in pursuance of precept is limited to 2 months. Unless the case is

covered by a order of permanent attachment is illegal

GARNISHEE ORDER – RULES 46 –A-46-I

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 Garnishee proceeding is a proceeding by which the Decree Holder seeks to reach money
or property of Judgment Debtor with the hands of 3rd parties (Debtor of J.D). An executing
court may order a 3rd party to pay tho the Judgment creditor i.e. Decree Holder the debt from
him to the Judgment Debtor.

The payment made by Garnishee pursuant to the order passed by executing court is a
valid discharge to him against the Decree Holder.

Garnishee means a Judgment Debtor’s Debtor. He is person liable to pay a debt to

Judgment Debtor or to deliver any movable property to him. Garnishee is a Judgment
Creditor (Decree Holder) who initiates Garnishee proceeding to reach Judgment Debtor’s
money or property held or possessed by 3rd party

Illustration

A owes Rs. 1,000/- to B, and B owes Rs.1,000/- to C. By a Garnishee order, the court
may require A not to pay money owed by him to B, but instead to pay to C since B owes the
said amount to C, who has obtained the order.

As per Section 46 –A is discretionary the court may refuse to pass such order if it is in
equitable.

If money is payable to the Judgment Debtor in certain contingencies the garnishee cannot
be asked to make payment unless such contingencies take place. Garnishee proceedings
cannot be taken in respect to debt which cannot be attached. As per Rule 46 –A, Notice to be
issued to a garnishee before garnishee order is passed against him. If no such notice is issued
and opportunity of hearing is not offered before passing order the order would be null and
void.

Case Law : Surinder Nath Vs. Union of India.

EFFECT OF PAYMENT

Payment made by Garnishee in pursuant of notice shall be treated a valid discharge

against Judgment Debtor – Court direct such payment may be paid to Decree Holder how
and satisfaction of the decree and cost of E.P.

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 FAILURE TO PAY

Where neither Garnishee makes payment into court, nor appeared and show cause in
answer to such notice, the court may order the Garnishee to comply with such notice, if it
were decree against him

 Cost of Garnishee proceedings are at discretion

 Order passed in garnishee proceedings are appealable as Decrees
 A wrongful Garnishment give rise action for damages

DETERMINATION OF ATTACHMENT – RULE 55 – 58

Attachment will be determined in following circumstances

1. Where decreetal amount paid or decree is otherwise satisfied

2. Where the decree is reversed or is set aside
3. Where the court upholds, objection against the attachment and makes an order releasing
the property
4. Where after attachment E.P. is dismissed
5. Where attaching creditor withdraws attachment
6. Where Decree Holder fails to do what he is bound to do under the decree passed
7. Where suit of plaintiff is dismissed
8. Where the attachment is ordered before Judgment and Defendant furnishes necessary
security.
9. Where there is agreement or compromise between parties
10. Where the attaching creditor abandons the attachment.
11.

SECTION – 64 – PRIVATE ALIENATION OF PROPERTY AFTER ATTACHMENT

Private alienation after attachment is void ab against claims enforceable under the
attachment. The alienation is not absolutely void against all the world, but is void against the

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 claims enforceable under the attachment private transfer means, sale mortgage, lease, gift and
not transfer by operation of Law.

SECTION – 47

Questions to be determined by executing Court.

 All the question arising between the parties to the suit in which decree was passed or
their representatives and relating to execution, discharge or satisfaction of the decree,
shall be determined by Court executing the decree and not be separate suit
 When the question is whether any person is or is not the representative of the party,
such question for the purpose be determined by the court.
 Object is to provide cheap and expedious remedy for determination of certain
questions in E.P. without recourse to a separate suit and to prevent heedless and
unnecessary litigation – must be constructed liberally

Case Harnandrai Bad ridas Vs. Debidutt Bhagavathi Prasad

RES JUDICATA

Deals with finality of a decision on matters actually constructively in issue before

it and it bars fresh suit of any kind question in subsequent proceedings. Whereas Section
47 deals with the enforcement of such decision and enacts that the question specified in
section shall be tried in execution and not be separate suit.

CONDITION

1. The question must be one arising between the parties to the suit in which decree is
passed or their representatives.
2. It must relate to execution, discharge or satisfaction of the decree.

PARTIES TO THE SUITS

Does not mean defacto parties on record or parties on opposite sides as plaintiffs and
defendants but means parties opposing each other.

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IN PARTITION SUITS

 Parties who are co- defendants are often arrayed against each other – therefore questions
between them relating to execution falls U/s.47
 Questions between parties who are not opposing each day or between party and a stranger
– not question U/s. 47
 Purchaser of property at sale in execution and decree through a stranger to the suit
deemed to be a party to the suit in which decree has been passed
 Legal representative in the sense, heirs, executors, or administrators as per Section 50 of
C.P.C. But representative interest in transferee of interest of Decree Holder or Judgment
Debtor who is bound by the decree.

EXECUTION DISCHARGE OR SATISFACTION :

Questions relating to

1. Whether the decree is executable?

2. Whether the property is liable to be sold in execution of decree passed?
3. Whether the decree is fully satisfied?
4. Whether the execution of the decree is postponed?
5. Whether an application to set aside sale is maintainable
6. Whether the same in execution is warranted by the terms of the decree?
7. Whether the particular property is or is not included in the decree?
8. Whether the party is or is not entitled to restitution of the property?
9. Whether the person is or is not a representative of the party ?
10. Whether the Decree Holder is in position to carry out his part of decree?
11. Whether the Decree Holder is entitled to mould relief in a accordance with the change of
circumstances?
12. Whether the decree has been adjusted outside the court?
13. Whether the decree is validly assigned?
14. Whether the auction purchaser is entitled to recover possession?
15. The question regarding identity of property?
16. Question regarding attachment, sale or deliver of property?

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 SALE OF IMMOVABLE PROPERTY – RULE 82 – 94

1.COURTS COMPETENT TO ORDER SALE – RULE 82

Any Courts other than court of small causes may order sale of immovable property in
execution of decree

2. POSTPONEMENT OF SALE – RULE 83

Court may post pone the sale to enable the Judgment Debtor to raise the decreetal amount
by private alienation, such as sale, mortgage, charge, lease postponement of sale is discretion of
court. Application for postponement of sale will not be allowed where Judgment Debtor had
sufficient time to pay the decreetal amount or where by private sale the decree will not be
satisfied in suit.

Case Law : Gumsami Vs. Venkata Sami

3. DEPOSIT AND PAYMENT OF PRICE RULE 84 – 87

After sale of immovable property person declared to be purchaser must deposit 25 % of

purchase money – provision regarding deposit is mandatory and no compliance with will make
the sale a nullity.

Case Law : Manilal Mohanlal Vs. Sardar Singh

Failure to deposit the amount – property will be forthwith be resold. Defaulting purchase
is liable for deficiency in price.

Nonpayment within 15 days at sale also mandatory and non compliance will initiate the sale

Bid by Co – Owner Rule – 88 Where property sold is share of undivided immovable property of
2 or more persons co – sharer has a right of pre – emption

SETTING ASIDE THE SALE RULE 89 – 92

Application shall be made within 60 days. The application to set aside sale cannot be
made on any ground. Not covered by Rule 91.

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ON DEPOSIT RULE 89

Setting aside of sale on deposit of amount of 5 % of purchaser price to the auction

purchaser.

On his depositing in court shows that deposit is a condition precedent to the making of
application to set aside a sale

Case. P.K. Unni Vs. Nirmala Industries

ORDER 21 RULE 89 Intended

1. To save Judgment Debtor from threatened deprivation of his property

2. To satisfy the claim of the Decree Holder
3. To compensate the auction purchaser

WHO MAY APPLY

Any claiming an interest as existing at the time of sale or at the time of making
application may avail the benefit of Rule 89.

They are

1. Judgment Debtor
2. Co Sharer in the property
3. Member of Joint Hindu family
4. Receiver
5. Creditor of Judgment Debtor
6. Beneficial owner
7. A lessee
8. Mortgagee
9. A person in possession of property
10. Benamidar, Transferee

CONDITION

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 1. Applicant must deposit in the Court for payment to the auction purchases 5 % of P.
money
2. Must deposit the money specified in Proclamation of sale less any amount received
by Decree Holder since the date proclamation of sale for payment of Decree Holder

LIMITATION

Application to setting aside sale is 60 days

NOTICE

Before an order to setting aside sale, notice of application must given to all persons likely
affected by order thereon.

APPEAL

An order setting aside the sale or refuse to set aside the sale under Rule 92 is appealable

IRREGULARITY OR FRAUD – RULE 90

A sale of immovable property can be set aside on the ground of irregularity or fraud in
publishing or conducting the sale provided applicant must rove the injury sustained there by

WHO MAY APPLY

1. Decree Holder
2. Auction purchaser
3. Person entitled to share in ratable distribution
4. Person whose interest affect by sale of Judgment Debtor, Real owner of property against
benamidar.

MATERIAL IRREGULARITY

Irregularity as a part of court or its officers in procedure to be followed before property is

put up for sale

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Material Irregularity are

1. Omission to issue Notice U/R 22.

2. Omission to publish sale proclamation U/r. 66
3. Omission to mention prior encumbrances in proclamation U/r 66
4. Omission to state the revenue or rent payable on the land
5. Omission to beat drum
6. Omission to give survey number of property
7. Omission to hold sale at stated time and place
8. Sale after an order to stay of execution
9. Sale after satisfaction of decree
10. Default in payment of deposit U/r. 84 or balance of purchaser price U/r.85

IRREGULARITIES NOT HELD AS MATERIAL IRREGULARITIES

1. Absence of or defect in attachment

2. omission to mentioned exact time of sale in sale proclamation
3. omission to record reasons for adjournment of sale
4. Omission to specify share or Judgment Debtor in property
5. Omission to give notice to a receiver when he is not in possession of property
6. Omission to send a copy of decree to the executing Court
7. Mis- description of property in sale proclamation when parties knew the property sold
8. Omission to mention value of property
9. Omission to issue a fresh proclamation after sale is adjourned
10. any other ground which the applicant would have taken on or before the sale
proclamation was drawn up

FRAUD

- Dishonest and morally wrong. Such fraud must be in publishing or conducting the sale
not necessary that auction purchaser should also be a party to fraud. Wherever a sale is
impeached on fraud, the ground of fraud, difference must be made between an innocent
purchaser and ..tainted by fraud.

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SUBSTANTIAL INJURY

A sale may not be set aside by mere irregularity or fraud in publishing or conducting
applicant must prove that he had sustained substantial injury by reason of such irregularity or
fraud.

Case Law : Laxmi Devi Vs. Mukand Kanwar

JUDGMENT DEBTOR HAVING NO SEALABLE INTEREST - RULE 91

Enables the auction purchaser to make application for setting aside the sale on the ground
that Judgment Debtor had no sealable interest in the Property. It is an exception to general rule of
Caveat emptor

EFFECT OF SETTING ASIDE SALE RULE 93

Where a sale of immovable property has been set aside, the purchaser is entitled to refund
of the purchase money paid by him with or without interest as ordered by Court. An application
can be filed within 3 years from the date of the order setting aside the sale.

CONFIRMATION OF SALE UNDER RULE 92

No sale of immovable property shall become absolute until it is confirmed by the Court.
Where no application to set aside the sale is made under Rule 89,90 or 91 or which such
application is made and disallowed by the Court the Court shall make an order confirming the
sale and there upon the sale become absolute

CERTIFICATE OF SALE RULE – 94

After the sale has become absolute, the court shall grant a certificate of sale in favour of
purchaser. It shall bear the date on which the sale become absolute and also specify the property
sold and the name of the purchaser – such certificate is conclusive proof in natures. Issuance of
certificate is merely a formal declaration by the court and neither extinguishes nor creates any
title

EFFECT OF SALE – SECTION – 65

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 After the sale becomes absolute, the property shall be deemd to have vested in the
purchaser from the date when it is sold and not from the date when the sale becomes absolute. In
other words, the purchaser’s title relate back to the date of the sale and not the confirmation of
sale

CASE LAW : JANAK RAJ VS. GURDIAL SINGH

TRANSFER OF CASES – SECTION 22 TO 25

Plaintiff as arbiter Litis or dominus litis has a right to choose his own forum where a suit
can be filed in more than one court. The right of plaintiff cannot be curtailed, controlled or
interfered with. The said right in controlled by the Court or superior to transfer a case pending in
one inferior court to another or to recall the case to itself for hearing and disposal.

Primary and paramount object is to facilitate Justice. A fair and impartial trial is a since
quanon and an essential requirement of dispensation of Justice.

SECTION -22 – Allows the defendant to make application for transfer of suit.

SECTION - 23 – Indicates the court to which such application can be made.

SECTION -24 – Embodies general power of transfer of any suit, appeal, or other proceedings at
any stage either on an application of any party or by court on its own motion.

 This power does not authorize High Court to transfer any suit, appeal or other
proceedings from a court subordinate to that High Court to a court no subordinate to that
High Court.

Section 25 confers wider power plenary and extensive power of Supreme Court to transfer any
suit, appeal or any other proceeding from one High Court to another High Court or from one
civil Court in one state to another Civil Court in another State.

WHO MAY APPLY – SECTION 22 – 23 DEALS WITH

 Right of defendant to apply for transfer of suit.

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  Where the plaintiff has choice of 2 or more courts in which he may institute the suit, a
defendant after notice to the othersie, may at earlier opportunity apply to a court to have
the suit transferred from the court in which it is filed to another Court.

Case Law :

1. Manokhar Chopra Vs. Seth Hairlal

2. Jagatguru Shri Sankaracharya Vs. RamjiTripathi

In other cases such application may be filed by any party to the suit, appeal or other
proceedings,

Case Law : Manjari Sen Vs. Ninupamsen

Before transfer is ordered under section 22 – two condition Must be satisfy

1. Application must be made at the earliest possible opportunity and in all cases, where
issues are settled, at or before settled of issues
2. Notice must be given to the other side.

To which court application lies

1. Where several court having Jurisdiction are subordinate to the same appellate court, any
application for transfer can be made to that appellate Court.
2. Where such courts are subordinate to the same High Court an application can be made to
that High Court.
3. Where such courts are subordinate to difference High Court’s an application can be made
to High Court with whose local limits of Jurisdiction, the court in which the suit is
instituted is situated. Case Durgesh Shanna Vs. Jayashree
4. The supreme Court may transfer any suit, appeal or other proceedings from one High
Court to another High Court or from one Court in the state to another civil Court in any
other state. Case Durgesh Shanna Vs. Jayashree

 Balance of convenience is the primary consideration for transfer of suit

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  It is neither the convenience of plaintiff along nor the convenience of defendant
alone but of both.

In determining convenience balance, for the trial of suit has to taken into consideration

1. The convenience and in convenient of plaintiff and the right of plaintiff to choose his
own forum
2. Convenience or inconvenience of the defendant
3. Convenience or inconvenience of the witnesses required for a proper trial of the suit
4. Convenience or inconvenience of a particular place of trial having regard to the
nature of evidence on the main points involved in the suit and also having regard to
doctrine of “Forum Convenience” and
5. Nature of issues in the suit

NOTICE

Notice of such application must be given by defendant to other side. After notice to the
other side parties – indicate that notice must be given prior to making of application – where
application made by party to the proceedings U/s. 24 – Notice must be given to the Court to the
opposite party before making an order of transfer.

Case Law : Krishna Mudaliar Vs. VSA Sadasiva Mudaliar.

High Court or a District Court has power to transfer suit, appeal or other proceedings
even suo moto

Case Laws :

1. Kulvinder Kour Vs. Kandi Friends Education Trust

2. AIR 1936 - Annamalai Chettiar Vs. Ramanathan Chettiar Mad High Court.

 An application for transfer can be made at any stage.

 However discretion of power of transfer of suit, appeal or other proceedings requires to
be exercised in the interest of Justice

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  The Court may refuse such prayer if it is made malafide or with a view to obviate an
adverse decision after the hearing is over.
 It is desirable to record the reasons for transfer.

High Court has power to transfer suit, appeal or other proceedings an administrative grounds
also.

Case Law : Rambit Yadav Vs State of Bihar

On Transfer of suit, appeal or other proceedings all an ancillary and incidental

proceedings which may white out of which would also be dealth with undecided by transferee
court.

 Where application for transfer is dismissed as frivolous, vexatious or malafide

 The Court has power to award substantial and exemplary costs to opposite party.

Case Law: Kaur Maheswari Prasad Vs. Bhariya Rudra Pratap

APPEAL

An order of transfer neither affect the merits of the controversy between the parties to the
suit, not terminates or disposes of the suit on any ground and therefore an order of transfer it not
appealable.

Case Law : Radhey Shyam Vs. Shyam Behari

An order of single Judge of High Court transferring a suit is not a Judgment within the
meaning of latters patent and therefore no letter patent appeal lies against such order.

Case Law : Asrumathi Debi Vs. Rubendra Jeb

REVISION

An order of transfer of suit, appeal or other proceedings can be said to be case decided
within the meaning of Section 115 of C.P.C. and Hence revision is permitted. Subject to
condition laid down and satisfied

TRANSFER ALLOWED { Illustrative cases (or) Grounds }

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 1. Reasonable apprehension in the mind of litigant that he might not get Justice in the court
in which suit is pending
2. To avoid multiplicity of proceedings or contradicting decisions
3. Where the Judge is interested in one party and prejudicial to other party
4. Where common question of law and fact arise between parties in two suit.
5. Where balance of convenience requires Eg. Where the property situates or parties resides
or A/c. books kept or witnesses resides.
6. Where two persons have filed suits against each other in different courts on the same
cause of action,.
7. When the transfer avoids delay and unnecessary expenses
8. Where important questions of law one involved or a considerable section of public is
interested in litigations.
9. Where transfer prevents abuse of process of courts.
10. Where transfer is necessary for only one adjudication of a particular controversy.

TRANSFER NOT ALLOWED

1. Mere fact that opposite party is a man of influence in locality

2. Court is situate at long distance from the resident of applicant
3. presiding officer belongs to a community rival to that of applicant.
4. Judge has decided similar point in previous case.
5. Mere balance of convenience to the applicant.
6. Refusal of grant adjournments.
7. Prejudice of the Judge against party’s pleader not likely to affect party
8. Judge makes adverse remarks regarding merits of the case
9. Allegations of apprehension against fair trial without furnishing particulars.
10. On Counsel losing temper and using unparliamentary language the Judge ordering
adjournment.

RESTITUTION – SECTION 144

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 Means restoring of anything unjustly taken from another. It provides for putting a party
in possession of land, tenement or property, who had been unlawfully dispossessed, deprived or
dismissed of it.

It otherwise means: Restoring to a party the benefit which the other party has received
under a decree subsequently held to be wrong.

Case. Mahijibhai Motiabhai Barot Vs. Patel Manibhai Gokulbhai

Section – 144

Does not confer any new substantive rights. It merely regulates the power of the court in
that behalf. It is the burdened duty of court if person harmed by mistake of court, he should be
restores to the position he would have occupied but for that mistake. The Jurisdiction to make
restitution is inherent n every court and can be exercise whenever Justice demands. The doctrine
of restitution is based upon the well known Maix “ achus Curiae Neminem Gravabit” i.e. the act
of court shall harm no one. It is based on equitable principles.

Case Law : Jai Berhams Vs. Kedarnath Marwari

Privy council held It is duty of Court U/s. 144 to place the parties in the position which
they would have occupied but for such decree or such part there of as has been varied or
reversed.

CONDITION

Before restitution is ordered the following three conditions must be satisfied

1. The restitution sough must be in respect of the decree or order which had been revered or
varied
2. The party applying for restitution must be entitled to benefit under the reversing decree or
order.
3. The relief claimed must be property consequential on the reversal or variation of the
decree or order

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WHO MAY APPLY

In order to entitle a person to apply U/s.144, two conditions must be satisfied

1. He must be a party to the decree or order varied or reversed.

2. He must have become entitled to any benefit by way of restitution or otherwise under the
reversing decree or order

Tresspasser cannot get restitution

AGAINST WHOM RESTITUTION MAY BE GRANTED

Restitution can be order U/s. 144 not only against the party to the litigation, but also
against his legal representative eg. Transferee pendent lite, attaching

1. decree holder etc. sec. also apply to parties and their

2. legal representative and does not apply to sureties. Hence restitution cannot be claimed
against a surety.
3. It is also cannot be granted against Bonafide Purchaser.

Case Laws :

1. Parameswari Din Vs. Ram Charan

2. Raj Raghubar Singh Vs. Jai Indra Bahadur
3. Janak Raj Vs. Gurdial Singh

 An application for restitution lies to the court which has passed decree or made the order
 As per Supreme Court decision held in Mahijibhai Motiabhai Barot Vs. Patel Manibhai
Gokulbhai
 The proceedings for restitution are proceedings in execution

Inherent Power to grant restitution’s Section 144 of C.P.C.

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 Embodying the restitution does not confer any new substantive right to the party not
available under the general law. It merely regulates power of court. It is based on equity and
against unjust enrichment.

Case Law : Union Carbine corporation Vs. union of India.

The doctrine of Res Judicata applies to execution proceedings also. An application for
restitution dismissed on merits, would operate as Res Judicata. But is dismissed on some
technical grounds a fresh application will be maintainable.

Case. MagboobAlam Vs. Khondaija

 Where restitution could be claimed U/s. 144, no separate suit shall be brought for such
relief
 Application U/s. 144 is an application for execution of decree and is governed by Article
136 of Limitation Act.
 The period of limitation is 12 years and with start from the date of the appellate decree or
order
 The determination of a question U/s. 144 has been expressly declared to be decree U/s 2
(2) of C.P.C. Therefore appealable. Second Appeal also lies on a substantial question of
law.

Case Law: Rabimbhoy Habbi hoy Vs. C.A. Turner

REVISION.

ORDER U/.s 144 is a decree, it is appealable and no revision lies against such order. But
where the order does not fall under Section Revision is maintainable as it can be said to be “ a
Case decided “ U/s. 115 C.P.C.

CAVEAT – SECTION 148 –A

 The word caveat has been derived from Latin which means beware
 According to dictionary meaning: a Caveat is an entry made in the books of the offices of
a registry or court to prevent a certain step being taken without previous notice to the
person entering the caveat. In other words, a caveat is a caution or warning given by a
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 party tot eh court not to take any action or grant any relief to the applicant without notice
or intimation being given to the party lodging the caveat and interested in appearing and
objecting to such relief. It is very common in testamentary proceedings.
 Person filing or lodging caveat is called Caveator

SECTION 148-A.

1. Where an application is expected to be made or has been made, in a suit or proceeding

instituted or about to be instituted in a court, any person claiming a right to appear before
the Court on the hearing of such application may lodge caveat in respect thereof.
2. Where a caveat has been lodged, the person by whom the caveat lodged ( Caveator )
Shall a notice of the caveat by registered post, acknowledgement due on the person by
whom the application has been or is expected to be made U/s.
3. Where after caveat has been loaded any application is filed in any suit or proceedings, the
court shall serve a notice of the application on the Caveator
4. Where a notice of any caveat has been served on the applicant, he shall forth with furnish
the Caveator, at the Caveator expense, with a copy of the application made by him, and
also with copies of any paper or document which has been or may be field by him in
support of the application.
5. Where a caveat has been lodged, such caveat shall not remain in force after the expiry of
90 days from the date on which it was lodged unless the application has been made
before the expiry of said period.
6. A Caveat can be lodged in a suit or proceedings as per decision in Ramchandra Aggarwal
Vs. State of U.P. as Per section 141 of C.P.C. includes all proceedings which are not
original proceedings. Provisions relating to caveat would be applicable suits, appeals as
well as other proceedings.

WHO MAY LODGE CAVEAT

He must be a person claiming a right to appear before the court on the hearing of the
application, which the applicant right more for grant of interim relief person who is a stranger to
proceeding cannot lodge a caveat.

Case Law : Chloride India Vs. Ganesh Das

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 Person supporting the application for interim relief made by the applicant also cannot file
caveat

Case Law Nirmal Chandru Vs. Girindra Narayanan

 Caveat can be filed after pronouncement of Judgment. In exceptional cases, caveat may
be filed even before pronouncement of Judgment or passing of order

Case Law: Pasupathi Nath Vs. Registrar Co –Operative Society.

A Caveat may be filed in the form of a petition where in caveator has to specify nature of
the application which is expected to be made or has been made, and also his right to appear
before the Court at the hearing applicability. The stamp reporter or registry of Court will keep a
register where in entries will be made of filing a caveat.

NOTICE

The applicant who has been served with a caveat to furnish the Caveator, at the caveators
expenses, a copy of application along with copies of papers and documents submitted by him in
support of his application.

RIGHTS AND DUTIES OF CAVEATOR

Once a party admitted to the status of Caveator he is closed with certain rights and duties
it is his duty to serve a notice of Caveator lodged by him by registered post on the person or
persons by whom an application against the Caveator for intention order has been is expected to
be made.

A Caveat lodged will remain in force for 90 days from the date of it is filing.

INHERENT POWER OF COURTS – SECTION 148 TO 153 – B

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 Inherent means natural, existing and inseparable from something, a permanent attribute
or quality, an essential element, something intrinsic or essential vested in attachment to a person
(or) office as a right of privilege

SECTION - 148 – ENLARGEMENT OF TIME

Where any period is fixed or granted by the court for the doing of any act, the court has
power to enlarge the said period even if the original period fixed has expired.

Case. Mahant Ram Das Vs Gangada

It is a discretionary power and hence court has to take account of conduct of the party
praying for extension.

BEFORE EXTENTION OF TIME -Two condition must be fulfilled

1. A period must have been fixed or granted by court.

2. Such period must be for during an act prescribed or allowed by the code.

This section has no application where court does not fix time

PAYMENT OF COURT FEES – SECTION 149

Empowers the court to allow a party to make up the deficiency of court fees payable on a
plaint, memorandum of appeal, even after the expiry of period for limitation prescribed for
filing of such suit appeal etc. If the proper court fee is not paid at the time of filing of
memorandum of appeal, the deficit court fee is paid within the time fixed by the court, it
cannot be treated as time barred,

TRANSFER OF BUSINESS – SECTION 150

Where the business of any court is transferred to any other court, the transferee court will
exercise same powers and discharge same duties confessed or imposed by the court upon the
transfer court.

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ENDS OF JUSTICE – SECTION 151

 Court can recall its own orders and correct mistakes can set aside an exparte orders
passed against parties can issue temporary injunctions in cases not covered by provision
of Order 39.
 can add, delicate or transpose any party to a suit
 can set aside illegal orders of orders passed without Jurisdiction
 can revive the execution applications
 can take notice of subsequent events
 can hold trial in camera or prohibit excessive publication of its proceedings
 can allow amendments of pleadings can correct errors and mistakes
 can expunge remarks made against a Judge
 can extent payment of court fee
 can extend time to pay arrears of rent
 can restore the suit and rehear it on merits
 can review its orders

ABUSE OF PROCESS OF COURT – SECTION 151

Inherent power U/s. 151 can also be exercised to prevent the abuse of the powers of a
court. Such abuse may be committed by court or party to litigation may also be guilty of an
abuse of process of the court. Eg. obtaining benefit by practicing fraud on the court or upon a
party to proceedings by resorting to or encouraging multiplicity of proceedings or by instituting
vexatious, obstructive or dilatory tactics or by introducing scandalous or objectionable matter in
proceedings or by trying to secure an under advantage over the opposite party.

AMENDMENT OF JUDGEMENT ORDERS, DECREES AND OTHER RECORDS –

SECTION 152,153,153-A

SECTION – 152

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 Clerical or arithmetical mistakes in Judgments, decrees or orders arising from any
accidental slip or omission may at any time be corrected by the court either of its own motion
(Suo Moto) or on application of any of parties.

BASED AS PRINCIPLES OF

1. Act of court should not prejudice any party

2. duty of Court to fee that their records are time and they represent correct state of affairs.

Illustration.

1. A files a suit against B for Rs.10000/- in court X. The court passes a decree for Rs.
1,000/- as prayed. The decree can be amended.
2. A files a suit against B for Rs.10,000/- and interest in Court x. The Court passed the
decree for Rs.5,000/- and nothing more. A applies to amend the decree by adding a
prayer for payment of interest, The decree cannot be amended,. If aggrieved by the
decree. A may file appeal or application for review

SECTION 153 –A :Where the appellate court dismisses an appeal summarily under ORDER 41
RULE 11, the power of amendment U/s. 152 can be exercised by the Court.

FIRST INSTANCE

SECTION 152 – is confined to amendments of Judgments, orders or decrees ORDERS 6 RULE

17 deals with amendment of pleadings Section 153 however confers a general power on the court
to demand defects or errors in any proceedings in a suit and make an necessary amendments for
the purpose of determining the real question at issue between the parties to the suit or other
proceedings.

Case Laws :

1. Jai Jai Ram Manokhar Vs. National Building material supply

2. Ramkarandas Vs. Bhagwandas

LIMITATION

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  These inherent power can be exercised ex debito Justitiae only in absence of express
provisions of code. They cannot be exercised in conflict with what had been expressly
provided in the code (or) against intention of legislators. Inherent powers are to be
exercised by the Court in very exceptional circumstance. Thus in exercise of inherent
powers – a court cannot interest itself with Jurisdiction not vested in it by law.

 Grant an order of stay circumventing the provisions section 10 of C.P.C. (or) allow set off
in execution proceedings at the instance of auction purchaser ignoring provisions of
Order 21 Rule 84 or remand a case ignoring provision of Order 41 Rule 23 & 25 to
reopen the question which had already been heard and finally decided by it and which are
consequently barred by ignoring principles of Res Judicata – or appointment of
commissioner keeping aside the provision of Section 75 – review the orders and
Judgments in the absence of statutory provisions.

 Direct and arbitrator to make a fresh award o set aside exparte decree ignoring provisions of
Order 9 Rule 9 (or ) Order 9 Rule 13 or override substantive rights of any party or restrain
any party from taking proceedings in court of law or implead legal representatives on record
after the suit is abated or make and order restraining execution of a dcree against the surety
or to set aside an order which was right when it was made.

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 LIMITATION ACT, 1963

1. PERIOD OF LIMITATION

Under law of limitation Act 1963, period of limitation means the period of limitation
prescribed for any suit, appeal or application by the schedule and prescribed period means the
period of limitation computer in accordance with the provisions of the act.

SECTION 3 OF ACT 1963 – BAR OF LIMITATION

Every suit instituted, appeal preferred an application made after the prescribed period
shall be dismissed although limitation has not been set up as a defence

A SUIT IS INSTITUTED

In an ordinary case, when plaint is presented to proper office

 In case of pauper – when his application for leave to sue as a pauper is made
 In case of claim against company which is being would be the court when claim first
send to his claim to the official liquidator
 Any claim by way of set off, on the same date as the suit in which the set off is
pleaded.
 In case of counter claim, on the date on which the counter claim is made in the court
 An application by notice of motion in the High Court is made when the application is
presented to the proper officer to that court.

SECTION – 4 EXPIRY OF PRESCRIBED PERIOD WHEN THE COURT IS CLOSED.

Where the prescribed period of any suit, appeal or application expires on a diary when the
court is closed, the suit, appeal or application be instituted prefer or made on the date when the
court reopens.

SECTION -5 – EXTENSION OF PERIOD OF LIMITATION.

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 Any appeal or application other than application Under Order 21 of C.P.C. 1908 may be
admitted after the prescribed period, if the appellant satisfies the court that he had sufficient
cause for no preferred the appeal or making the application within such period. It does not apply
to suits.

CASE LAW : Ashok K. Khunana Vs. Steel man Industries.

Sufficient cause for condonation of delay should be liberally considers so as to advance

substantial Justice.

SECTION 6 LEGAL DISABILITY

1. Where a person entitled to file a suit or make an application for the execution of decree at
the time from which the prescribed period is to be reckoned, a minor or insane or he may
institute the suit or make application within the same period after the disability has
ceased.
2. Where such person is at the time from which prescribed period is to be reckoned affected
2 such disabilities or where before his disability has ceased, he is affected by another
disability he may institute the suit or make application within the same period after both
disabilities have ceased as would another wise have been allowed.
3. Where disability continues up to death of that person, his legal representative may
institute the suit.
4. Where legal representative is at the date of death of person whom he present affect such
disability.
5. Where a person under disability dies after the disability ceases bar within the period
allowed to him, his legal representative may institute the suit or make the application
within the same period after the death, as would otherwise have been available to that
person had he not died.

SECTION – 7 - DISABILITY TO THAT PERSON HAD HE NOT DIED.

 Where one of several persons jointly entitled to institute suit or make application for
the execution of a decree is under such disability time will run against the mall. But
where no such discharge is given time will not run against any of them until one of

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 them becomes capable of giving such discharge without concurrence of the others or
until the disability was ceased.
 Applies to discharged from every kind of liability includes the liability in respect of
immovable property.
 Manager of Hindu Undivided Family Governed by Mitakshana Law shall be capable
of giving the discharge without concurrence of after members of family only if the is
in management of family property.

SPECIAL EXCETIONS

Section 6 and 7 does not apply to suits to enforce rights of pre-emption or shall be extend
to more than 3 years from the cessation of the disability or the death of the person affected there
by.

SECTION – 9 – CONTINOUS RUNNING OF TIME

 Where once time has began to run no subsequent disability of inability to instate the
suit or make application stops it.
 Provided letter of administration to the estate of the creditor have been granted to him
debtor, the running of period of limitation for a suit to recovers the debt shall be
suspended while the administration continues
 Once time for filing starts running it will continue to run till it has exhausted the full
period
 Period of limitation for short supply of goods in 3 years under Article 10 – date of
delivery should be taken as starting point.
 Period of 2 months notice U/s. 80 cannot be added to after 3 years as period of notice
runs concurrently with general period of limitation

Case Law : National Coal Development Corporation Ltd. Vs Union of India

SECTION 10

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  No suit against person in whom property is vested in trust for any specific purpose or
against legal representative or assigns for the purpose of following his hands such
property or proceeds there of or for account of property or proceeds shall be barred by
any length of time.
 Any property comprised in a Hindu, Muslim or Buddhist religious or charitable
endowment shall be deemed to be the property.

SECTION – 11

 Suit Instituted in the territories of state of Jammu & Kashmir or foreign country shall
be subject to Limitation Act.
 No rule of limitation in force in Jammu & Kashmir or Foreign country shall be a
defence to the suit instituted in the foreign country on a contracted entered.

SECTION – 12 – EXCLUSION OF TIME IN LEGAL PROCEEDINGS.

 In computing period of limitation for any suit or appeal or application – the day from
which the period reckoned shall be excluded
 For appeal or application for leave to appeal for review of Judgment Or
 Revision the day on which the Judgment complained of was pronounced and time
requisite for obtaining a copy of decree, sentence or appeal order or review or
revision shall be excluded.
 Where decree orders is appealed from or sough to be reviewed or revised or where an
application is made for leave to appeal from decree or order- time requisite for copy
of decree or order or Judgment be excluded.
 In computation period for application for setting aside the award, time requisite for
obtaining copy of award shall be excluded.

SECTION – 14 – Exclusion of time for proceeding bonafide in the court without

Jurisdiction.

 For any suit the time during which the plaintiff has been prosecuting with due
diligence another civil proceedings whether in a court for first instance or of appeal or
revision against same party for the same relief shall be excluded.

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  Not applicable to fresh instituted suit on permission granted by the Court.

SECTION - 15

Exclusion of time in cases where leave to sue or appeal as a pauper is applied for is made
and rejected – time which the applicant has been prosecuting in good faith shall be excluded.

EXCLUSION OF TIME IN COMPUTING PERIOD OF LIMITATION

1. The day on which the period of limitation reckoned.

2. The day of which the Judgment / decree / order is pronounced.
3. The time spent in obtaining copy of decree / Judgment / Order.
4. The time spent in prosecuting any application to sue as an indigent person.
5. The time spent in proceedings taken bonafide in court having no Jurisdiction.
6. The time during stay or injunction operated.
7. Time spent in giving notice or for obtaining consent / sanction required by Law.
8. Time during which there was receiver of liquidator
9. Time during which proceedings to set aside sale was pending in suit for possession.
10. Time during which the defendant had been out of India.

POSTPONEMENT OF LIMITATION

For application of law of limitation, there must be a completed cause of action.

FOLLOWING CASES, PERIOD OF LIMITATION WILL NOT START RUNNING.

1. The period of limitation will not start running till there is a person who can sue or be
sued.

2. In case of fraud or mistake – till such fraud or mistake is discovered.

3. In case of right or liability – fresh period of limitation will not start running from the
state of acknowledgement in writing of such right or liability by the party – Section 18.

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 4. In case of debt, payment will provide fresh period of limitation from the time of such
payment.

5. Where after the instituting suit, new plaintiff / defendant is added / substituted, the suit
shall be deemed to be instituted against him, when he was made a party. But of such
omission is bonafide on any earlier date.

6. In case of continuing breach of contract or tort, fresh period of limitation begins to run
every moment till breach or tort continues

7. In a suit for compensation for an act not actionable without special damage, the period of
limitation will be computed from the time the injury results.

SECTION – 27

Limitation bars the remedy but does not destroy the right, the right remains subsisting
through without remedy.

SECTION – 18

 Where the acknowledge in writing in respect of any property or right has been in
writing signed by party against whom property or right is claimed.

 by any person through whom he derives title or liability limitation start when
acknowledgement was signed.

 Writing containing acknowledgement is undated, oral, evidence be given of the time

when It was signed but subject to provision of Indian Evidence Act. Oral evidence of
its contents shall not be received.

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 SOLVED PROBLEMS

1. A suit was filed by B against T for recovery of money on the date of hearing of the case, both
the parties to the dispute failed to appear before the court. The court dismissed the suit. What are
all the remedies available.

ORDER 9 RULE 3

Where neither parties appear, where neither the plaintiff nor defendant appears when the
suit is called out for hearing, the court may dismiss it. The dismissal however does not bar a
fresh suit in respect of same cause of action.

IN THE GIVEN PROBLEM

Suit filed by B against T on date of hearing, both of them failed to appear before the
court. Suit is dismissed. Remedy for which is plaintiff i.e. B may apply for an order to set aside
such dismissal and if the court is satisfied that there was sufficient cause for his no appearance
shall pass an order setting aside the dismissal of the suit and fix the date of proceeding with the
suit also. “B” has to file a fresh suit in respect of same cause of action.

2. The suit filed by B, the request of defendant S for adjournment is rejected by the court and the
suit is heard exparte. Exparte decree was passed. Advice defendant “B”.

ANSWER

The defendant against whom an exparte decree has passed has following remedies
available to him

1. to apply to the court by which exparte decree is passed – to set aside ORDER 9 RULE
13
2. to prefer an appeal against such decree Under Section 96 (2) or to file revision Under
Section 113 where no appeal lies
3. to apply for review Order 47 Rule 1

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 4. To file a suit on ground of fraud.

IN THE GIVEN PROBLEM

Adjournment is rejected and heard exparte and exparte decree is passed. Absence of
defendant after prayer for adjournment is re-sued is not ground i.e. is not a sufficient cause as per
section and hence the defendant cannot file application to set aside the decree passed exparte. In
these circumstances, the defendant has to file or prefer appeal, because application to set aside
exparte decree is not maintainable as it was based on adjournment.

3. R is the Judgment Debtor. His property is situated with the Jurisdiction of another Court.
There is an apprehension that the decree Holder S may be deprived of his decree if immediate
steps are not taken. Point out House the decree Holder S shall proceed in such case.

ANSWER

“S” the decree Holder may invoke the provisions of Section 46 – i.e. attachment of
precept. Precept is an order given by the court which passed the decree to a court which could be
competent to execute the decree to attach the property belonging to Judgment Debtor. As the
property is situated within the Jurisdiction of another Court, S has to file application before the
court which passed the Decree in his favour (being D.Hr.) seeking issuance of precept to that
Court within whose Jurisdiction the property of Judgment Debtor is situated. To attach the
property specified in Precept. An order or precept is a step taken to facilitate execution and not
an order transferring a decree for execution.

Hence S has to attach the property of Judgment Debtor “R” by obtaining precept from the
court as the property of R is lying in the Jurisdiction of another Court.

4. A residing in Coimbatore scolds “B” in Tanjore. B wants to file a suit for defamation against
A Advise.

ANSWER

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AS PER SECTION 9 OF C.P.C.

A suit for defamation shall lie before the competent court. The relief asked far in such
suit is damages as the defamation comes under Civil wrongs that too is a civil nature. The said
suit may be filed in Coimbatore where the plaintiff A resides or at Tanjore where cause of action
occurs.

Hence B has to file suit for defamation seeking damages as relief sought for and that
should be filed either in Coimbatore or in Tanjore. Both places are having Jurisdiction to
entertain such suit.

5. X has been prosecuted in a Criminal Court for the offence of Kidnapping and he was
acquitted, after his acquittal he filed a suit against the father of minor girl in a civil court for
recovery of his expenses incurred to defend his criminal court case. Whether the suit is
maintainable ?

The suit is not maintainable. A civil Court has Jurisdiction to try all suits of a civil nature
unless the cognizance of which is barred either expressly or impliedly. Here by application
settled provision of law that suits impliedly barred by Law. That where a specific remedy is
given by the statue, if there by deprived the person who insists upon a remedy of any offence
forum than that given by the statute.

Thus no suit shall lie for recovery of costs and expenses in a criminal prosecution or for
enforcement of rights of upon a contract hit by Section 23 of Indian contract Act 1872. Certain
suit are though civil nature, are barred from cognizance ground of public policy.

This is not maintainable.

Case : Indian Airlines Corporation Vs. Sukhdeo rai

6. X Sues Y on promissory note for Rs. 60,000/-. Y already holds a Judgment against X for
70,000/-. A plea of set off is raised by Y. Can be succeed on his plea. Give reasons.

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 Y Can succeed in his plea. The plea of set off is very well maintainable. The reason is
that A plea of set off is a plea whereby a defendant acknowledges the Jurisdiction of the
plaintiffs demand, but sets up another demand of is own, to counter balance that of the plaintiff
either in whole or in part. Thus it is a reciprocal acquittal of debts between two persons. Here the
two claims both definite, pecuniary demands may be set off.

CASE LAWS

1. Jayanthillal Vs. Abdul Aziz.

2. Seshaiah Vs. B. Veera Bhadrayya.

7. A suit was filed by B against S for Rs. 75,000/- and interest in sale Court. The court passed a
decree for Rs. 65,000/- and notify more. B filed application to amend the decree by adding
prayer for payment of interest. Can the court amend the decree ? Explain

Amendment of Judgments, decree, orders and order records, Section 152,153,153 –A

comes under interest power of the court.

Section 152 says, but clerical or arithmetical Mistakes in Judgments, decree or orders
arising from any accidental slip or omission may at any time be corrected by the Court either of
its own motion or on the application of any of the parties.

The Decree cannot be amended. Under the Section. The A if aggrieved by the decree,
may file an appeal or application for review.

CASE: Master construction Co (p) Ltd. Vs. State of Orissa.

8. A suit for partition was filed by the son against for her relating to ancestral property. During
pendency of suit, father alienated same properties, Discuss the effect of alienation and power of
court in the partition Decree.

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 The alienation by the father during the pendency of the legal proceedings before the
Court i.e. Pendente lit, the subject matter of the suit being ancestral properties meant for partition
sought by son against father.

The alienation made by father during pendency of suit for partition is declared to be null
and void and would not bind the parties to the proceedings. The purchaser though being proper
party for the purpose of fair, final and complete disposal of the suit. Effectively the purchaser
would be added as parties to the proceedings. The provision of Rule 10 (2) order 1 r/w Section
151 invoked is to bring all the persons who are – Judicial discretion of the court which has to be
exercised keeping in mind all the facts and circumstances of the court. Because he subject matter
of litigation is a declaration as regards status or legal character. Hence, it is the foremost duly of
the court to adds the purchaser as party to the suit and to advice at effective and conclusive
adjudication by passing decree.

CASE : Razia Begum Vs. Anvar Begam.

9. In a suit filed by R against S the court by involving Section 151 C.P.C. appointed a
commissioner to seize some account books of R, on the basis of the application filed by S.
Decide the validity. of order passed by the court.

The application filed by S is guilty of above of process of Court. Where a court employs
a procedure in doing something union it never intended to do and there is miscarriage of Justice
thus arose abuse of process by the court itself.

Case. Naresh shridhar Vs. State of Maharastra

Further appointment of the commissioner by the court is only upon application made by
the party to the proceedings under Order 26 and section 75 to 78 or Suo Motto by the Court. The
courts, power to appoint commission are exhaustive and hence the court cannot exercise inherent
power Under section 151 for the purpose.

Case: Padam Sen Vs. State of U.P.

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 Order 26 Rule 10 –A, 29 of C.P.C. Hence the order passed by court upon an application
filed Under section 151 is not valid and is liable to be quashed. It is nullity and enforceable as
per Law.

10. A Money decree was passed against the firm in a suit in which the partners were not served
individually with summons and the decree holder intended to execute the decree against the
personal property. Advise the decree Holders Order 30 Rule 3 explains service of summons upon
the firm and its partners. Order 30 Rule 6 – 8.

When a summons is issued to a firm Under Rule 3, every person served shall be informed by
notice whether he is served as a partner or as a person having control or management of the
Partnership business or in both capacity. In absence of such notice of the person shall be deemed
to be served as a partner.

ORDER 21 RULE 49 AND 50

Provides for execution of decree against a partnership firm and for attachment of
partnership property.

Case: Topan mal Vs. Kun Domal.

Non issuance of summons to partners comes under Section -47 that the executing court
must determine all the questions arising between parties to the suit within the decree was passed
relating to execution. The defect is material irregularity. Hence the attachment of individual
property of partner in absence of service of summons is not valid and is absolutely void and not
maintainable and appealable.

11. A borrowed a sum of Rs.50,000/- on promissory note from B. The promissory note was
executed on 21.04.2011. B died on 18.08.2011 leaving behind his son “C” aged 15 years. Now
“C” wants to file a case against A. Can C recover the amount from A? Advice?

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Pronote date : 21.04.2011

B died on 18.08.2011. On 18.08.2011 C is aged 15 years. As per law minor is a person

who has not attained the age of 18 years.

As per Order 32 Rule 1-2-A every suit by a minor should be instituted in his name
through his guardian or next friend. If it is not done the plaint will be taken off the file where
such minors is a plaintiff the court may at any stage of the suit order his Guardian or next friend
either on the application of defendant or Suo Moto for reasons to be recorded to furnish security
for costs of the defendant.

So the minor “C” has to file a case through his guardian mother if alive or through
guardian from the date of cause of action i.e. execution of pronote.

The Cause of action arose on 21.04.2011

“C” attains majority on 18.08.2014. The period of limitation ends with 21.04.2014. On
that case “C” still minor not attaining majority.

Hence “C” can file a suit only through next friend / Guardian. But not in his own name.
On attaining majority by C on 18.08.2014 the suit barred by Limitation.

12. X filed a suit against Y on promissory note as an indigent person. The suit was dismissed by
the Court. What is the remedy available to X and the Government against the dismiss

ORDER 33 RULE 1 - SUIT BY INDIGENT PERSON.

A person is an indigent

1. He is not possessed of sufficient means to enable him to pay the fee prescribed by law for
the plaint in such suit.
2. Where no such fee is prescribed, when he is no entitled the property Worth Rs.1000/-.

Rule 1- A

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 an enquiry into the means of the plaint should be made the chief ministerial officer of the
Court. The court may adopt the report submitted by such officer or may itself make an inquiry.

Court then issue notice to the opposite party and Government pleader and fix a day for
giving evidence as the applicant may adduce in proof of his indigence or in disproof thereof by
the opposite party or by the Government Pleader.

In the given problem, the court dismissed the petition against which X has right to file
appeal. As per Rule 14 or 33, order rejecting a dismissing the application to sue as an indigent
person is appealable.

So also Government pleader the state government has right to recover Court fee. For that
purpose it is deemed to be a party to the suit. The court shall order him to pay court fees and
costs.

13. “A” lets a house to B at an annual rent of Rs. 6000/-. The rent for the whole of the year 2010,
2011 and 2012 is dull and unpaid. A sues B in 2013 only for the rent due for 2012. Can be file
another suit against B for the rent due for 2010 and 2011

SPLITTING OF CLAIM : ORDER 2 RULE 2

Every suit shall as far as practicable be framed as to afford ground for final decision upon
the subject in dispute and to prevent further litigation concerning them. All the matters in dispute
between the parties relating to the same transaction should be disposed of in the same suit. When
there is a common question of law and facts, separate suitor neither necessary nor desirable.

Every suit shall include the whole of the claim which the plaintiff is entitled to make in
respect of the cause of action, but a plaintiff may relinquish any portion of his claim. Where the
plaintiffs omits to sue in respect of or intentionally requisites any portion of his claim, he shall
not afterwards sue in respect of the portion. So omitted or relinquished.

In this problem : Rent for the years 2010, 2011 and 2012 is due and unpaid. A sues B in 2013
only for rent due for 2012 only.

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 Thus as per settled provisions of law as enunciated in Order 2 Rule 2. A cannot file
another suit against B for the rent due for 2010 and 2011

Case : State of Maharastra Vs. National Construction Co. Ltd. SCC 735 1996

14. Durai, a jiggery merchant of Tuticorin sold and delivered the Jaggery to henry at
Thirunelveli. The merchant Henry at Thirunelveli fails to pay the Money. Durai wants to title a
suit against Henry. Advise.

SECTION 15
General rule is that every suit shall be instituted in the court of the lowest grade
competent to try it.

As per Section : 20 :Cases not covered under Section 16 – 18, Section 19 may be filed at the
plaintiffs opinion in any of the following courts.
1. Where the cause of action wholly or partly arises (or)
2. Where the defendant residing, carries on business or personally works for gain (or)
3. Where there are 2 or more defendants, any of them resides or carries on business or
personally works for gain, provided that in such case
(a) either the leave of the court is obtained.
(b) the defendant who do not reside or carry on business or personally works for gain
at that place acquires in such Institution.
IN THE GIVEN PROBLEM
Jaggery sold and delivered at Thirunelveli and Henry fails to pay money at Thirunelveli
whereas Durai resides at Tuticorin.

The Cause of action arises at Thirunelveli – where the goods sold and delivered and also
not made payment. So the Durai may file suit against Henry at Tirunvelveli.

Tirunelveli is the place where cause of action wholly arises and also if is the place where
henry reside. Therefore court at Thiruvelveli is the place which got Jurisdiction to entertain the
suit.

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14. A executed a General power of Attorney in favour of B to look after his properties in India.
A died in Australia without executing any document relating to his properties in India. X and y
approached B against each other, claiming absolute right over the property of A – Decide.

Interpleader Suits ( Section 88 – Order 35 )

Interpleader means to litigate with each other to settle a point concerning third party.
Where a person is under liability in respect of a debt or in respect of any money, goods or
chattels and he is expects to be, sued for (or ) in respect of that debt or money (or) those goods or
chattels by 2 or more persons making adverse claims thereto, he may apply to the court for relief
of by way of interpleader. In interpleader suit, the real dispute is not between plaintiff and
defendants, but between defendants who interplead against other.
In this problem
“B” who is the power Agent of A has nothing to do with the properties of “A in India. He
has a right to file interpleader suit and get it decided who is the rightful claimant. X or y in
respect of properties of “A” in India.
Hence “B” has to file interpleader suit in a competent court in India where the
properties are situated.

15. X files a suit for partition against his son. Y and daughter Z. X died during the pendency of
the suit. State Whether X’s wife is entitled proceed with suit.

ORDER 22 RULE 1 – 6
Where sole plaintiff filed, the suit will not abate, if the right to sue survives. It can be
continued by the heirs and legal representative of the deceased plaintiff. It the right to sue does
not survive, the suit will come to end.

IN THE GIVEN PROBLEM

X filed suit for partition during pendency X died. X is the plaintiff, Y and Z are
defendants. On X’s death hi legal heir of 1st class being wife, son and daughter. Here son and

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daughter are defendants and against present suit is filed. Hence wife is the heir to the deceased.
X who died during pendency of suit. Where plaintiff died, court will make entry to that effect
and proceed with the suit as Surviving plaintiff as the right to sue survives on her.
Hence X’s wife be added as party to the proceeding. She may be added as plaintiff in the
suit by making necessary Applications under Order 22 Rule 1 to 6. The application to add X’s
wife as plaintiff in the suit must be filed within 30 days and proceed with the suit.

16. Somus is a business man in Chennai. Balu is a Business man in Delhi. Balu by his agent in
Kerla by goods of Somu and requests him to deliver them through railways. Somu acts
accordingly. Subsequently Balu refuses to pay the amount. Now somu wants to file a suit against
Balu. Advice Somu regarding the Place of suing.

SECTION 20 : Suits may be filed at the plaintiff option in any of following places of court.
1. Where the cause of action wholly or partly arises.
2. Where the defendant resides (or) carries on business of personally words for given

HERE IN THE GIVEN PROBLEM

Somu resides in Chennai. Balu resides in Dellhi. Where Balu’s agent buy the goods and
goods were delivered to him by Somu. On refusal to pay the amount Somu may sue Balu for the
price of goods either in kerala where the cause of action has arisen, where Balu carries on
Business.

17. B Published defamatory statement against A. Hence file a suit against B claiming damages.
Later B died leaving his son C as his legal heir. Whether the suit will continue against C.

ORDER 22 RULE 1 TO 6 AND 10 –A

Where the sole defendant dies, the suit shall not abate, if the right to sue survives, it can
be continued against the heirs and legal representatives of deceased defendant. On application by
the deceased defendant will make him a party and proceed with the suit. Right to sue survives if
the cause of action survives. The general rule is that all the rights of actions and all demands
what so eve existing in favour of or against a person at the time of his death, survive to or against

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his representatives. But in cases of personal action i.e. action where the relief sought is personal
to the deceased or the rights intimately connected with the individuality of the deceased the right
to sue will not survive to or against the legal representatives.

action personalis moritur cum persona ( Personal action dies with Person) – Applies.
Thus the right to sue does not survives in cases of suit for damages for defamation.
Therefore in this problem
On the death of “B”, the suit will not continue against “C” the son of B.

18. In a suit for recovery of money filed by Y against 2 for Rs. 7,000/-, a counter claim is
claimed by 2 that Y is also liable to pay him Rs. 20,000/- Decide

ORDER 8 RULE 6 – A, 6 –G – COUNTER CLAIM

Counter claim means identified as – a claim made by the defendant in a suit against the
plaintiff. It is the claim independent of and separable from the plaintiffs claim which can be
enforced by a cross action. It is a cause of action in favour of defendant against the plaintiff right
to make counter claim statutory, court has to treat counter claim as a cross suit and hear the
original suit and counter claim together if counter claim is properly stamped.

CONDITIONS
Modes of / setting up counter claim by
1. In the written statement field Under Order 8 Rule 1
2. By amending written statement leave of the court and setting up counter claim.
3. In a subsequent pleading under Order 8 Rule 9 Counter claim by defendant against a
plaintiff in respect of cause of action accruing before after filing of suit .
4. Provided such claim is not barred by limitation.
5. Defendant will have right to get a decree for counter claim. The counter claim will be
treated as Plaint, reply to counter, claim by plaintiff shall be treated as written statement

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 6. Where defendant demands in a plaintiffs suit an amount below or up to the suit claim, it
is set off strict sensu. But when is for a larger amount the claim for larger amount is
really counter claim.

HERE IS THE PROBLEM

The amount claimed less than the suit claim of Rs. 70,000/- where as counter claim by Z
is only Rs. 20,000/- . As such it can be set off in the suit. Counter claim not necessarily invoked
by the court. The “Z” can set off his claim against suit amount of Rs.70,000/- and thereby the
court can continue the proceedings for the remaining balance only.

19. Raju obtains a decree against Baskar. In execution or that decree certain property is attached.
Selvam files a objection to the attachment on the ground that he and not Baskar is the counter of
the property. However the objection of Selvam is dismissed. Advise Selvam as to what relief he
is entitled.

As Per SECTION – 42 of C.P.C.

Confers upon the court executing a decree sent to it the same powers as if it had passed
by itself, court executing the decree to ensure that defendant gives the plaintiff the very thing the
decree directs and nothing more or nothing less. The executing court cannot convert itself into
the court passing the decree.

Case : Jain Narain Vs. Kedarnath.

A Court executing the decree cannot go behind the decree. It must take the decree as it
stands and execute it. It has not power to question its legality or correctness.

In this given problem : as per Rule 55 – 58 Order 21

Where the Court upholds the objection against the Judgment and makes an order to
releasing the property. Normally it is a question to be decided by executing Court.

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SECTION -47
All question relating to execution, discharge or satisfaction of the decree shall be
determined by the court executing the decree and not by a separate suit. However questions
arising between the parties who are not opposed to each other, or between a party and a stranger
do not fall within Section 47. During execution proceedings, a question arises as to whether any
person is or is not the representative of the party must determined by executing Court. Objection
to validity of decree, can be raised in execution proceedings if such objection appeals on the face
of record. If such objection requires examination or investigation of facts, the executing court –
cannot entertain such objection.

Case. Vasudev Dhanjibhai Modi Vs. Rajashai Abdul Rehman.

20. A filed a suit against B in foreign court. The suit is dismissed. Again he filed a fresh suit on
the same cause of action against B in India. Whether the fresh suit is maintainable.

SECTION 13 AND 14
Enacts a rule of Res Judicata in case of foreign Judgment. It embodied the principle of
private international law that a Judgment delivered by a Foreign court of competent. Jurisdiction
can be enforced by Indian Court and will operate as Res Judicata between the parties there to.
The principal that where a court or competent Jurisdiction has adjudicated the claim, a legal
obligation arises to satisfy that claim. The rules of private international law of each state must in
the very name of things differ, but by comity of nations certain rules are recognized as common
to civilized Jurisdiction. We are sovereign without territory but it is no derogation of sovereignty
to take account of foreign Law.

IN THE GIVEN PROBLEM

Suit filed by A against B is dismissed in foreign Court. The Judgment of foreign Court
operates as a bar to a fresh suit by A against B in India on th same cause of action. So a fresh suit
filed by A against B as the same cause of action in which is not maintainable. On the footing

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that, foreign Judgment shall be conclusive as to any matter thereby directly adjudicated upon
between the same parties or parties under whom they or any of them claim litigating under same
title,.

21. A claims Rs. 10,000/- as due from X (or) Y. The court held that X is liable to pay Rs. 5,000/-
and Y is liable to pay Rs. 5,000/- to X. X appeals but Y does not. Whether Appellate court can
discharge X making Y liable for the whole amount.

As per SECTION 96(4) and as per Amendment of Year 1976 Sub Section (4) bar appeal on fact
from decree passed in petty suits, where the amount or value of subject matter of the original suit
does not exceed Rs. 10,000/- of courts of small causes. An appeal is a continuation of the suit.
Mere filing of appeal would not sufficient to come to conclusion or for adjudication of dispute in
all respects. An appeal cannot be admitted aprtly. The decree passed by trial Court one Joint
decree / single decree. As per Section 96 an appeal lies from Original decree. So also appeal lies
against Order U/s.104 r/w Order 43 Rule 1. However the findings recorded by the court may or
may, not amount to decree or order. No appeal lies against such findings. In this given problem
X appeals, whereas Y does not appellate court has duly bounded to hear the appeal and arrived
its decision only on merits, mere non –filing of appeal by one party does not by itself amounts to
admissibility of verdict given by lower Court. However X’s appeal in respect of part of decree
i.e. against Rs. 5,000/- only. The appellate court has to decide that extent only. But at the same
time, passed an order discharge X and making Y liable for the whole amount would bad in Law.
The order passed by Appellate court is not maintainable. It is erroneous and in executable one.
Hence the appellate Court cannot discharge X making Y liable not full amount.

22. A belonging to Salem married B at Palani and they lived together at Palani. B never lived
with his husband A at his native place Salem. Since B deserted husband. He filed petition for
restitution of Conjugal rights at Salem Court. Whether the petition is maintainable.

Jurisdiction as to subject matter. Suit for divorce cases cannot be entertained by civil
Court as per Section 20. Petition for restitution of conjugal rights shall be filed by Family Court
having competent Jurisdiction. Jurisdiction has to be fixed.

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 1. Where cause of action wholly or part arises.
2. Where the defendant resides or carries on business or personally works forgein.

HERE IN THIS PROBLEM

A married B at Palani and lived together at Palani. As per settled provisions of law that,
the place where the parties lastly lived together is the optional place to file application for case of
matrimonial proceedings.
As such Palani is the place where “B” deserted his husband. i.e. the cause of action
namely the desertion takes place at Palani. Though Salem is the native place of A, A and B lives
lastly together only at Palani and desertion occurs only at Palani. Hence the petition fore
restoration of conjugal rights ought to have been filed in Salem Court. Lacks Jurisdiction or is
not a competent Court.
Therefore petition filed before Salem Court is not maintainable. The court may Suo moto
transfer the petition to Palani Court or any application by “b”. Any order passed by Salem Court
may lacks Jurisdiction and Voidable.

23. A sold his good through his agent and the agent kept the sale proceeds in his hands. B
obtained decree against A and attaches the sale proceeds in the hands of his agent. Whether the
attachment is valid.

AS PER ORDER 21 RULE 10

The attachment may be taken out against Judgment Debtor or Legal representatives of
Judgment Debtor or Representative of the person claiming under Judgment Debtor.
Here the agent is the representative of “A”. B obtained decree against “A” and
attachment of sale proceeds in the hands of agent of A is maintainable. As the agent s deemed to
be the Judgment Debtor. Judgment Debtor “A” he is in the position of Garnishee. Hence the
attachment of sale proceeds belonged to “A: and where in the hands of agent are liable to be
attached. nothing is barred for attachment of such sale proceeds in execution of decree obtained
by “B” against “A”
Hence the attachment is valid provided, the executing court cannot go behind the decree.
As the was obtained only against “A” the properties in the Hands of “A” along be liable for

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attachment, but not in the hands of his agent. hence to add the agent in the decree by amendment
and then brought attachment of those sale proceeds. Then only the attachment is valid one
otherwise in valid.

24. X resided at Mumbai. Y resided at Rajasthan and Z at Bihar. While X,Y and Z together at
Bangalore Y and Z made joint promissory note payable on demand and delivered it to X. X
wants to file a suit against Y and Z advise.

SECTION 20
Suits may be filed at the plaintiffs option in any of the following court.
1. Where cause of action wholly or partly arises.
2. Where the defendant resides, or carries on business or personally works for gain (or)
3. Where are two or more defendants, any of them resides or carries on business or
personally works for gain, provided that in such case
(a) either the leave of the court is obtained.
(b) The defendant who do not reside or carry on business or personally works for gain
at the place acquires in such institution.
(c)
IN THIS PROBLEM
X, Y and Z together at Bangalore, where joint promissory note executed by Y and Z in
favour of X and delivered to X. So the cause of action for the suit arose at Bangalore. Rajasthan
where Y resides at Bihar where Z resides. There X may sue Y and Z at Bangalore where cause of
action arose. X also sue them at Rajasthan where Y resides at Bihar where Z resides. But in each
of these cases if the nonresident defendant objects, the suit cannot proceed without leave of the
court.

25. R filed suit against S for Rs. 1,00,000/-. The court passed a decree for Rs. 10,000/-. R. filed
an application to amend the decree. Discuss.
SECTION 152

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 That critical or arithmetical mistakes in judgments, decrees or orders arising from an
accidental slip or omission may at any time be correct by the court either of its motion (Suo
Moto) or on application of any of the parties.
1. an act of court should no prejudiciary party
2. It is the duty of court to see that their records are true and they represent the correct state
of affairs.
3. Every Court has inherent powers over its own records so long as those records are within
its power and that if can set right any mistake in them. An order even passed and entered
may be amended by the Court. So as to carry out its intention and express the meaning of
the court when the order was made. It can be done at any time.

In this given Problem

R filed suit against S for Rs. 1,00,000/- in Court. Decree was passed for Rs. 10,000/-.
Hence by invoking Provisions of Section 152 R may file application to amend the decree.
SECTION 153 however confers a general power on the court to amend defects or errors in any
proceeding in a court and to make all necessary amendments for the purpose of determining the
real question between the parties to the suit or other proceedings.

Case. Samatendra Nath Vs. Krishna Kumar

26. A sued B in a court at Sivagangai on a Mortgage of 2 properties of which one situated at

Sivagangai and the other at Madurai. State whether the court at Sivagangai had Jurisdiction to
order for the sale of property in Mumber in execution of its decree

Suit filed at Sivagangai – two property of which one at Sivagangai another at Madurai.
Sivagangai court passed a decree before which execution petition was filed for sale or property at
Madurai.

SECTION 51(B)
Empowers the court to order execution of a decree by attachment and sale or by sale
without attachment of any property. The court is competent to attach the property if it is situated

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within the local limits of its Jurisdiction. It is immaterial that the place of business of the
Judgment Debtor is outside the Jurisdiction of the court.

SECTION 51 Says
Attachment of property is not a condition precedent sale od property without attachment
is not void or without Jurisdiction and does not initiate such sale. It is merely an irregularity.
By applying the provision of Section 46 the court at Sivagangai can order Sale of
property at Madurai in execution of the decree by way of precept. Precept is an order or direction
given by the court which passed the decree to a court which would be competent to execute the
decree to attach and sale the property belonging to Judgment Debtor.

SECTION 46 – Provides the court which passed the decree may upon an application by Decree
Holder issue a precept to that court within whose Jurisdiction the property of Judgment Debtor is
lying any property specified in the precept.

Hence the Sivangangai Court had Jurisdiction to order for sale of property at Madurai in
execution of its Decree.

SECTION 39 OF C.P.C
Rule 82 to 94 Order 21 deals with sale of immovable property in execution of decree
should be ordinarily be held at some place within the Jurisdiction of the court ordering such sale.

27. Rajan sued Raghu and obtained a decree against him. Rajan applied for execution of his
decree against Raghu. But Rajan died during pendency of execution proceedings. State whether
execution petition will Continue or abate ?

As per ORDER 21 RULE 10

The decree shall be executed by filing necessary application.
Rajan is the decree Holder who obtains a valid Decree against Raghu. Hence he filed n
execution petition against Raghu. During pendency Rajan, the Decree Holder died. As per settled
proposition of law.

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The following persons may file execution petition
1. Decree Holder
2. Legal representatives of decree Holder, if the decree Holder is dead.

Decree Holder is dead.

A decree which is otherwise valid and executable does not become in excusable on the
death of the Decree Holder or of the Judgment Debtor and can be executed against his legal
representatives. As such on death of Rajan, his legal heir can steps into shoes of the Rajan by
applying rules of Subrogation and Shall continue the Execution.

Case. Parhati Debi Vs. Mahadeo Prasad 1979 4 SCC 761

Uthirapathi Vs. Ashrab Al (1998 ) 2 SCC 727

28. A suit for possession was filed by Z in the Munsif Court which had no Jurisdiction. The
initial defect in the presentation was cured by the district Judge by transferring it to the Sub
Court. Examine the Validity of Order ?

SECTION 22 TO 25 C.P.C
Enacts the law as regards transfer and withdrawal of suits, appeal and other proceedings
from one court to another.

SECTION 24 TO 25
Empower certain courts to transfer any suit, appeal or other proceedings either on an
application made by any party or by the Court Suo Moto

Case . Durgesh Sharma Vs. Jayashree

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 By Exercise the inherent power the High Court or District court has power to transfer a
suit, appeal or other proceedings eve Su Moto.
It is desirable to record reasons in support of an order of transfer. In Manjari sen Vs.
Virupam sen the requirement if prior notice cannot be regarded as mandatory unless it has
caused prejudice to the other side. However requirement of giving notice must be held to be
mandatory without notice is held to be bad in law being violative of principles of Narrow Justice
and fair play. But where a court transfers a case Suo Moto – non issuance of notice will not make
the order Non est.
Bajnathprasad Vs. Pasrad …Prasath

Here in this problem, the District Judge transferring it to Subordinate Court from District
Munsif Court on the ground that Munsif court had no Jurisdiction on of a Civil Court, the
averments made in the plaint are material. The Jurisdiction of the court should normally be
decided on the basis of the case put forwar4d by the plaintiff. Hence the order passed by the
District Judge is valid.

29. A claiming to be an indigent person filed pauper suit against B. In order to meet out his
essential family requirements, he sold all his property 2 years before filing the pauper suit and
became pauper. Whether “A” is entitled to file pauper suit?

Suit by Indigent Persons - order 33

ORDER 33 RULE 5
As per law, a person is indigent if he is not possessed of sufficient means to enable him to
pay the fee prescribed by law for the plaint.
In such suit
Where no such fee is prescribed, when he is not entitled to property worth Rs. 1,000/-
The application should be presented by the applicant to the court in person. Unless
exempted by Court.
The court will reject the application for permission to sue as an indigent person on the
ground that

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  Where the applicant has within two months before presentation of the application
disposed of any property fraudulently or in order to get permission to sue as an
indigent person.
Here in this problem
The claimant / petitioner “A” has sold all his property before two years before
presentation of plaint for meeting out his family essential requirements. Hence as per the settled
preposition of law, if any alienation or transfer or convey or property shall be effected within 2
months prior to the date of presentation is the ground to reject the application to sue as pauper.
But here in – the sale of property was much before 2 years and now be became pauper. Hence
there is no bar to A to tile pauper Suit.

30. A filed a suit against B for possession of math property as a Legal heir Mohunt The suit is
dismissed subsequently he filed another suit against B as manager of Math for possession of
Math’s property. Whether the suit is barred by Res Judicata ?
The 3rd condition of Res Judicata is that the parties to the subsequent suit must have
litigated under the same title as in the former suit. i.e. Title refers to capacity or interest of the
parties.

i.e. Whether he sues or issues for himself in his own interest or for himself as
representing the interest of another or as representing the interest of others along with himself
and it has nothing to do with particular cause of action on which he sues or is sued.

LITIGATIN UDDER THE SAME TITLE

Means that the demand should be of the same quality in the second suit as was in the first
suit.

IN THE GIVEN PROBLEM

A sues possession of Math property as an heir of Mahant. Suit dismissed . A subsequent
suit by A against B as the manager of the Math is not barred. The second suit filed in the
capacity of manager is not barred by Res Judicata.

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31. A suit was filed by Sampath against Ravi for the recovery of money. On the date of hearing
of the case, both the parties to the case failed to appear before the Court. The court dsmised the
suit. Now Sampath wants to file an application to set aside the dismissal order. Advice him

ORDER 9 RULE 1 AND 12

Rule 1 requires the parties tot eh suit to attend the court in person or by their pleaders on
the day fixed in the summons for the defendant to appear. Rule 12 provides that where the
plaintiff or defendant who has been ordered to appear in person, not appear in person or show
sufficient cause for non appearance, the court may dismiss the suit, if he is the plaintiff or
proceed exparte if he is defendant.

WHERE NEITHER PARTY APPEARS : RULE 3

Where neither the plaintiff nor the defendant appears when the suit is called out for
hearing, the court may dismiss it. The dismissal of suit however does not bar a fresh suit in
respect of the same cause of action. The plaintiff may also apply for an order to set aside such
dismissal and if the court is satisfied that there was sufficient cause for his non-appearance, it
shall pass an order.
Setting aside the dismissal of the suit and shall fix a day for proceeding with the suit.

In this given problem : Sampath may file an application to set aside the order of dismissal
UNDER ORDER 9 RULE 9 na if the court is satisfied that there was sufficient cause for his non
appearance the court may set aside the order of dismissal and fix a day for proceeding with the
suit.

If sufficient cause is shown by the plaintiff for his non-appearance, re opening is mandatory, but
when sufficient is not shown it is directly.

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Here in this Problem : Samath entitled to have right to file an application under Order 9 Rule 9 to
set aside.

32.Summons were issued by the court to David to appear before the Court for the purpose of
giving evidence in a case. A request was made to the court on behalf of David stating that he is
occupying high position in the society, so a commissioner may be appointed to examine him.
Will it be entertained by the Court give Reason.

COMMISSIONS – ORDER 26 -

ISSUE OF COMMISSION – SECTION 75

The power of Court to issue commission is discretionary and can be exercised by the
court for doing full and complete Justice between the parties. It can be exercised by the Court
either on an application by a party to the suit or of its own motion ( Sue Moto)

Case Bandhu Mukti morcha Vs, Union of India

As a general rule, evidence of witness in an action whether he is party to suit or not

should be taken in open court and tested by cross examination. In ability to attend, the court on
the grounds of sickness or infirmity or detriment to the public interest may justify issue of
commission to examine witnesses

UNDER SECTION 76- 78 ORDER 26 RULE 1 – 8

The appoint of commission to examine the witness on the grounds that
1. The person sought to be examined resides beyond the local limits of Jurisdiction of
Court.
2. On any other grounds which court thinks fit / sufficient
3. Witness being Paramhansa
4. Party apprehends danger to his life if he appears before Court.

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 But power to appoint commission to examine witnesses – should not be exercised on the
ground that the witness is a man rank or having social staus and it will be derogatory for him
to appear in person in court.

Case.
A Marcalline Fenando Vs. St. Francis Xavier.

In this problem – request was made on behalf of David, who served summon to give
evidence before he Court stating that he is occur paying high position in the society. It is not
a an acceptable ground to issue commission for examination of him. Hence the request made
is not maintainable and liable to be dismissed.

33. A residing in Chennai beats B in Madurai. B sues A in Chennai for compensation.

Examine Jurisdiction of the Court in Chennai ?

A suit for compensation for wrong (tort ) to a person may be instituted at the
option of the plaintiff either where such wrong is committed or where the defendant resides,
carries on business or personally words for gain.

Here in this Problem

A resides in Chennai “B” at Madurai, Beats “B” also at Madurai. Therefore Madurai is
the place where cause of action arose and is the place where defendant resides and carries on
business or personally words for gain. Madurai is the place where cause of action took place.
Chennai is the place where defendant A resides. Therefore the court in Chennai has got
Jurisdiction to entertain the case.

34. Ravi sues Raju on a Promissory note for Rs. 50,000/- Raju already holds a Judgment
against Ravi for Rs. 60,000/-. A plea of set off is raised by Raju can he succeeded in his plea.
Give reasons.
SET OFF - ORDER 8 RULE 6

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 Set off means a claim set up against another. Counter-claim means a claim made by the
defendant in a suit agiasnt plaintiff. One of the plea open to defendant to defeat the relief sought
by the plaintiff against him in counter claim

UNDER ORDER 8 RULES 6 (A) 6 (G)

Plea of set off is a plea where by a defendant acknowledges the Justice of the plaintiff
demand. But set up another demand of is own to counter balance that of the plaintiffs. It is
reciprocal acquittal to debts between two persons.

IN THIS PROBLEM
The claims made by Ravi and Raju being both definite, pecuniary demands. Hence may
set off.

35. Sita sues Radha for possession of certain lands alleged to have come to her share in a
partition of Joint family property with Radha. The defence is that the family property has not yet
been divided and the suit by Sita against Radha for partition of family property is therefore
dismissed. Subsequently Sita sues Radha’s for partition of family property. Is it maintainable.
Res- Means subject matter or dispute.

Judicata means – adjudged, decided

Res Judicata – matter adjudicated

The doctrine of Res-Judicata is based on

1. No man should be vexed twice for same cause.

2. It is in the interest of state, that there should be an and to a litigation
3. A judicial decision must be accepted as correct.

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In the given Problem
A subsequent suit by Sita against Radha for partition of Joint family property is not
barred.
As the object of Res Judiciata is to promote honesty and fair administration of Justice and
prevent abuse of process of laws.

Page 223 of 223

 III YEAR OF 3 YEAR LL.B
SEMESTER - V
ODD SEMESTER

Page 1 of 199
SUBJECT : CRIMINAL PROCEDURE CODE
SUBJECT CODE : TA5B

Page 2 of 199
 SYLLABUS
TA5B – CRIMINAL PROCEDURE CODE
Unit - I
Important definitions under the Code of Criminal Procedure, 1973 (Act 2 of 1974).
Constitution of Criminal Courts and Officers - Court of Session - Assistant Sessions Judges - Judicial
Magistrates & Executive Magistrates - Public Prosecutors - Assistant Public Prosecutors. Powers of
Police Officers - Aid and information by Public.
Arrests of persons without warrant by Magistrate - by private persons - search - pursuit of offenders -
seizure of offensive weapons - Medical examination of arrested persons - Procedure to be followed
on arrest.

Unit - II Pre - trial Processes :

Processes to compel appearance summons -service of summons -warrant of arrest - Search
warrant - proclamation and attachment-bond for appearance - impounding documents - process to
compel the production of things.

Unit - III
Information to the police and their powers to investigate - procedure on investigation - and
recording of statements - recording of confession and statement - powers of Police officers on
investigation - inquiry by Magistrate into cause of death.
Unit - IV
Jurisdiction of the criminal courts in inquiries and trials - conditions requisite for initiation of
proceedings - cognizance of offences by Courts of Sessions - Prosecution in special cases.
Complaints - Procedure on receipt of complaints.

Unit - V
The charge form and contents of charge - effects of errors - joinder of charges.

Unit - VI Trial Procedure :

Trial before a court of session- framing of charge - discharge - acquittal - judgement of
acquittal or conviction - trial of warrant cases by Magistrates - Upon Police Report or otherwise
Procedure-Trial of summons cases - Withdrawals - Summary trials - attendance of persons confined
in prison.

Unit - VII
Evidence in enquiries and trials - commission for examination - record of evidence in absence
of accused - General provisions as to enquiries and trials - legal aid to accused at State expense in
certain case - tendering pardon to accomplice - power to examine the accused - competence of
accused to be a witness - compounding of offences - withdrawals from prosecution.

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Unit - VIII Preventive provisions in the Criminal Procedure Code:
Security for keeping the peace and for good behavior - Suspected persons - habitual offenders
- imprisonment in default of security - Order for maintenance of wives, children and parents -
Procedure - Alteration in allowance - enforcement of order of maintenance - maintenance of public
nuisance - injunction pending enquiry - urgent cases of nuisance or apprehended danger. Disputes
regarding immovable property - procedure for local enquiry - preventive action to the police -
cognizable offences.

Unit - IX Miscellaneous and Legal Aid:

Special provisions as to accused persons of unsound mind - provisions as to offences affecting
the administration of justice - judgement -order to pay compensation - confirmation of death
sentences.

Unit - X
Appeals, Reference and Revision - Transfer of Criminal cases.

Unit - XI
Execution, suspension, Remission and commutation of sentence - Death sentences -
Imprisonment - levy of fine. Provisions as to bail and bonds - disposal of property - Limitation for
taking cognizance of certain offences - inherent powers of the criminal courts.

Unit - XII The Probation of Offenders Act, 1958.

Object of Probation of offenders Act - Power of Court to release offenders after admonition
and on probation of good conduct - Procedure in case of offenders failing to observe conditions of
bond - Appointment and duties of probation officers - Probation officers to bę Public servants - Sec.
360 of CRPC not to apply in certain areas.

Unit XIII The Juvenile Justice (Care and Protection of Children Act, 2000)
Object of Juvenile Justice (Care and Protection of Children Act, 2000) Juvenile Justice Board
- Procedure - Powers. Observation Homes - Special Homes. Bail of Juvenile. Orders that may be
passed regarding Juvenile - Orders that may not be passed against Juvenile. Child in need of care and
protection. Rehabilitation and Social Re-integration.

Statutory Materials with Amendments

1. The Code of Criminal Procedure 1973
2. The Probation of Offenders Act, 1958
3. The Juvenile Justice (Care and Protection of Children) Act, 2000
4. T.N. Victim Comparisation scheme 30th Nov 2013.
5. Criminal Law (Amendment) Act, 2013.
Books for Reference:

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1. Sohoni's The Code of Criminal Procedure, 1973 (5 Volumes) (Act 2 of 1974) by R. Nagaratnam,
Advocate, Published by the Law book Company (P) Ltd.
2. B. B. Mitra on the Code of Criminal Procedure, 1973 (2 Vol) Edited by S. R. Roy Judge, (Retd)
High Court, Published by Kamal Law House 8/2, K.S. Roy Rd, Calcutta.
3. Outlines of Criminal Procedure : R.V.Kelkar.
4. The Code of Criminal Procedure, 1973 : Ratanlal
5. Criminal Procedure Code, 1973 : Durga Das Basu.
6. The Juvenile Justice Act, 1986 with important Judgements(Acts 53 of 1986) by Dr. S. K.
Awasthi, Advocate, Published by Law vision 971/1, Tulsipur, Allahabad -211003
7. Juvenile Justice Act. : S. Sambandam.
****************************

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 CODE OF CRIMINAL PROCEDURE,1973

1: Introduction and Functionaries Under the Code

2: Jurisdiction of Criminal Courts

3: Investigation

4: Arrest, Search And Seizure

5: Complaints to Magistrates

6: Bail and Anticipatory Bail

7: Charge And Trial

8: Plea Bargaining

9: Judgment and Appeal

10: Reference, Revision and Transfer

11: Preventive Measures and Security Proceedings

12: Maintenance of Wives, Children And Parents

13: Miscellaneous

14: The Probation of Offenders Act, 1958

15. Juvenile Justice System

16. QUESTION BANK

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 1: INTRODUCTION AND FUNCTIONARIES UNDER THE CODE

Introduction
The Code of Criminal Procedure is a procedural law that came into force on April 1, 1974.
The Criminal Procedure Law has been designed to look after the machinery for the detection of
crime, apprehension of suspected criminals, the collection of evidence, determination of the guilt or
innocence of the suspected person, and imposition of suitable punishment to the guilty person.
Another important point to note in this regard is that procedural law is not wholly procedural or
adjective in nature.

The Code of Criminal Procedure 1973 is the procedural law providing the machinery for the
punishment of offenders under substantive criminal law. The code contains elaborate details about
the procedure to be followed in every investigation, inquiry and trial, for every offence under the
IPC or any other law. Earlier there was no uniform law of criminal procedure until the Code of
Criminal Procedure of 1882; it was replaced by the Code of 1898. The act was amended in 1923
and 1955.

This code was repealed by the Code of 1973 enacted by Parliament on 25th January 1974
and made effective from 1-04-1974 so as to consolidate and amend the law relating to Criminal
Procedure. Its object is to provide machinery for determining the guilt of and imposing punishment
on offenders under the substantive criminal law, for example, the Indian Penal Code (I.P.C.). The
two Codes are to be read together. The Code also provides machinery for the punishment of
offences under other Acts.
The Code of Criminal Procedure is complete code with respect to matters provided under it,
thus the code must be deemed to be exhaustive. The Supreme Court has said “It is the procedure
that spells much of the difference between the rule of law and the rule of whim and caprice”. (Iqbal
v. State of Maharashtra (1975) 3 SCC 140)

Important Definitions under the Code

 Offence
Section 2(n) of the CrPC defines the word “offence” to mean any act or omission made
punishable by any law for the time being in force and includes any act in respect of which a
complaint may be made under Section 20 of the Cattle-trespass Act, 1871. However, the term is
more elaborately defined under Section 40 of the IPC which states that “offence” denotes a thing
made punishable by the Code.

Section 39 of the CrPC imposes a duty on every person who is aware of the commission of
or of intention to commit an offence, to give information of certain offences which are specified in
Clause (i) to (xii) of sub-Section (1). An offence is what the legislature classes as punishable. Mens
Rea a bad intention or guilt is an essential ingredient in every offence.

Bailable Offence and Non-bailable Offence

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 A “bailable offence” means an offence which is shown as bailable in the First Schedule or
which is made bailable by any other law for the time being in force. “Non-bailable” offence means
any other offence. [Section 2(a)]

Cognizable Offence and Non-cognizable Offence

“Cognizable offence” means an offence for which, and “cognizable case” means a case in
which, a police officer may, in accordance with the First Schedule or under any other law for the
time being in force, arrest without warrant.

“Non-cognizable offence” means an offence for which, and “non-cognizable” case means a
case in which, a police officer has no authority to arrest without warrant. Thus, a non-cognizable
offence needs special authority to arrest by the police officer. [Section 2(c) and 2(l)]

In order to be a cognizable case under Section 2(c) of the Code, it would be enough if one or
more (not ordinarily all) of the offences are cognizable.

(Note: It may be observed from the First Schedule that non-cognizable offences are usually
bailable while cognizable offences are generally non-bailable).

Complaint
“Complaint” means any allegation made orally or in writing to a Magistrate, with a view to
his taking action under this Code that some person, whether known or unknown, has committed an
offence, but it does not include a police report. [Section 2(d)]

However, a report made by the police officer in a case which discloses after investigation,
the commission of a non-cognizable offence shall be deemed to be a complaint, and the police
officer making the report as a complainant. In general a complaint into an offence can be filed by
any person except in cases of offences relating to marriage, defamation and offences mentioned
under Sections 195 and 197. A complaint in a criminal case is what a plaint is in a civil case. The
requisites of a complaint are:

 an oral or a written allegation;

 some person known or unknown has committed an offence;
 it must be made to a magistrate; and
 it must be made with the object that he should take action.

There is no particular format of a complaint. A petition addressed to the Magistrate

containing an allegation that an offence has been committed, and ending with a prayer that the
culprit be suitably dealt with is a complaint. (Mohd. Yousuf v. Afaq Jahan, AIR 2006 SC 705)

Police report is expressly excluded from the definition of complaint but the explanation to
Section 2(d) makes it clear that such report shall be deemed to be a complaint where after
investigation it discloses commission of a non-cognizable offence. Police report means a report
forwarded by a police officer to a Magistrate under Subsection (2) of Section 173.

Bail
Page 8 of 199
 It means the release of the accused from the custody of the officers of law and entrusting
him to the private custody of persons who are sureties to produce the accused to answer the charge
at the stipulated time or date.

An “anticipatory bail” is granted by the High Court or a Court of Session, to a person who
apprehends arrest for having committed a non-bailable offence, but has not yet been arrested
(Section 438). An opportunity of hearing must be given to the opposite party before granting
anticipatory bail (State of Assam v. R.K. Krishna Kumar AIR 1998 SC 144).

Inquiry
It means every inquiry other than a trial, conducted under this Code by a Magistrate or
Court. [Section 2(g)]. It carries the following three features:
i. the inquiry is different from a trial in criminal matters;
ii. an inquiry is wider than trial;
iii. it stops when the trial begins.

Investigation
It includes all the proceedings under this Code for the collection of evidence conducted by a
police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this
behalf. [Section 2(h)]

The three terms – ‘investigation’, ‘inquiry’ and ‘trial’ denote three different stages of a
criminal case. The first stage is reached when a police officer either on his own or under orders of a
Magistrate investigates into a case (Section 202). If he finds that no offence has been committed, he
submits his report to the Magistrate who drops the proceedings.

But if he is of a different opinion, he sends that case to a Magistrate and then begins the
second stage – a trial or an inquiry. The Magistrate may deal with the case himself and either
convict the accused or discharge or acquit him. In serious offences the trial is before the Session’s
Court, which may either discharge or convict or acquit the accused. (Chapter XVIII)

Judicial Proceeding
It includes any proceeding in the course of which evidence is or may be legally taken on
oath. The term judicial proceeding includes inquiry and trial but not investigation. [Section 2(i)]

Pleader
With reference to any proceedings in any Court, it means a person authorised by or under
any law for the time being in force, to practise in such Court and includes any other person
appointed with the permission of the Court to act in such proceeding. [Section 2(q)] It is an
inclusive definition and a non-legal person appointed with the permission of the Court will also be
included.

Public Prosecutor
A “public prosecutor” means any person appointed under Section 24, and includes any
person acting under the directions of a Public Prosecutor. [Section 2(u)]

Public prosecutor, though an executive officer is, in a larger sense, also an officer of the
Court and he is bound to assist the Court with his fair views and fair exercise of his functions.
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Summons and Warrant Cases
“Summons case” means a case relating to an offence and not being a warrant case. [Section
2(w)] A “Warrant case” means a case relating to an offence punishable with death, imprisonment
for life or imprisonment for a term exceeding two years. [Section 2(x)]

Those cases which are punishable with imprisonment for two years or less are summons
cases, the rest are all warrant cases. Thus, the division is based on punishment which can be
awarded. The procedure for the trial of summons cases is provided by Chapter XX and for warrant
cases by Chapter XIX of the Code of Criminal Procedure.

Classification of Offences Under the Code of Criminal Procedure, 1973

Introduction

The Code of Criminal Procedure is the counterpart of its substantive legal enactment, the
Indian Penal Code, 1860. The Cr.P.C provides for trial of acts mentioned as offences under the IPC.
But, however, to ensure an expeditious and fair trial, there is a categorical classification of offences
under the Cr.P.C.

One principal object of criminal law is to protect society by punishing offenders. However,
justice and fair play require that no one is punished without a fair trial. Therefore, it becomes
absolutely necessary that every person accused of the crime is brought before the court for trial and
determination of his guilt or innocence. This duty is vested upon the police officers. The police
department is a functionary under the Code of Criminal Procedure, 1973 responsible for all the pre-
trial procedures including, arrest and production of the accused of trial.

The Police Act, 1861 provides that “it shall be the duty of every police officer to collect and
communicate public peace; to prevent the commission of offences and public nuisance…”

The Code, however, does not contemplate the use of the police in respect of an investigation
into each and every offence under the Indian Penal Code, 1860 or any other law. Further, the force
used by police “during and after arrest also depends upon the nature of the offence committed” .
Taking these into consideration, the Code has divided the offences under IPC and all other penal
laws into two classes comprising of two categories each.

Classes of Offences

1. Cognizable and non-cognizable Offences

The Criminal Procedure Code provides for two categories of offences – cognizable and non-
cognizable. Clauses (c) and (l) of Section 2 of the Code defines cognizable and non-cognizable
offences respectively as follows:
Section 2(c): “cognizable offence” means an offence for which, and “cognizable case”
means a case in which, a police officer may, in accordance with the First Schedule or under any
other law for the time being in force, arrest without warrant;

Page 10 of 199
 Section 2(l): “no- cognizable offence” means an offence for which, and “no- cognizable
case” means a case in which, a police officer has no authority to arrest without a warrant.
As indicated by the above definition, cognizable offences are those where the police can suo
motu take action without the need for any authorized permission from the Magistrate. These
offences are serious in nature and the society cannot afford wasting time on legal formalities and to
allow the offender to conceal evidence or worse; abscond.

With respect to the meaning of cognizable offence under the Code, the Calcutta High Court
made certain observations in State of West Bengal v. Joginder Mallik. The court held that where
the alleged offence is not cognizable according to the First Schedule to the Code or if it has not been
made cognizable by the Act creating the offence, it will not be considered as cognizable simply
because the police was empowered to arrest the person for commission of offence without a
warrant.

On the contrary, in case of a non-cognizable offence, the police do not have the power or the
authority to arrest a person without a warrant nor can the police officer initiate the investigation
without a specific order of the Magistrate.

In all cases of non-cognizable offence, the person reporting the offence is referred to the
Magistrate and a complaint has to be filed before the Magistrate under Section 190 of the Cr.P.C.
Besides certain exceptions, “the non-cognizable offences are considered more in the nature of
private wrongs and therefore, the collection of evidence and the prosecution of the offender are
initially left to the initiatives and efforts of private citizens”. However, if a Judicial Magistrate
“considers it desirable that a non-cognizable case should be investigated by the police, he can order
the police to do so”[ §155 (3), Cr.P.C, 1973.].

2. Bailable and Non-bailable Offences

The Code has further classified all offences under the IPC as bailable and non-bailable
offences. According to Section 2(a) of the Cr.P.C:

Section 2(a): “bailable offence” means an offence which is shown as bailable in the First
Schedule, or which is made bailable by any other law for the time being in force; and “non- bailable
offence” means any other offence.

The definition of bailable offence and the non-bailable offence does not say a lot about its
meaning or nature. The code has not provided any parameters to determine which offence should be
bailable and which should not be. However, it has been classified in the Frist Schedule to the Cr.P.C
and it has to be followed without any discretion or fail. If an act is made an offence in some other
law and it has not been classified as bailable or non-bailable, usually the graveness of the offence is
looked into.
In general scenario, an offence which is punishable with an incarceration period of three
years or less is considered to be less heinous and hence, bailable while contrary to it, an offence
where the offender can be incarcerated for more than three years is usually non-bailable.

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 However, the Supreme Court criticized this rule in Talab Haji Hussain v. Madhukar
Purshottam. The court observed that if the above rule had been true, it may not be easy to explain
why offences under Sections 477, 477A, 475 and 506 of the IPC should be made bailable while
offence under Section 379 should be non-bailable. It may be noted that offences under Sections 475,
477 and 477A are all punishable with an incarceration period which may extend to seven years but,
however, they are made bailable under the First Schedule.

In case of offences under laws other than the IPC, this broad rule is accepted because it is
not expedient to list all the offences under all the laws for the time being in force and keep changing
the First Schedule, whenever a new penal law comes. However, “this general rule can be suitably
modified according to the specific needs by making a special provision in law”.

The basic difference and meaning of the two offences are that “if a person accused of a
bailable offence is arrested or detained without warrant, he has a right to be released on bail. But if
the offence is non-bailable, it does not remain a matter of right but only a privilege granted at the
discretion of the court”. Bail is an amount of money furnished by the arrested person with or
without any person(s) as surety to ensure his appearance before the court when required.

The distinction between Cognizable and non-cognizable Offences

The Code has not provided any determinant to decide whether an offence is a cognizable or
non-cognizable offence. Therefore, the following points are important considerations that determine
the category of the offence.

1. Precisely, cognizable offences are those which under ordinary circumstances seem to
be more dangerous, grave and a serious threat to the society. The seriousness of the offence is
determined by the punishment given for the offence. Usually, if “an offence is punishable with
imprisonment for a term of three years or more, it is considered to be serious”. In heinous crimes
such as murder, dacoity, dacoity with murder, sexual violence etc. prompt police action for the
arrest of the offender and investigation into the case is necessary for successful prosecution and
thus, therefore, these offences are treated as cognizable.

2. Offences which are in the nature of private wrongs, though serious in nature, are
considered to be non-cognizable. For instance, bigamy, adultery etc. are all punishable with
imprisonment for more than five years’ term but are made non-cognizable. The reasoning is that
making these offences cognizable might involve too much risk of police intervention into the
private family of the individuals.

3. Some offences under Chapter XI of IPC relating to giving of false evidence and
offences against justice are considered non-cognizable even when the punishment makes them
serious offences. This is to prevent police intervention during conduction of court proceedings.

The functionaries under the code of criminal procedure, 1973

Introduction

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 The functionaries exercising powers and discharging duties under the Code of Criminal
Procedure, 1973 are 1) the police, 2) the prosecutors, 3) defence counsels 4) Magistrates and Courts
and 5) Prison Authorities and Correctional Home Services.

Amongst these, the role of the Magistrates and courts is pivotal while other functionaries
are, in a way, accessories to it. It is, therefore, expedient to consider the constitution, powers and
functions of the courts first and then followed by the other functionaries.

I. Magistrates and courts

The entire territory of India consists of States and for the purpose of the Code, “the basic
territorial divisions of the State are the districts and the Sessions Divisions”[ §7, Cr.P.C, 1973.]. The
Code has also considered the special needs of big cities like Bombay, Calcutta, Madras, etc. and has
recognised them as metropolitan areas[§8, Cr.P.C, 1973.] and each such area shall be considered as
a separate sessions division and district.

According to this territorial demarcation, the criminal courts in the country include the
Supreme Court of India, High Courts of every State, Court of Session in every Session Division and
Courts of Judicial Magistrates in every district.

Supreme Court and the High Courts

The Supreme Court of India and the State High Courts have been created by the
Constitution, and their jurisdictions and powers have been defined by the Constitution itself.
Besides, Cr.P.C makes the provision of appeal to the Supreme Court from any order of conviction
from a High Court under Sections 374 and 379. Further, Section 406 empowers the Supreme Court
“to transfer any case or appeal from one High Court to another or from one subordinate court to
another in the interest of justice”[ §406, Cr.P.C, 1973.].

With respect to the High Courts, Section 483 of the Code provides that “every High Court
shall exercise superintendence over the courts of Judicial Magistrates subordinate to it to ensure
expeditious and proper disposal of cases” [§483, Cr.P.C, 1973.]. Besides, the High Court is also
entrusted with the powers to hear appeals and references from decisions of Court of Session and
also revisions of its own judgments.

Court of Session

The Court of Session is established under Section 9 of the Code which is presided over by a
session judge appointed by the High Court of the State. Section 9 further establishes the Court of
Additional Sessions Judges and Assistant Session Judges for the purpose of ease and expediency.
In its original jurisdiction, the Court of Session is empowered to try offences which are
specifically triable by it under Schedule 1 of the Code. It has the power to examine witnesses and
pass sentences of imprisonment of any term and levy death penalty subject to confirmation by the
High Court. In its appellate jurisdiction, it has the power to hear appeals against orders and
decisions of Judicial Magistrates.

Courts of Judicial Magistrates

The courts of Judicial Magistrates are “established by the State Government in consultation
with the High Court”[ §11, Cr.P.C, 1973.]. The State is empowered to establish as many courts of

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 Judicial Magistrates of First Class and Second Class in every district as it deems necessary. The
provision also provides for “establishment of one or more special courts of Judicial Magistrates of
First Class and Second Class to try any particular case in any local area”[ §11, Cr.P.C, 1973.].
Moreover, under Section 12, the High Court is required to “appoint a Judicial Magistrate of the
First Class as the Chief Judicial Magistrate who shall be the head of the Magistracy”[ Delhi Judicial
Service Assn. v. The state of Gujarat, (1991) 4 SCC 406.].
The magistrates’ courts are the court of the first instance and try all offences exclusively
triable by it under Schedule 1 of the Cr.P.C. Even an offence triable by the Court of Session needs
to be committed by the Magistrate under Section 209. The Magistrates are empowered “to pass
sentences of imprisonment for a term not exceeding 7 years”[ §29, Cr.P.C, 1973.] (7 years is the
maximum punishment by a Magistrate and can be passed only by Chief Judicial Magistrate).

II. The Police

As seen before, the ordinary criminal courts originate from the provisions of the Criminal
Procedure Code, 1973. In the case of the police force, it is somewhat different. The Code does not
establish or create the Police or Police Officers, but presupposes their existence and arms them with
certain powers and directs them to discharge certain duties.

Establishment of the Organisation of Police

The police organization is an establishment under the Police Act, 1861. The Act states
that “the police force is an instrument for the prevention and detection of crime”[ Police Act, No. 5,
Act of Parliament, Preamble, 1861 (India).]. The legislative power with respect to the establishment
of State police forces vests on the State legislature and any person eligible to join the force requires
to be enrolled to the State forces.
The force may contain any number of officers as the State prescribes and such officers are
provided with certificates that vests upon them the powers and duties. The Supreme Court held that
“such certificates shall cease to be effective and shall be returned as soon as the police officer
ceases to be an officer”[ Supt. of Police v. Dwarka Das, AIR 1979 SC 336.].

Powers and Functions under Cr.P.C.

The Cr.P.C confers specific powers, for instance, “power to arrest, search a place, etc. on
members of the police force who are enrolled as police officers”. Further, extensive powers have
been vested upon officer-in-charge of the police station.
These officers, usually called the Station House Officers are also required “to discharge
onerous duties in relation to detection, investigation and prevention of offences”. Further, Section
36 of the Code vests extra-territorial powers upon officers above the rank of officer-in-charge for
the purpose of investigation and prevention of crime[State of Bihar v. J.A.C. Saldanha, (1980) 1
SCC 554.].

III. The Prosecutors

A crime is considered to be a wrong against the society and therefore, the State takes the
responsibility to prosecute such persons who wrong. Thus, the State is represented by lawyers
specifically appointed for this purpose called the Public Prosecutors. The Public Prosecutors
conduct prosecution of all the offences in any criminal court.

Appointment and Constitution

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 Section 24 of the Code empowers the Central and State Government to “appoint Public
Prosecutors at the State level and District level to conduct appeal or prosecution in the High Court
and Subordinate Courts”[ §24 (1), Cr.P.C, 1973.] respectively. The provision further provides for
the appointment of Additional and Assistant Public Prosecutors to work under the direction of the
Public Prosecutor.
“A person shall be eligible to be appointed as Public Prosecutor of High Court or District
Court if s/he has been in practice as an advocate for not less than 7 years”[ §24 (7), Cr.P.C, 1973.].
In Phool Singh v. the State of Rajasthan, the court held that “the State may appoint a special
public prosecutor in a case if requested by the victim and insist that he be paid by the victim or his
dependents” [Phool Singh v. the State of Rajasthan, 1993 Cri. L.J 3273 (Raj).].

Powers and Functions under Cr.P.C

The Code states that “trial before a court of the session shall be conducted by the Public
Prosecutor”[ §225, Cr.P.C, 1973.]. Further, Section 301 empowers the Public Prosecutor and the
Assistant Public Prosecutor to appear before any criminal court and conduct the prosecution without
any written authority. Thus, “a Public Prosecutor can conduct prosecution as a matter of right”.
Now, with respect to duties, the code does not specifically mention “the spirit in which the duties of
the prosecutor are to be discharged”.
The purpose of the trial is to determine the truth; whether the accused is guilty or innocent.
Thus, whether the prosecution is duty-bound to obtain a conviction since he represents the victim or
his role is only to assist the court in determining the truth is questionable. The court in Ghirrao v.
Emperor held that “the prosecutor should place before the court all evidence in his possession
whether it be in favour of or against the accused” [Ghirrao v. Emperor, (1933) 34 Cri. L.J 1009].

The role of the prosecutors under Cr.P.C was elaborately explained by the apex court in Md.
Mumtaz v. Nandini Satpathy. The court observed that “a public prosecutor should be personally
indifferent to the result of the case. His duty should consist of placing all the available evidence in
order to aid the court in discovering the truth” [Md. Mumtaz v. Nandini Satpathy, (1987) 1 SCC
288.]. Therefore, it can be inferred that in the machinery of justice, a Public Prosecutor has to play a
very responsible role; “his impartial conduct is equivalent to the impartiality of the court itself”.
IV. Defence Counsels
The basic principle of natural justice says that no one should be condemned unheard. This is
ensured by requiring the Magistrate to record the statement of the accused person under Section
313 of the Cr.P.C and this is the first instance where the accused gets an opportunity to speak for
himself and defend himself before the trial commences.

However, an accused person is a layman (in most cases) and is not well versed with the
technicalities of law and rhetoric of the lawyers. Considering this, Section 303 of the code vests
upon the accused “the right to be defended by a pleader of his choice”[ §303, Cr.P.C, 1973.] who is
known as the ‘defence counsel’.

Appointment and Establishment

Unlike other functionaries under the Code, the defence counsel is not a government
employee but is employed by the accused person or his family to defend him against the alleged
charges. Nevertheless, they are considered to be the officers of the court because their existence is
indispensable to meet the purpose of a fair trial. These defence counsels acquire their right to

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 represent the accused by independent contracts called the ‘vakalastnama’ and are not established
under the code.

However, the code does provide for defence counsel in the form of free legal aid to persons
who cannot employ an advocate due to certain social or economic backwardness[§304, Cr.P.C,
1973.]. Providing free legal aid and appointing a defence counsel for indigent accused has been
pressed by the apex court repeatedly in Khatri (2) v. State of Bihar and Suk Das v. UT of
Arunachal Pradesh.

V. Prison Authorities
Similar to the police force, the prison authorities are also not established under the Code but
the Code presupposes their existence. The prison and its regulation are overlooked by the Prisons
Act, 1894, the Prisoners Act, 1900, the Borstal School Acts and the Probation of Offenders Act,
1958. The role of the prison authorities, however, is vital in all the three stages in any criminal case,
i.e. pre-trial, trial and post-trial.
During the pre-trial stage, the Magistrate is empowered to order the detention of an arrested
person in judicial custody if he has reason to believe that the safety of the accused might be
endangered under police custody.

Any person under judicial custody is under the surveillance of the prison authorities of the
district prison of that area. Further, the code also empowers the Magistrate and judges under certain
circumstances, such as when an investigation is not completed in 24 hours under Section 167, order
detention of such undertrial prisoners in jail during the pendency of the proceedings.
Lastly, the courts are also empowered “to impose sentences of imprisonment on convicted
persons and to send them to prison authorities for the due execution of such sentences”.

2: JURISDICTION OF CRIMINAL COURTS

Constitution of Criminal Courts and it’s Hierarchy

Introduction

Administration of justice is the most important function of the state. For this purpose our
constitution has set up a hierarchy of courts. The Supreme Court is the apex body, followed by 24
High Courts which have been created by the constitution of India, and their jurisdiction and powers
are well defined in the constitution itself.

Article 124 of Indian constitution says that there shall be a Supreme Court of India its
constitutional powers and jurisdictions have been defined from article 124-147. The Supreme Court
is meant to be the highest court of appeal which takes up appeals against the verdict of High Courts.
There are 24 High Courts in the country which regulates the working of the Sessions court. The
Constitution, by Article 227, provides that every High Court shall so exercise superintendence over
all courts and tribunals. It further provides that the High Court shall exercise its powers judiciously
in order ensure proper working of judicial mechanism.

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CLASSES OF CRIMINAL COURTS

Apart from the Supreme Court and High Courts, the following criminal courts have been
described under section 6 of Criminal Procedure Code, 1973:-

1. Court of Session
2. Judicial Magistrate of first class and, in any metropolitan area Metropolitan
Magistrates
3. Judicial Magistrate of second class; and
4. Executive Magistrates
Section 7(1) of Criminal Procedure Code 1973 states that “The State Government shall
establish a Court of Session for every session’s division. The judge of the Sessions court is
appointed by the High Court. In the hierarchy Sessions court is followed by Judicial Magistrate
Class I and then judicial magistrate of Class II. In metropolitan areas, it is followed by Chief
Metropolitan Magistrate and metropolitan magistrate. An Executive Magistrate is one of the classes
of courts only while performing judicial functions.

POWER OF COURTS TO TRY OFFENCES

Chapter III of CrPC deals with power of Courts. One of such power is to try offences.
Offences are divided into two categories:

1. those under the Indian Penal Code; and

2. those under any other law.
According to Section 26, any offence under the Indian Penal Code, 1860 may be tried by the
High Court or the Court of Session or any other Court by which such offence is shown in the First
Schedule to be triable, whereas any offence under any other law shall be tried by the Court
mentioned in that law and if not mentioned, it may be tried by the High Court or any other Court by
which such offence is shown in the First Schedule to be triable. This Section is a general Section
and is subject to the other provisions of the Code.

Power of the Court to pass sentences

Sentences which may be passed by the criminal have been mentioned under section 28 & 29
of the criminal procedure code.

1. Sentences which High Courts and Sessions Judges may pass

According to Section 28, a High Court may pass any sentence authorised by law. A Sessions
Judge or Additional Sessions Judge may pass any sentence authorised by law, but any sentence of
death passed by any such judge shall be subject to confirmation by the High Court.

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 An Assistant Sessions Judge may pass any sentence authorised by law except a sentence of
death or of imprisonment for life or of imprisonment for a term exceeding ten years. Thus, Section
26 of the Code enumerates the types of Courts in which different offences can be tried and then
under Section 28, it spells out the limits of sentences which such Courts are authorised to pass.

2. Sentences which Magistrates may pass

Section 29 lays down the quantum of sentence which different categories of Magistrates are
empowered to impose. The powers of individual categories of Magistrates to pass the sentence are
as under:

 The Court of a Chief Judicial Magistrate may pass any sentence authorised by law
except a sentence of death or of imprisonment for life or of imprisonment for a term exceeding
seven years.
 A Magistrate of the first class may pass a sentence of imprisonment for a term not
exceeding three years or of a fine not exceeding five thousand rupees, or of both.
 A Magistrate of the second class may pass a sentence of imprisonment for a term not
exceeding one year, or of fine not exceeding one thousand rupees, or of both.
A Chief Metropolitan Magistrate shall have the powers of the Court of a Chief Judicial
Magistrate and that of a Metropolitan Magistrate, and the powers of the Court of a Magistrate of the
First class.

3. Sentence of imprisonment in default of fine

Where a fine is imposed on an accused and it is not paid, the law provides that he can be
imprisoned for a term in addition to a substantive imprisonment awarded to him, if any. Section 30
defines the limits of Magistrate’s powers to award imprisonment in default of payment of fine.

It provides that the Court of a Magistrate may award such term of imprisonment in default
of payment of fine as is authorised by law provided the that the term:

 is not in excess of the powers of the Magistrate under Section 29; and
 where imprisonment has been awarded as part of the substantive sentence, it should
not exceed 1/4th of the term of imprisonment which the Magistrate is competent to inflict as
punishment for the offence otherwise than as imprisonment in default of payment of the fine.

4. Sentences in cases of conviction of several offences at one trial

Section 31 relates to the quantum of punishment which the Court is authorised to impose
where the accused is convicted of two or more offences at one trial.

(1) When a person is convicted at one trial of two or more offences, the Court may, subject
to the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such
offences, to the several punishments prescribed therefor which such Court is competent to inflict;
such punishments when consisting of imprisonment to commence the one after the expiration of the
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 other in such order as the Court may direct, unless the Court directs that such punishments shall run
concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason
only of the aggregate punishment for the several offences being in excess of the punishment which
it is competent to inflict on conviction of a single offence, to send the offender for trial before a
higher Court: Provided that-

 in no case shall such person be sentenced to imprisonment for a longer period than
fourteen years;
 the aggregate punishment shall not exceed twice the amount of punishment which the
Court is competent to inflict on a single offence.
(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive
sentences passed against him under this section shall be deemed to be a single sentence.

Determination of Jurisdiction for Inquiry and Trial Of Offences

At the point when an offence has been carried out at a specific spot, normally the court in
whose jurisdiction the wrongdoing has been submitted has the jurisdiction to ask into and attempt
that case, yet question emerges when the offence has been submitted in an outside nation.

It is a well-settled standard of International Law that at whatever point an individual is

blameworthy of any offence, carried out by him in a remote express, the offence would be culpable
as indicated by the laws of that state, where the wrongdoing has been submitted.

Introduction
As per Section 2(g) of the Code of Criminal Procedure (hereinafter ‘CrPC’), “inquiry” is
characterized as each request, which doesn’t go under the meaning of trial, which is investigated by
either the court of a Magistrate or by some other Court so approved under the law specifically under
CrPC. This implies and incorporates each one of those procedures before encircling of charges.

It very well may be led either by a Magistrate or under the watchful eye of a Court. These
procedures don’t bring about conviction or exoneration. It can just bring about release or duty of
preliminary. It alludes to everything done before the preliminary starts. Preliminary starts where
request closes. The object of inquiry is to recognize whether the levying of the charges are feasible
or not.

On the other hand, the trial initiates when the inquiry process reaches a conclusion. It is the
most significant and the third piece of a legal continuing. It is the procedure by which the blame or
guiltlessness of a charge on an individual is found out.

As indicated by Section 190 of the CrPC, a few points should be remembered before the
commencement of the procedures. The trial is a piece of the procedures where the assessment of
witnesses is finished. Additionally, the reason is likewise dictated by the judicial tribunal or courts,
and it is finished up by either the conviction or the absolution of the charged individual.

Territorial Jurisdiction of Criminal Courts

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Original Place of Inquiry and Trial
Section 177 – This provision of the Code provides that the Court under whose jurisdiction,
i.e. within whose territorial limits the offence has been submitted just has the power to ask into and
attempt such case.
Section 178 arrangements with the circumstances where the offence has been submitted in
more than one spot. It provides that at the point when the spot of commission of the offence is
questionable in light of the fact that it has been submitted in a few spots or where an offence is
somewhat dedicated in one neighbourhood the rest in another region or at the point when the
offence includes a few demonstrations, submitted in various neighbourhoods;
On the off chance that any of the above conditions are satisfied, at that point, such offence
might be asked into or attempted by a Court having jurisdiction over any of such neighbourhood.

Section 179 underlines that reality that when a demonstration is an offence in view of
anything which has been done and as a result which has followed, the said offence might be asked
into or attempted by a court of competent jurisdiction.

Section 180 arrangements with the spot of trial when the demonstration submitted is an
offence since it is identified with some other offence. As indicated by it the offence which has been
submitted first must be asked into or attempted, when two acts are done regarding one another and
both are offences, by the court under whose jurisdiction both of the demonstrations have been
submitted. In every single such arrangement, the accentuation is consistently on where the offence
has been submitted, to determine the jurisdiction.

The jurisdiction in Specific Offenses

In any case, section 181 indicates conditions in the event of specific offences. As indicated
by section 181(1), the trial can likewise be started where the charged is found, other than where the
offence was submitted. Section 181(1) discusses the offences, when not submitted in a solitary spot.
It manages the accompanying cases:

 Thug or murder submitted while playing out the demonstration of hooligan, dacoity,
or dacoity with murder and so forth where the offence is submitted or where the denounced is
found.
 Kidnapping or abduction of an individual the spot from where the individual was
grabbed/kidnapped or where the individual was hidden or passed on or kept.
 Robbery, extortion or theft – the Court where the offence has been submitted or where
the taken property is controlled, gotten or conveyed, has the jurisdiction to attempt such a case.
 Criminal misappropriation or criminal breach of trust – where the offence has been
carried out or where any piece of the property which is the topic of the offence has been gotten or
held, required to be returned or represented, by the blamed.
Yet, the above section manages offences when the guilty party is voyaging, as clear from the
idea of the offences as indicated under this section.

Jurisdiction when Offense Committed by Letters/Post

Section 182 arrangements with offences submitted by letters and so on. Under this section, if
any offence incorporates tricking, if the injured individual has been hoodwinked by methods for
letters or media transmission messages, it will be investigated by the Court under whose nearby
jurisdiction such letters or messages have been sent or got; and under the neighbourhood
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 jurisdiction of the Court in which the property has been conveyed by the individual misled or has
been gotten by the charged individual.

Jurisdiction when Offense Committed during a Voyage

Section 183 arrangements with offences which have been submitted during adventure or
journey. At the point when an individual submits an offence, during venture or against an individual
who is voyaging, or the thing in regard of which, the offence has been submitted is at the
appropriate time of its adventure or journey, the offence must be asked into or tired by a Court
through or into whose neighbourhood jurisdiction that individual or thing has gone, during the
adventure.

Jurisdiction for Offenses Jointly Triable

The spot of trial for offences which are triable together comprises of two conditions.

 At the point when an individual submits offences, to such an extent that he might be
accused of, attempted at one trial for, each such offence as per the arrangements of section 219,
section 220 or section 221.
 At the point when the offences or offences have been submitted by a few people, in a
way that the Court may charge and attempt them together, as per the arrangements of section 223.
In both of the conditions, the Court which is equipped to ask and attempt shall do likewise.

The jurisdiction in Other Cases

Section 185 arrangements with the intensity of the State Government, as indicated by which
the legislature can coordinate that any cases or class of cases which have been submitted for trial in
any region, might be attempted in a sessions court.
It needs to guarantee that such heading isn’t conflicting with any of the bearings which have
been as of now given by some other Superior Court, according to the Constitution, or as referenced
under the Code of Criminal Procedure or under some other law for the present in power.

Section 186 tends to the circumstance wherein the awareness of a specific offence has been
taken by at least two courts and perplexity emerges concerning which of the Courts will ask into or
attempt that offence, in such a case, just the High Courts have the position to determine the disarray.
The criteria for settling such issues are as per the following:

 In the event that a similar High Court administers the courts in question, at that point
by that High Court.
 In the event that a similar High Court doesn’t oversee the courts in question, at that
point, by the High Court which initially initiated the procedures as a re-appraising criminal court.
From that point, the various procedures in regard to that offence will be stopped.
Section 187 states the intensity of a Magistrate to give summons or warrant for offences
which have been submitted past his neighbourhood jurisdiction. In such a circumstance the
Magistrate has the power to request such an individual to be created before him and afterwards send
him to the Magistrate of able jurisdiction.

Jurisdiction when Offense Committed Outside India

The conditions identified with the offences when submitted outside the domain of India have
been managed under section 188. As per this section, when an offence is submitted outside India-

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  by a resident of India, regardless of whether on the high oceans or somewhere else
 by an individual, not being such resident, on any ship or airship enrolled in India.
Such an individual might be treated in regard of such offence as though it had been
submitted at wherever inside India and at such a spot, where he might be found. The stipulation to
this section determines that no such offence will be asked into or attempted in India without the past
approval from the Central Government.

The most significant factor in the previously mentioned arrangement is where the offence
has been submitted. Section 188 explicitly manages the situation when the offence is submitted
outside India. These offences must be esteemed to have been submitted in India, whenever
submitted by an Indian resident, in high oceans or in some other spot.
Additionally, when the offence is submitted by an individual who in spite of the fact that
isn’t an Indian resident yet is going in any Indian flying machine or ship.

At the point when the arrangements of Section 188 are relevant, at that point the Central
Government may, in the event that it regards fit, direct that the duplicates of affidavits or displays
given to a legal official or before a strategic or consular delegate of India in or for that domain will
be gotten as proof by the Court holding such request or trial regardless in which such Court may
give a commission for accepting proof with regards to the issues to which such statements or shows
related.

Section 188 and Section 189 ought to be perused together. They continue on the premise
that a criminal is in India and can be found anyplace in India. The Court needs to discover the
blamed and the seeing for the denounced has as done where the charged shows up.
It is obvious from the above section that the denounced can’t be found by a minor protest or
by the Police. Further, it is by outlandish for the casualty of an offence submitted outside India, to
visit India and attempt to determine the area of the denounced and afterwards approach the court.
The parity of comfort is higher on such an injured individual. Hence, all such focuses have been
considered while drafting Section 188 and Section 189 of the Code of Criminal Procedure.

The said unfortunate casualty has been vested with the privilege to move toward any Court
in India as indicated by his comfort and document a case in regard to the offence submitted upon
him by an Indian abroad.

On account of Reg v. Benito Lopez, the issue identified with the jurisdiction of English
Courts for the offences submitted on the high oceans by outsiders who are going in England borne
ships was addressed. It was held that the nation which attempted the blamed turned out poorly its
jurisdiction. The choice featured the significant rule of International Law that an individual is at risk
to be rebuffed of every single such offence, which he has submitted independent of where it is
submitted.

An Analysis of Offenses under Cr.P.C that are Triable Together

Any number of offenses submitted by a blamed individual in the course for the same
exchange could be tried at one trial, and every single such offence could be made the topic of
charges to be remembered for a similar charge sheet.
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 The standards identifying with the joinder of the charge contained in the CrPC 1973 are
similarly pertinent to trial by court-military, to the extent that they are not disgusting to the
arrangements of the Army Act. Any number of blamed people might be charged mutually and
attempted together for an offence that is asserted to have been submitted by them by and large.

Introduction
The basic or fundamental rule of the trial is that there shall be a separate trial for separate
offences with which the accused person is charged by the Magistrate. It means that if a person has
committed an act which amounts to more than one offence, each offence shall be tried separately
before the court.

Moreover, another fundamental rule is that separate accused should be tried separately even
if the offence was committed by them together. However, the Code entails provisions when there
can be the same trial for multiple offences and multiple offenders.

The fundamental thought behind the confining of charges before a trial is started is that the
blamed ought to be educated in a reasonable, brief and exact way the claims which have been raised
against him by the unfortunate casualty before the court. It is basic for the denounced to realize
what the court means to accuse him of, which the indictment requires to demonstrate.

Offenses Triable Together

In general day to day lives, if we have been to court or have heard it at home or on any
media reports, a person is always tried for all the offence together and also all the accomplices are
charged and tried together with him.

Now, the question is how does it happen? How does the basic rule apply in practice? So, the
answer to these questions is simple; that basic rules have so many and practical exceptions that
there is hardly any situation when these fundamental rules apply. The following are the exceptions
to the basic rule of charge and trial:

 Application by the Accused:

The proviso to Section 218 (1) specifically allows the accused person(s) to move an
application in writing to the Magistrate requesting him to try him for all the offence together at one
trial. This is usually done to save time and money. When all the charges are separately tried, it takes
immense time when each evidence is analyzed and every witness is examined and cross-examined.

The process is repeated for every offence and new evidence and brought every time a new
trial commences. This makes it a very tiring and never-ending process. Even when the accused is
innocent he has to undergo years going through the trial. Moreover, this also has an adverse impact
on the pockets of the accused since he has to engage a lawyer to defend him and the longer the trial
goes, the higher amount will be spent on legal services.

In criminal case, the accused is also not entitled to any kind of cost reimbursement for
wrong or misunderstood trial. However, the application under Section 218 (1) cannot be processed
on the request of the applicant alone.
The Magistrate must look into the effect of joinder of charges and ensure that it will not
prejudice the accused and affect the integrity of the fair trial.

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  Three Offences of the Same Kind within a Year:
According to Section 219 CrPC, if a person is accused of commission of two or more
offences which are similar in nature within a period of one year, i.e. 12 months, then he may be
charged with all such offences together and tried for them together as well. This is an exception to
the basic rule of separate charges for separate offences.

Under this provision, the essential requirements are:

i. that the person must have been charged and prosecuted for more than one offence. It
does not include investigation being carried on for another offence. It means that if the person
charged and tried for theft and another offence of criminal misappropriation is being investigated.
These offences cannot be joined unless the trial initiates for both offences,
ii. all the offences which are desired to be charged together must have been committed
within a span of twelve months. It means that not more than twelve months should have passed after
the commencement of trial for the first offence and before the commencement of trial for the last
such offence,
iii. all the offences which are to be jointly charged and tried must be similar in nature.
Now, a similar offence does not mean all must be related to each or all must be sexual
offence, etc. Section 219 (2) defines offence of similar nature as those for which the prescribed
punishment, i.e. tenure of imprisonment and/or fine is same, offences which fall under same section
or same chapter of the Indian Penal Code and offences and attempt to commit such offences are
similar offences for the purpose of this section.

 Offences Committed in the Same Transaction:

This is the most important and basic exception to the fundamental rule of separate charges.
This exception emerges from Section 220 which provides that when a series of acts have been
performed by a person and during the course of such act, several offences have been committed, the
person may be charged and tried for all such offences in one single trial.

For instance, in the aforementioned example where A, B and C robbed a bank, injured a
hostage and killed another, though the basic rule requires them to be charged and tried separately
for distinct offence, this provision creates an exception for such circumstances.
Therefore, if the acts of the accused are such that it has been committed in the course of one
single event, s/he can be charged for all the offences at once. At the point when an individual
accused of at least one offence of criminal breach of trust or exploitative misappropriation of
property as mentioned in sub-section (2) of section 212 or in sub-section (1) of section 219, is
blamed for perpetrating, to encourage or covering the commission of that offense or those offenses,
at least one offenses of misrepresentation of records, he might be accused of and attempted at one
trial for, each such offense.

On the off chance that the demonstrations asserted establish an offense falling inside at least
two separate meanings of any law in power until further notice by which offenses are characterized
or rebuffed, the individual blamed for them might be accused of and attempted at one preliminary
for, every one of such offenses.

In the event that few demonstrations, of which at least one than one would without anyone
else or themselves establish an offense, comprise when consolidated an alternate offense, the
individual blamed for them might be accused of, and attempted at one preliminary for the offense
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 established by such acts when joined, and for any offense established by any, at least one, of such
acts.

 Where it is Doubtful What Offence has been Committed:

There can be circumstances where it becomes ambiguous as to what offence has been
committed by the accused because of the similar nature of the acts. For instance, when the act may
seem to be criminal breach of trust or criminal misappropriation of property or theft, the exception
states that the person alleged to have committed either or any of these offences, may be charged
with any one or all of the offences and tried for them together at the discretion of the Magistrate.

This has been contemplated by Section 221 of the Code which empowers the Magistrate to
charge in alternative or for all the offence that appears to be committed by the person. Moreover,
the second clause also provides a remedy in case the actual offence committed by the person is
completely distinct than the ones with which he was charged. It empowers the Magistrate to try and
convict the person for the offence which has been brought out by evidence even though he is not
charged for the same.

 Where Two or More Persons can be Charged Jointly:

As already asserted above, it is another basic rule of charge and trial that every person
should be charged separately and tried severally. Section 223 makes an exception to this rule under
which provision two or more person can be charged and tried together for the same or distinct
offences as the case may be. According to the section, the person can be charged and tried jointly in
the following circumstances or situations:

a. Where two or more persons commit the same crime while in the same process or same
course of action such as A and B together killed C by strangling him to death.
b. Where two or more persons have together committed an offence such that one is the
main culprit while others have attempted or abetted the commission of the offence such as A and B
plan to rob a bank. A went inside and B waited outside in a car to drive them back.
c. Where two or more offences which are of similar nature as expounded under Section
219 are committed by two or more person before the expiry of a period of twelve months.
d. Where two or more persons plan to commit a certain crime and take part in the
commission of the offence but the distinct offence is committed by them. For instance, A and B
plan to kill C but B backs out of the plan last moment and A executes it alone but B commits the
offence of giving false evidence to the police.
e. Where the offence charged includes offences against property, the person(s) who steal
the articles or property and those who receive the stolen goods knowing it to be stolen can be
charged and tried together.
f. Where two or more persons are accused of any offence or offences which fall under
offences related to stamps and counterfeit coins, they can be charged and tried together.
Effect on Jurisdiction in Joint Trial
The spot of trial for offenses which are triable together comprises of two conditions.

 At the point when an individual submits offenses, to such an extent that he might be
accused of, attempted at one trial for, each such offense as per the arrangements of section 219,
section 220 or section 221.
 At the point when the offence or offences have been submitted by a few people, in a
way that the Court may charge and attempt them together, as per the arrangements of section 223.
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 In both of the conditions, the Court which is equipped to ask and attempt shall do likewise.

3: INVESTIGATION

A Study of the Meaning and Purpose of Investigation Under Cr.P.C,1973.

Introduction
The essential purpose of the Code of Criminal Procedure is to find the culprit or the
mastermind, as we say, behind a crime and ensure that he is brought to justice.

To perform this function, the courts require evidence supporting the case of the prosecution
and if something is found in favour of the accused, it has to be used in favour of the accused. Now,
how do we find this evidence? Who finds this evidence for the court and what is the purpose or
object of this process of finding evidence?

Meaning of Investigation
According to §2 (h) of the Code, investigation means a process conducted for the collection
of evidence in a particular case by the police or any other authorized person. The essential elements
of investigation under this provision are:

 It must be in the form of a process and not merely one act such as recording the
complaint.
 The intention of the investigation should be to collect evidence.
 Investigation can be conducted by police or a private person but not by Magistrate.
In State v. Pareshwar Ghosi, the court observed that etymologically, the term investigation
means any process that involves sifting of materials or search of relevant data for the purpose of
ascertainment of facts in issue in a matter in hand.
The apex court has opined that an investigation, in a practical sense, generally comprises of:
 Proceeding to the scene of the offence,
 Verification and establishment of the facts of the case and the circumstances under
which it took place,
 Sifting of materials to accumulate the evidence related to the commission of the
offence.
 Formation of opinion, i.e. concluding whether, on the basis of the material and
information heaped up, the suspects are the real culprits and if satisfies, prepare the final report for
the Magistrate.

Investigation, Inquiry and Trial

Aiyar’s dictionary defines investigate as “to inquire into the facts or other relevant
circumstances”. In daily life, we often use the terms to investigate and inquire or inquire and trial
synonymously. However, the Criminal Procedure Code makes a clear distinction between the three.
According to §2(h), an investigation is any process conducted with the purpose of collection
of evidence by the police or any person authorized on this behalf. On the contrary, §2(g) defines
‘inquiry’ as every inquiry except trial which is conducted by the Magistrate under the Code.

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 Further, the term ‘trial’ is not defined in the code but it means any proceeding before a judicial
authority with the purpose of determining the guilt of the accused.

Thus, in a nutshell:

Investigation Inquiry Trial

It is conducted by a Judicial
It is conducted by a police Magistrate or court of the session or
officer or a private person but cannot It is conducted only by a any other court or tribunal which is a
be conducted by a Magistrate. Magistrate. judicial authority.

It is always non-judicial in It can be either judicial or

nature non-judicial It is always judicial in nature.

The primary aim is to sift the The primary aim is to take

The primary aim is the veracity and determine the truth of any notice of the evidence and determine
collection of evidence to initiate a trial. crime that is reported. the innocence or guilt of the accused.

Proceedings for maintenance After all, the evidence is

Arrest under §41, recording
FIR, proceeding to the scene of offence
(§154), conducting search & seizure
(§165) are all parts of the
investigation.
of public order and tranquillity or the
inquiry by Magistrate into the cause of
death of a person dying under
suspicious circumstances (§174) are
examples of inquiry.
collected, they are produced before the
court one by one, witnesses are
examined and cross-examined and the
parties present their arguments (§234).
These are part of the trial.

Steps or Purpose in the Investigation Process

There are two essential steps or purpose in the investigation process, viz. “discovery and
arrest of the suspected offender and search of place and seizure of articles relevant to the case”.

 Discovery and Arrest

The first essential step in the investigation is the discovery and arrest of the suspected
offenders. When the information of the commission of an offence is received by the police or
Magistrate, the information may disclose the identity of the suspect or it may be silent on such
identity.

For instance, if a victim reports an offence, s/he may know the offender or at least the
physique of the offender which can be conveyed to the investigating agency. Contrary to this, if a
person comes to home and finds that his house has been broken into. He would not be able to
disclose the information about the suspect.

Now, in either case, the most tiresome chore of the investigating agency is to find the
accused, locate him and arrest him as soon as possible because a trial cannot begin unless a person
is accused of the commission of an offence. The arrest must be made according to the procedure
established under §§41 to 46 of the Code.
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  Search and Seizure
Once the accused or a suspect is arrested, the next most important purpose of an
investigation is to collect evidence which can be used in the courts during the trial to be used in
favour of or against the accused. The Indian Evidence Act, 1872 divides evidence into two kinds,
viz. oral evidence and documentary evidence.

The oral evidence is deduced from the people who are acquainted with the facts of the case.
To determine oral evidence, the investigating agency is required to proceed to the scene of offence
and record the statement of the people which when given in court becomes evidence.

However, for documentary evidence, the investigating agency needs to search the document
and seize it with lawful authority to produce before court. Thus, it is a very significant purpose of an
investigation is to allow the search of documents in possession of anyone and to seize such
documents.

For this purpose, the Code empowers the investigating agencies to search any place from
where the agency has a reasonable belief that an important document might be discovered and to
seize such documents in the case, the authority believes that such document will not be produced by
the person required to produce.

Conclusion
It is thus seen that the “process of investigation characterizes the nature of policing to a great
extent and constitutes as one of the most important occasions” for bringing the police and ‘publics’
into contact. The process is not an indivisible whole but involves many interactional stages
assuming different forms of contact appropriate to each.
Also, to minimize the improprieties in the process of a criminal investigation, “it requires a
holistic approach that studies the issues and problems of police work in its wider organizational and
societal contexts” to formulate meaningful schemes in significantly altering the contemporary
practice of police investigation.

The Meaning Of FIR Under Criminal Procedure Code And Procedure After Recording It

First Information Report or the FIR is the most vital document in any criminal investigation.
It sets the criminal law into motion because it is only after the FIR is recorded, the police commence
its investigation.

Meaning of FIR
The information given by any person to the police of an offence which the police is
empowered to investigate under the Code (Cognizable Offence), is called ‘first information’.
Under Section 154, this information must be reduced to writing and the police officer must make a
note of the receipt of this information in a diary maintained by him every day. This written
information is called the “First Information Report” (FIR).
For common understanding, it is believed that FIR is recorded to set the criminal law into
motion. Precisely, the police cannot investigate unless any information on criminal activity or
conduct is received by it. As soon as the police receive the information, the process of arrest, search
and trial start. Thus, it is said that FIR is needed to set the criminal law into motion.

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 However, in State of Maharashtra v. Ahmed Shaikh Babajan, the apex court observed
that “FIR is not a condition precedent to the setting of criminal law into motion”. It means that the
police can take action even before the FIR is recorded, for e.g., if the police witnesses an offence or
when the information is given on the road to a circle inspector instead of a police station. Another
essential purpose of FIR is to record the information of the offence and the accused before the
memory of the informant fails or before s/he gets time to fabricate or embellish the information.
FIR can be given by any person who has been a victim of the offence or one of the victims
of the offence. Further, it can be given by any person who witnessed the commission of an offence
by eyes or ears or who has knowledge or suspicion of commission of any offence. FIR can be given
by the accused himself. An FIR given by the accused can be either in nature of a confessional
statement and non-confessional statement.

For instance, (i) ‘A’ is accused of the murder of ‘B’. He goes to the police and informs that
he murdered ‘B’ by stabbing him and throwing his body into the river. (ii) ‘A’ murders ‘B’ and
apprehends that he will be caught. To keep himself out of suspicion, ‘A’ informs the police that he
saw an unknown person killing ‘B’.

The first instance is where the FIR given by accused ‘A’ is confessional in nature and the
second one is non-confessional.

Purpose of FIR
The primary objective of recording an FIR is to allow the police officer to investigate.
Further, FIR also forms a part of the final charge sheet prepared by the police under Section
173 and is produced before the court during the trial. FIR is not a substantive piece of evidence and
cannot be relied on by the prosecuting agency for conviction of the accused. FIR is not recorded on
oath and is a mere statement made to the police without any swearing. Further, its veracity is not
tested by cross-examination.
In Dharma Rama Bhagare v. The State of Maharashtra, the court observed that the
purposes of the FIR are as follows:
1. FIR cannot be admissible as evidence before a court of law in a trial.
2. It can be used to discredit the maker of the FIR by contradicting him.
3. It can be used for corroborating any statement made by the maker of the FIR in a court
during the trial.
In certain circumstances, the FIR itself becomes a substantive piece of evidence.
Under Section 32 of the Evidence Act, if the person making the FIR is dead or cannot be found or
if his attendance cannot be procured without unnecessary delay in the trial, the FIR becomes a
substantial piece of evidence. If the FIR mentions the details of the accused, it can be used to
convict him though it cannot be the sole reason to convict him.
Moreover, if the FIR is a part of a transaction which is admissible in court, the FIR becomes
admissible. For instance, ‘A’ lodged an FIR with the police stating that he saw ‘B’ throwing the
body of an old woman into the river and then running towards the railway station. If on an
investigation, the police recover a body of an old woman from the same river and recover the phone
of ‘B’ from the railway station, the FIR given by ‘A’ is admissible as evidence as it forms part of
the transaction.

Procedure after Recording FIR

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 After the FIR recorded, the police are empowered to investigate the case without any written
order or warrant by the Magistrate under Section 156 of the Code. Section 157 lays down the
procedure that has to be followed by the police after the information is received. The provision
provides that when a police officer receives any information with respect to the commission of any
cognizable offence, the police shall send a report to the Magistrate having jurisdiction to try the
offence. The purpose of the report is to keep the Magistrate aware of the action taken by the police.
Further, the report assists the Magistrates to keep a track of the time spent by the police in each
case.
In Om Prakash v. State of New Delhi, the court held that “a police officer, as soon as he
receives information or has reasons to suspect the commission of any cognizable offence, is
required to report the Magistrate who has the jurisdiction to try such cases”.
The Magistrate is empowered to take the cognizance of such offence and order to any
subordinate officer to investigate the spot, facts and circumstances of the case and take necessary
measures for the discovery and the arrest of the accused. Section 157 requires a police officer to
‘forthwith a report’ which signifies that the report has to be sent without any unreasonable delay.
“Delay does not render the case doubtful but would put the Court on guard”.
After the report under Section 157(1) is sent to the Magistrate, the police officer shall
proceed to the scene of offence in person or shall depute a subordinate officer to proceed to the spot
of the incident. The sub-ordinate, however, should not be below the specific rank as required by the
State Government. The officer shall endeavour to scrutinise the facts and circumstances of the facts
and collect evidence from the crime spot.
The police are empowered to take necessary steps for discovering and arresting the suspects
on the basis of the FIR. Moreover, the power of the police officers such as the power to arrest,
search and seize all arise only after the FIR is recorded and the investigation has begun.

Procedure for not recording FIR

Section 157 not only bestows a duty upon the police officers to record the FIR and proceed
with the investigation, but it also gives discretion to them to decide whether the investigation is
necessary or not. Clauses ‘a’ and ‘b’ of Section 157(1) provides for two situations when the officer
receiving any information regarding the commission of an offence, can refuse to investigate.
Firstly, when the information received is about an offence which is not serious in nature and
is more in the nature of a private wrong, the police officer may not proceed with the
investigation. Secondly, when the police officer believes that there are not sufficient grounds for
entering on an investigation, he shall not investigate the case.
Now, these clauses show a very wide discretion in the hands of the police officers.
This prima facie looks threatening and carelessness on the part of the legislators. It is owing to these
clauses that police officers deny to record FIR in every situation. However, the lawmakers tried to
keep an eye on the exercise of this discretion by providing Section 157 (2). The provision makes it
obligatory for the police to record the reasons for not investigating the case even on the receipt of
the information by the police in the report to be sent to the Magistrate.

Evidentiary Value Of FIR, Statements Made to the Police and the Magistrates

Setting the Frame

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 Under Section 157, when a police officer receives any FIR that relates to the commission of
an offence within the area of that police station, the police shall proceed to the crime scene, take
statements from the people who saw the incident, who are related to the victim or who live nearby.
The police, after the first day’s investigation, sends the report to the magistrate who is also
empowered to record the statements of those people whom the police interrogated. Now, here we
see three statements in the picture. The FIR, statements made to police and statements made to the
Magistrate. The question is can these statements be used in the court as evidence of what actually
happened.

Evidentiary Value of FIR

 What is FIR?
The information given by any person to the police of an offence which the police is
empowered to investigate under the Code (Cognizable Offence), is called ‘first information’.
Under Section 154, this information must be reduced to writing and the police officer must make a
note of the receipt of this information in a diary maintained by him every day. This written
information is called the “First Information Report” (FIR)..

 Why is FIR needed?

For common understanding, it is believed that FIR is recorded to set the criminal law into
motion. Precisely, the police cannot investigate unless any information of criminal act or conduct is
received by it. As soon as the police receive the information, the process of arrest, search and trial
start. Thus, it is said that FIR is needed to set the criminal law into motion.

However, in State of Maharashtra v. Ahmed Shaikh Babajan, the apex court observed
that “FIR is not a condition precedent to the setting of criminal law into motion”. It means that the
police can take action even before the FIR is recorded, for e.g., if the police witnesses an offence or
when the information is given on the road to a circle inspector instead of a police station. Another
essential purpose of FIR is to record the information of the offence and the accused before the
memory of the informant fails or before s/he gets time to fabricate or embellish the information.

 Who can give FIR?

FIR can be given by any person who has been a victim of the offence or one of the victims
of the offence. Further, it can be given by any person who witnessed the commission of an offence
by eyes or ears or who has knowledge or suspicion of commission of any offence.

 What is the Evidentiary Value of FIR?

In a nutshell, it can be said that FIR is not a substantive piece of evidence and cannot be
relied on by the prosecuting agency for conviction of the accused. FIR is not recorded on oath and is
a mere statement made to the police without any swearing. Further, its veracity is not tested by
cross-examination.

The evidentiary value of FIR was discussed in detail in Dharma Rama Bhagare v. The
State of Maharashtra. The observations of the court can be summarised as follows:
1. FIR cannot be admissible as evidence before a court of law in a trial.
2. It can be used only to discredit the maker of the FIR by contradicting him.
3. It can be used for corroborating any statement made by the maker of the FIR in a court
during the trial.

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 FIR can be given by the accused himself. An FIR given by the accused can be either in
nature of a confessional statement and non-confessional statement.

For instance, (i) ‘A’ is accused of the murder of ‘B’. He goes to the police and informs that
he murdered ‘B’ by stabbing him and throwing his body into the river. (ii) ‘A’ murders ‘B’ and
apprehends that he will be caught. To keep himself out of suspicion, ‘A’ informs the police that he
saw an unknown person killing ‘B’.

The first instance is where the FIR given by accused ‘A’ is confessional in nature and the
second one is non-confessional. If a statement is confessional in nature, it cannot be used in the
court as evidence under Section 25 of the Indian Evidence Act, 1872. The landmark case for
considering the evidentiary value of FIR given by an accused is Aghnoo Nagesia v. the State of
Bihar. The court, in this case, held that:
1. FIR given by accused is categorically inadmissible as evidence.
2. If the FIR given by the accused is non-confessional in nature, it can still be admitted
by the maker of the FIR in the court. However, unless specifically admitted, the FIR of the accused
cannot be used against him.
3. If it is confessional in nature and will expose the accused to criminal charges, it will
become inadmissible except as provided under Section 27 of the Evidence Act. Section 27 allows
the confessional statement of the accused to be used for further investigation for discovery if new
and relevant facts and if any fact is discovered, it can be used in court.
4. If an FIR is partly confessional and partly non-confessional, it is entirely inadmissible
in court. However, if the no-confessional part is absolutely exclusive of the confessional part, it can
be a relevant fact under Section 18 of the Evidence Act and if admitted by the maker under Section
21, can be admissible as evidence.
In certain circumstances, the FIR itself becomes a substantive piece of evidence.
Under Section 32 of the Evidence Act, if the person making the FIR is dead or cannot be found or
if his attendance cannot be procured without unnecessary delay in the trial, the FIR becomes a
substantial piece of evidence. If the FIR mentions the details of the accused, it can be used to
convict him though it cannot be the sole reason to convict him. Moreover, if the FIR is a part of a
transaction which is admissible in court, the FIR becomes admissible.

Evidentiary Value of Statements made to Police

 What is Police Statement?

Section 161 of the Code titled “Examination of Witness by Police” empowers the police
officers to record any statement of any person who is acquainted with the facts of the case. The
examination means oral examination and refers to such statements and these statements are
specifically recorded by those officers who are investigating the case.
 Why is the Statement Needed?
The purpose of the Statement is to provide evidence and lead the investigation finally
reaching to a conclusion. When an offence is committed, many people may have witnessed the
crime, many people know why it might have been committed and many people may know where
the offender is. The statements of all these people are necessary to know the intention and motive
behind the crime and the recovering of the accused.

 What is the evidentiary value of such statements?

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 Precisely, any statement made to a police officer is never admissible in court as evidence. It
is not hidden that the condition of the police in the country is not very good and oftentimes,
maximum statements are given after 1st degree or 2nd-degree torture. In such circumstances, people
tend to nod to whatever the police ask them to do to avoid pain. Thus, making such statements
admissible will defeat the purpose of criminal law, i.e. justice. Hence, such statements are
inadmissible in court as evidence.
Section 162 of the Code provides that any statement recorded by the police under Section
161 shall not be signed by the maker of the statement and it shall not be admissible as evidence
before the court during any trial. The law specifically requires that the statements should not be
signed so that it cannot be proved that it was given by that specific person.
The law requires that whatever a person has to state, it must be stated before the court and
during the trial. Thus, the purpose of Section 161 Statement is not to establish witnesses against the
accused but to assist the police in the investigation.

In Baleshwar Rai v. State of Bihar, the court held that to apply the provisions of Section
162, the Statement must be made “during the investigation” and not “during the period of
investigation”. For instance, A was murdered by B and police while investigating asked A’s friend
C if A had any enemies who can kill him.
The statement made by C to the police is under Section 161 and cannot be proved in court.
On the contrary, imagine A was murdered by B and the police are investigating the case. During the
period of investigation, the police received a letter written by A’s close friend C that he saw B
killing A but he is scared to come out. This statement, though made to police is not during an
investigation but during the period of investigation. It can be proved in court.

Now, it has been settled that statements made under Section 161 Cr.P.C are inadmissible as
evidence in court. However, the proviso to section 162 (1) states that if a witness is brought from
the side of Prosecution (i.e. victim or State) before the court to testify, s/he can be
contradicted using such statements provided s/he is shown the statement. Moreover, if there is a
statement of a defence witness recorded by police in its day to day diary, it can also be used to
contradict the defence witness under Section 145 and 161 of the Indian Evidence Act, 1872.

Evidentiary Value of Statements made to Magistrates

Section 164 of the Code empowers the Judicial Magistrate or Metropolitan Magistrate to
record the statements of any witness or accused whether confessional or non-confessional. First of
all, it is a common misunderstanding that Section 164 provides for recording of confession of the
accused. Nevertheless, the provision accredits the Magistrate to record both confessional and non-
confessional statements of the accused and also the Statements of the witnesses if it is required to be
made before the Magistrate.

 What is a Confession?
The classic case to define confession is Pakala Narayan Swami v. Emperor. In this case,
His Lordship (as he was then) Lord Atkins spoke for the Privy Council and observed that “A
confession must either admit in terms the offence or at any rate substantially all the facts which
constitute the offence.
An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not
in itself a confession, for example, an admission that the accused is the owner of and was in recent
possession of the knife or revolver which caused death with no explanation of any other man’s

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 possession” . The case is still relied upon by the Indian courts to determine whether a statement
amounts to a confession or not.
 Inculpatory and Exculpatory Confession
The statement of the accused where the accused person directly admits his guilt is known as
an inculpatory confession. Exculpatory confession, on the contrary, is that confession which
absolves the accused from his liability. For instance, where the accused accepts being part of the
offence but claims that it was committed completely by the co-accused, it is exculpatory.

 Evidentiary Value of Section 164 Statement

A statement recorded by the Judicial or Metropolitan Magistrate according to the procedure
laid down in Section 164 is admissible in the court as evidence and can also form the sole basis for
conviction. In Parmananda v. State of Assam, the court held that endeavour of the court should be
to apply its mind to the question whether the accused was free from threat, duress or inducement at
the time of making the confession. If the statement was made voluntarily, there is no bar against its
admission.
A statement is not necessary to be made to any other person to be called a confession.
In Sahoo v. State of UP, the accused who was charged with the murder of his daughter in law with
whom he was always quarrelling was seen on the day of murder going out of the home, saying
words to the effect “I have finished her and with her the daily quarrels”. The statement was held to
be a confession relevant in evidence, for “it is not necessary for the relevancy of a confession that it
should be communicated to some other person”.

Analysis of the Meaning and Power to Record Confessions by the Magistrate

A confession can only be recorded by a Judicial Magistrate or a Metropolitan Magistrate.

Introduction
The Code of Criminal Procedure, 1973 contains four essential provisions that deal with
confession before a Judicial or Metropolitan Magistrate. Section 163 mandates that the accused
person or the confessing person must not be induced or threatened to confess the offence even if
evidence shows that he is the offender.

Section 164 of the Code lays down the procedure to be followed whenever a confession is
being made and its evidentiary value in a court of law. Section 281 lays down the manner in which
a confessional statement is to be recorded and lastly, Section 463 deals with the effect of procedural
irregularity on the admissibility of a confession.
The primary purpose of Section 164 CrPC is to give a technique for examination of a person
who confesses his guilt before a Magistrate.

Under Section 25 of the Indian Evidence Act, 1872, any confessional statement made to an
Investigating Officer is forbidden in proof, and subsequently, when the accused person(s) confesses
during the Police investigation, the Police as soon as possible get it recorded by a Magistrate under
Section 164, Criminal Procedure Code, and it would then be able to be utilized to the degree to
which it might be permissible under the Indian Evidence Act as evidence in a court of law and put
forth against the accused.

Evidentiary Value of Judicial Confession

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 Under Section 80 of the Indian Evidence Act, a Court will undoubtedly assume that an
averment or confession of a blamed individual, taken as per law and indicating to be marked by any
Judge or Magistrate, is real and that the authentication or note with regards to the conditions under
which it was taken implying to be made by the individual marking it is valid, and that such
articulation or confession was properly taken.

The words “taken in accordance with law” appearing in Section 80 are significant and it
signifies that while recording the confession, the sine qua non for recording a confession under
Section 164 CrPC must be cautiously pursued.
The evidentiary value of a confession relies on its voluntary character and the exactness with
which it is replicated. If the confession is made voluntarily in sound mental condition and if it is
accurate, consequently, the provision shall shield the confession from being retracted by the
accused.

These shields are vital, as confessions are regularly withdrawn at a later stage and it
becomes momentous for the Court to learn whether the alleged confession was really and
intentionally made.
The fact that a confession is withdrawn at a later stage before the court does not render the
confessional statements inadmissible in court. However, the Court needs to investigate any such
confession with the most suspicious and vigilant mind and acknowledge it with the best alert. It is a
settled rule of evidence that if the prosecutor desires to rely on a retracted confession and wants the
judge to admit it as admissible, the confession must be substantiated by several other pieces of
evidence.

In Muthuswami v. State of Madras, the apex court observed that a confession ought not to
be acknowledged just in light of the fact that it contains an abundance of detail which couldn’t have
been created. The court should look into details such as whether the confession was made
voluntarily and if there is any discovery or any lead in the investigation through the confession.

Salient Features of Section 164

Section 164 of the Code is one of the most significant provisions of CrPC. It describes the
entire procedure and circumstances in which a confession must be recorded. The section has been
amended with the passage of time to cope with the developments. The essential features of this
provision are:
1. Proclamations or confessions made throughout an investigation can be recorded
distinctly by a Magistrate of the First Class or a Magistrate of the Second Class who has been
distinctly engaged by the State Government.
2. Confessions must be recorded and signed in the way provided under Section 281.
3. Before recording any such confession, the Magistrate will disclose to the individual
making it that he will voluntarily make a confession and that in the event that he does so it might be
utilized in proof against him.
4. No Magistrate will record any such confession, except if after scrutinizing the
individual making it he has sufficient reasons to accept that it was made intentionally and with
complete free will. Inability to address the voluntary nature of a confession has been held to vitiate
the confession.
5. The Magistrate shall lay out a memorandum mentioning that the confession was made
voluntarily without any inducement or threat and that all requirements of the law were duly

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 conformed to. The memorandum in Section 164(3) must be annexed at the foot of the record of the
confession.
6. It isn’t fundamental that the Magistrate accepting or recording a confession or
proclamation ought to be a Magistrate having jurisdiction for the situation. Any Magistrate can
record the confession for the sake of justice and later transfer it to the competent Magistrate for
further proceedings.

Guidelines for Recording Confession under Section 164

A denounced individual who has made confession before a Magistrate ought to be sent to
the judicial custody and not made over to the Police after the confession has been recorded. On the
off chance that the Police, in this way, requires the blamed individual for the investigation, a written
application ought to be made giving reasons in detail why he is required, and a request begot from
the Magistrate for his conveyance to them for the particular purposes named in the application.

If the accused person willing to make a confession, who has been produced before a
Magistrate for the reasons for making a confession, has declined to make a confession or has
created an impression which is inadmissible from the perspective of the indictment, he ought not to
be remanded to Police custody.
When the accused who has made a confession has been kept under the judicial custody, the
Magistrate shall record a request for him to be kept separate from different detainees to the extent
might be practicable. Section 313 of the Code empowers the Court to examine the accused person at
any stage during the trial to allow him to explain all the facts and circumstances in which the
offence was committed by him and/or under what circumstances he opted to confess to his crime.

So as to guarantee that a confession under Section 164 of the Code of Criminal Procedure is
made wilfully, the accompanying safety measures ought to be taken. The judiciary has evolved
several rules that need to be followed to allow a confession to be recorded and to indicate the
authenticity of such confession.

One such measure requires that the person willing to confess is kept away from the custody
of the police officers for some time to allow him to confess deliberately and without any pressure
whatsoever.

After the confession is recorded, the Magistrate should not submit the report of the
confession to the police officer investigating the case but should directly send it to the competent
Magistrate. This is to ensure that the confession is not mishandled or tampered by the corrupt
officials. However, there can be situations when the police officers might need the confession for
the purpose of investigation and to get a lead in the case.
Moreover, there are situations when the confession of the accused can be used to interrogate
the co-accused to induce him to speak the truth. In such circumstances, the Magistrate may allow
the officers to take a duplicate of the confession by making a copy of it which can be used by the
police while the original shall be sent to the competent court by the Magistrate.

Manner of Recording Confession

Section 281 of the CrPC gives the manner in which the examination of a blamed individual
is recorded. The section and its provision apply mutatis mutandis to recording confessions also. The
inquiries put to the denounced and the appropriate responses were given by him ought to be

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 unmistakably and precisely recorded, yet the blamed must bind himself to significant responses to
the inquiries posed by the Court.
Section 281 of the Code does not keep a Court from declining to record insignificant
responses to questions put by it to the blamed under Section 313 of the Code. On the off chance that
it seems vital, the Court may even avert the denounced making long insignificant answers.
The assessment of the denounced ought to be recorded in the language in which he is
analyzed, and if that isn’t practicable in the language of the Court or in English. In cases in which
assessment isn’t recorded by the Magistrate or Judge himself, he should record an update, thereof in
the language of the Court or in English on the off chance that he is adequately familiar with the last
language.

The assessment must be perused to the charged and made comparable to what he
pronounces to be a reality. The Magistrate or Judge should then ensure under his very own hand
that the assessment was brought down in his essence and hearing and that the record contains a full
and genuine record of what was expressed.

Effect of Non-adherence of Procedure

It was held that “where statements were recorded indicating all necessary precautions
prescribed for recording the confessional statement, it was held that confession does not suffer from
procedural infirmity”. However, there are circumstances where the procedure or the guidelines
under Section 164 is not conformed to.
For such situations, the CrPC provides Section 463 which states that a confession will not
become invalid if there is certain procedural irregularity.

The provision is restricted to the failure of the Magistrate to prepare a memorandum of

voluntariness of the confession required under Section 164(4). However, if it is shown that the
memorandum was intentionally omitted because the confession was obtained by fraud or
inducement, it amounts to procedural illegality and no irregularity. In such cases, the provision
ceases to apply.

Procedure under Cr.P.C to be Followed After Completion of Investigation

Criminal Law is set to motion with the registration of an FIR before the police after which
the police initiates the procedure of investigation.

Introduction
Article 21 of the Constitution ensures the fundamental right to life and individual freedom.

In Anbaizhagan’s case, the apex court saw that if the criminal trial isn’t fair, reasonable and
not free from inclination, the legal decency and the criminal equity framework would be in
question, shaking the certainty of the society in the judicial system and burden would be the
standard of law.
Trial ought to be reasonable for all concerned and ‘disavowal of the reasonable trial is as a
lot of treachery to the charged as is to the person affected, i.e. the victim and the general public’.
Investigation Resulting in No Evidence
The privilege to reasonable trial incorporates ‘Reasonable Investigation’. Fair trial and
reasonable investigation are pre-requisites to get equity which the society demands according to
law, and one without the other cannot provide reasonable equity.
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 Any situation that relates to any commission of the offence is subjected to reasonable
investigation and subsequently, trial and for that purpose, if required, the case can be endowed to
special investigating organizations such as the Crime Investigation Department or the Central
Bureau of Investigation.

The examining specialists have been enabled to present a report to the judge that there is no
proof or sensible grounds or doubt to legitimize the sending of the denounced to the Magistrate and
to discharge the blamed from the authority on his executing a security with or without surety, as the
cop direct, to show up, if and when so required, before a Magistrate engaged to take insight of the
offence on a police report and to attempt the charged or submit for trial.
The 41st report of the Indian Law Commission prescribed that a charged individual must get
a reasonable trial as per the standards of regular equity, endeavours must be made to stay away from
delay in examination and trial and the methodology should target guaranteeing reasonable
arrangement to the more unfortunate areas of the general public.

Submission of Closure Report

The report under Sec 169 CrPC is alluded to as a ‘closure report’. The Magistrate, be that as
it may, can guide the police to make a further examination. The extent of the ability to coordinate
further examination when the police report expresses that there is no proof to continue further, and
truly there is no proof for the situation by any stretch of the imagination, regardless of whether it
would be a request which can be legitimized or held substantial needs assessment.

For a situation where the Director-General of Anti-Corruption Bureau gave a request and a
report under Sec 169 Cr Pc and it was a ‘speaking order’ containing reasons that there is definitely
no proof to indict the denounced, the bearing has given by the Magistrate when the case itself
doesn’t contain any proof to continue further, the course of the court must be seen as awful in law.
This view discovers bolster when there is a finding by Lokayukta that there is no material
against the denounced. As the peak court decided that a reference is made to the examining official
or the courts to Section 169 Cr Pc, the equivalent must be perused as a kind of perspective to Sec
173 CrPC.

Cognizance by the Court

The intensity of the court to take cognizance of a case, it is to inspect whether there is
adequate ground for taking judicial notice of the offence so as to start further procedures. The
Supreme Court inspected this issue in Chief Enforcement Officer’s case and expressed that the
articulation ‘cognizance’ has not been explained or defined in the code.
However, the word ‘cognizance’ is of uncertain import. It has no exclusive or spiritualist
hugeness in criminal law. It just signifies ‘become mindful of’ and when utilized concerning a court
or a Judge, it implies ‘to pay heed to judicially’. It demonstrates the moment that a court or a
Magistrate takes legal notice of an offence with the end goal of starting procedures in regard of such
offences said to have been submitted by somebody.

It was additionally clarified in this way:

1. Taking awareness doesn’t include any proper activity of any sort;

2. It happens when the Magistrate applies his brain to the associated commission with an
offence;
3. It is preceding the initiation of criminal procedures;
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 4. It is an imperative essential for holding a substantial trial;
5. Cognizance is taken of an offence and not a wrongdoer;
6. Whether the Magistrate has taken comprehension of an offence or not relies upon the
realities and conditions of each case, as no widespread application rule can be set down;
7. Under Sec 190 of CrPC, it is the use of the Judicial personality to the averments in the
protests that establishes ‘insight’;
8. The Magistrate needs to think about whether there is adequate ground for continuing
further and not an adequate ground for conviction, as the adequate ground for a conviction can be
viewed as just at the trial;
9. If there is adequate ground for procedures, at that point the Magistrate can give the
procedure under Sec 204 CrPC. The Magistrate has the undoubted carefulness, to be judicially
practised in deciding if there is a prima-facie case to take discernment;
10. Despite a report of the police that no case is made out, the Magistrate can dismiss the
report and take comprehension and arrange further examination under Sec 173 (8) CrPC.

Object to Taking Cognizance

The primary purpose of objective for taking cognizance by a court is to begin procedures
against the charged. At this phase of awareness, the court is worried about the inclusion of the
individual and not of his guiltlessness. When there is no material to continue, there is no reason for
taking perception and continuing further. The indictment becomes useless exercise when the
materials accessible don’t show an offence is submitted. In such circumstances, the apex court
observed thus:
1. Calling of a charged in a criminal case is a genuine issue. Criminal law can’t be gotten
underway as is normally done;
2. The procedure of criminal court will not be allowed to be utilized as a weapon of
badgering. When it is discovered that there is no material on record to interface a denounced with
the wrongdoing, there is no importance in indicting him. It would be a sheer misuse of open time
and cash to allow such procedures to proceed against such an individual;
3. Baseless and undeserved arraignment is an encroachment of the assurance under Art
21 of the Constitution; and
4. No court can give a positive heading to a power to give endorse for arraignment, when
there is a police report that no case is made out to indict, except if the court finds generally.
Criminal law ought not to be utilized for vexatious arraignment. On the off chance that where assent
is required to arraign, for example, for offences under the Prevention of Corruption Act and so on.

Conclusion
In this way, the reasonable examination necessitates that the police ought to completely look
at the whole proof to see if any prima-facie case is made out against the denounced. In the event
that no case is made out, there ought to be a closure report under Section 169 of the Criminal
Procedure Code which will be viewed as a final report submitted under Sec 173 CrPC.

It is again the obligation of the Magistrate to see if there is any material on record to
continue against the blamed. On the off chance that there is no material to continue further, there is
no reason for taking perception. As such, the reasonable examination and trials need the assurance
of a blamed from undesirable and vexatious arraignments to maintain a strategic distance from
provocation to people concerned.

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 Provision Related to Enquiry and Investigation of Cases of Unnatural Death

Whenever there is a death of a person in abnormal circumstances, the situation calls for
police intervention. This may include murder, suicide, accidental death etc.

Introduction
Section 174 of the Code of Criminal Procedure is the provision of law in the criminal
jurisprudence that manages the procedure that the police and the judge need to follow in instances
of suicide or other such situations resulting in unnatural deaths.

At the point when an individual does not die because of the natural conditions of ageing or
sickness, an individual is viewed as a victim of unnatural death. Some of the unnatural deaths are
unintentional death, murders, death caused by a wild beast, difficulties of medical procedure,
suicide and so on.

Suicide can be characterized as purposeful murdering or causing one’s very own death.
Suicide is not admissible under Indian Law and thus, Section 309 of Indian Penal Code sets out the
sanction if any individual endeavours to submit suicide.

In the event that an individual endeavours suicide, at that point he will be detained for a term
of one year or punished with the imposition of fine according to the court’s decision or both. There
have been a few endeavours to expel Section 309 of the IPC yet the endeavours appeared to have
fizzled. Presently with the enactment of the Mental Healthcare Act, 2017, attempt to commit
suicide is never again wrongdoing in India.

Unnatural Death under CrPC

On the off chance that an individual kick the bucket, i.e. dies normally, at that point there
lies no doubt in order to the demise of the individual. Be that as it may, if there should be an
occurrence of an unnatural demise and the death is caused because of conditions which should be
clarified and analyzed by the authority of law, there lies a commitment on the state to verify the
wellbeing and life of each resident of the nation.

On the off chance that any crime is carried out, it is against the state. In the event that an
individual bites the dust or dies because of unnatural conditions, the state is obliged to recognize the
reason for death and if there lies a doubt with regards to the reason for death, the state must find a
way to rebuff the accused.

Conducting Inquest and Inquest Report

The Executive Magistrate upon the implication by the Station House Officer or some other
Police Officer specially engaged by the State Government will set up an inquest report which will
contain the moment insights about the reason for the death of an individual.

Inquest report, as propounded under Section 174, is set up by District Magistrate, Additional
District Magistrate, Sub-divisional Magistrate, or Mandal Executive Magistrate particularly enabled
for this sake by the State Government when there are circumstances of deaths in the places within
their jurisdiction and if such deaths are unexpected and unexplained.

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 Section 174 of the Code comprises all kinds of death which cannot be explained or deemed
to be unnatural. For the purpose of this provision, natural death means when a person ages to his
death and dies due to age or if a person suffers from a medical condition which is sufficient or likely
to cause the death of a person and the person dies due to such suffering. Thus, any death caused by
a reason other than disease or old age is unnatural. In general, the provision comprises four kinds of
deaths:

1. Suicide,
2. Murder,
3. Assault by a beast,
4. Demise due to factory accidents (failure of a machine, etc.),
Or on the other hand, passing under conditions raising sensible doubt that some other
individual has committed an offence.

For setting up the report, the judge will examine the reason for death. In the report, the
justice must portray the obvious reasons for death where he will depict the slightest subtleties that
he discovers on the dead body. A portion of the subtleties that the officer must depict are:

1. Nature of encompassing where the dead body is found.

2. Any injuries, cracks, wounds, and different imprints that might be found on the body.
The officer must express the way wherein any twisted or damage or some other imprint happened to
be on the body, regardless of whether the imprint is by birth, or generally, that caused the demise of
the individual.
3. The imprints whenever brought about by any weapon or an instrument.
On account of Kuldeep Singh v. State of Punjab, the High Court has held that the
substance of the inquest report can’t be treated as a proof, however, they can be investigated to test
the veracity of a witness.

Responsibilities of the Executive Magistrate

Section 174 sets out the obligations that a judge must do upon intimation by the police
officer in charge of the instances of unnatural death. The officer will undoubtedly inform the closest
Magistrate who is enabled to hold investigations under the CrPC or any other relevant law when he
gets data with respect to the unnatural demise of an individual. After the Magistrate receives such
information, he is bound to perform the following duties:

 The principal obligation of a Magistrate is to decide the reason for unnatural passing
away of the individual concerned. The judge will look at the body and upon examination, analyze
and explain the circumstances in which the person died and any cause of death identified by
examination of the dead body.
 Since Section 174 is constrained in its extension, along these lines it is confined to the
suspicious conditions that caused the unnatural death of an individual and the officer has no degree
of control or authority under this provision to apprehend the individual who has so caused the
demise. In the recent judgment of the apex court, Radha Mohan Singh v. State of Uttar Pradesh,
the Supreme Court held that Section 174 is restricted to the ascertainment of the clear reason for
death.

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 The officer is in this manner bound by the restricted extent of Section 174 and doesn’t need
to keep an eye on the individual who has allegedly caused the death or figure out who attacked the
dead individual or in what way or under what conditions, and so on.
 In the event that no injustice is found in the demise of the individual, the dead body
must be given over to the lawful heirs of the expired person.
 In situations where there is suspicion or ambiguity regarding the death of the deceased
person, at that point, the dead body must be sent to the Government Medical Officer for post-
mortem analysis after death.
 The judge need not look at all the witnesses or observers present at the scene of
offence while performing the examination to find a reason for the unnatural death. On account
of Shakila Khader v. Nausher Gama, the apex court held that to set up the inquest report, there
need not be an assessment of the considerable number of observers as the reason for the
examination is just to ascertain the reason for the death. If the Magistrate fails to mention anyone’s
name in the inquest report, it doesn’t prompt the presumption that the officer failed in the efficient
exercise of his duties.

 The report must be set up by the officer in a recommended organization. In any case,
if a report is no readied in a specified manner, the report can’t be proclaimed as admissible.
 The Magistrate must conduct the inquest in the presence of two independent residents
or inhabitants of the area in the vicinity of which the offence had taken place. These people are
called the panchas and because of which the report prepared by the Magistrate and signed by
these panchas are sometimes called panchnama. In case no panchas are available or willing to assist
the Magistrate, the police officer or any other member of other locality can be requested as well.
 On the accomplishment of the inquest report, it is the duty of the Magistrate to inform
the investigating officer or the police official who informed him of the incident about the report and
get the report marked and signed by him. Further, as aforementioned, the report shall also be
verified and signed by different people too who were a part of the examination such as
the panchas who testified as to the accuracy of the inquest. The report must be then sent to the
District Magistrate or the Sub-divisional Magistrate.

Cases of Unnatural Dowry Deaths

In the year 1983, there were countless cases announced of deaths caused in view of the
never-ending avaricious demand for dowry by the husband’s family from the wife after marriage.
Lady who could not pay the interest after marriage was either fiercely treated or they were killed.
So as to control the provocative circumstance of demise owing to dowry claims, the Parliament
embedded Section 304-B in the Indian Penal Code by the Dowry Prohibition (Amendment) Act,
1986.
Section 304-B of IPC says that if the death of a married woman is brought about by such
substantial damage or generally than under ordinary conditions or in the event that she is exposed to
cruel and harsh treatment or badgering for request of dowry and if such demise or demonstration of
cruelty is caused within a time frame of seven years from the day of marriage, at that point, the
spouse and/or his relative will be regarded to have caused her demise.

The parliamentarians additionally embedded Section 498-A in the Indian Penal Code by
the Criminal Law Amendment Act, 1983 (Act 46 of 1983), which punishes brutality by spouse or
his relative on a lady for any unlawful demand for dowry or any property or important security or is

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 by virtue of disappointment by her or any individual identified with her to satisfy such need, which
constrains her to perpetrate suicide or cause grave damage or threat to her life.
The Act additionally embedded clause 3 to Section 174 in the Code of Criminal Procedure,
1973 to control the expanding occurrences of dowry demises.
This sub-section asserts that if the demise of a married woman is caused within a period of
seven years of marriage and if there is any sensible doubt over the demise of the lady that an
offence has been committed under Section 304-B and 498-A of the IPC in such manner, the police
officer should send the body for post-mortem analysis by the closest medical officer, over the
solicitation made by any relative of the deceased woman.

Clause (3) also empowers the police officer to use the power in the opposite sense. It means
that if after the due investigation, the police officer is of the opinion that the case was not of dowry
death and/or there was no cruel treatment on the deceased, the officer may reject the presumption of
dowry death and release any person arrested in that connection.

4: ARREST, SEARCH AND SEIZURE

Concept of Arrest

Introduction
the Concept of Arrest Under The Code Of Criminal Procedure, 1973. Arrest means “the
deprivation of a person of his liberty by a legal authority or at least by apparent legal authority”. For
instance, when a police officer apprehends a pick-pocket, he is arresting the pick-pocket, but when a
robber apprehends a person with a view to extracting ransom, he is not arresting the person but,
illegally confining him.
Moreover, it has to be noted that “every compulsion or physical restraint is not arrested but
when the restraint is total and deprivation of liberty is complete, it amounts to arrest”.

In India, the Criminal Law reckons that every accused is entitled to a fair trial which shall be
conducted in the presence of the accused. Further, under Section 235 of the Code, if the accused is
found guilty of the offence charged with, the court should hear the accused on sentence and then
determine it. Thus, ensuring the presence of the accused during trial and judgment is the primary
reason for the arrest.

History of Arrest
An arrest is an anachronism and the concept of arrest has existed throughout time and space.
In England, during the 18th century, the concept of police officers did not exist. In 1749, Magistrate
Henry Fielding appointed six men to conduct arrest, search and seizure on his authority to effectuate
criminal trials and provide assistance to the Magistrates. These men were the “first professional
police service of England and came to be known as the Bow Street Runners”.

Arrest by Private Persons

Prior to the establishment of the Bow Street Runners, the procedures of arrest were “in the
hands of private persons and individuals with minute intervention from the State”. Since the arrest

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 and detention and production of arrested persons rested entirely in the hands of private entities,
malicious arrests and corruption gained momentum.
Therefore, to curb this menace, Judge Fielding decided to regulate their activities by
legalising it through a proper authorised channel. Thus, the Bow Street Runners were created.

The Bow Street Runners

The Bow Street Runners were initially a group of six men (later increased) who “worked out
of Judge Fielding’s Office and Court No. 4 at Bow Street, London”. Their work was not to patrol
and ensure prevention of crime like modern police officers. They served writs issued by the court on
its behalf and arrested alleged offenders on the authority of the court.
After the successful implementation of the Bow Street Runners, Judge Richard Ford of the
same court introduced the Bow Street Horse Patrol in 1763. Ford acquired a grant of 600 Euros
from the government to establish the Horse Patrol force to deal, specifically with highway
robberies.

Metropolitan Police Act, 1829

In 1829, the British Parliament enacted “the Metropolitan Police Act to establish the first
official police force of London called the ‘Bobbies’ or ‘Peelers’ (after Sir Robert Peel who
introduced the Act)”. By 1839, the police force completely replaced the Bow Street Runners and
Horse Patrols. These police officers worked under the supervision of two Commissioners who were
the Justices of Peace.
Section 8 of the Act empowered the police officers to arrest “all loose, idle and disorderly
Persons whom he shall find disturbing the public Peace, or whom he shall have just Cause to
suspect of any evil Designs and all Persons whom he shall find between sunset and the Hour of
Eight in the Forenoon lying in any Highway, Yard, or other Place, or loitering therein, and not
giving a satisfactory account of themselves”. The Act also provided for night police and removed
the services provided by Parish watchmen.

Modern Concept of Arrest

The power to arrest is now vested upon designated police officials under the employment of
the State through several legislations. In the United States, the offences are divided into Minor
Crimes or infractions and Serious Crimes or felonies. In case of minor crimes, the offender is served
with a citation to appear before the court and no arrest takes place. The arrest is allowed only for
felonies and the person is kept in a pre-trial prison under the surveillance of the police.

Further, in the United States, there is a clear difference between detention which is an
informal interrogation or investigatory stop and arrest.

In the United Kingdom, the main legislation dealing with arrest powers and procedures is
the Police and Criminal Evidence Act, 1984. An arrest is divided into ‘arrest with a warrant’ and
‘arrest without warrant’ and the Act provides situations when an arrest can be made without a
warrant and when a warrant is vital to effect the arrest.

Concept of Arrest under Cr.P.C

 Meaning and Elements
In R.R. Chari v. State of Uttar Pradesh, the apex court defined arrest as “the act of being
taken into custody to be formally charged with a crime” . The court observed that in a
Constitutional sense, it means the seizure of a person (body of a person).
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 In State of Punjab v. Ajaib Singh, the court observed that arrest is the “physical restraint
put upon an abducted person in the process of recovering and taking that person into legal custody
with or without any allegation or accusation of any actual or suspected commission of the offence” .
The elements necessary to constitute arrest were summarised by the Madras High Court
in Roshan Beevi v. Joint Secy. To the Govt. of Tamil Nadu. The vital elements required to
institute arrest are:
1. “There must be an intent to arrest under legal authority,
2. There must be seizure or detention of the person,
3. The person must be in the lawful custody of the arresting person and
4. The act of arrest must include the actual confining of the person and not mere oral
declaration of arrest” .

Purpose
The code contemplates arrest of an alleged offender under five circumstances:

1. “For securing the attendance of the accused at trial

2. For prevention of an apprehended offence or as a precautionary measure.
3. For obtaining the correct name and address of the person arrested.
4. For removing obstruction created to police.
5. For retaking a person escaped from custody”.
These circumstances are not restricted only to the Code of Criminal Procedure, but the
purpose of arrest remains the same under every law. Also, it can be noticed that the Code allows
arrest on the apprehension of a cognizable offence as well. In Rajesh Raut v. State of
Maharashtra, for instance, it was held that where an arrestee has a design (preparation) to commit
a cognizable offence affecting the peace and order in that place, his detention for certain days
ordered by the Magistrate would be proper and justified.

Misuse of the Power of Arrest

Arrest, as averred earlier, is a restriction on the “right to personal liberty”. Therefore, any
violation of this right “must be by a procedure established by law which shall be fair and
reasonable”. In Kajal Dey v. the State of Assam, the court said that “what is fair and reasonable
shall depend upon the circumstances of the case” .
Despite all the laid procedures and guidelines, misuse of the power of arrest and custodial
violence is not novel in India. In People’s Union for Democratic Rights v. Police Commissioner,
Delhi, the police officers arrested some poor people from the village and compelled them to do
certain work at the police station. On asking for wages, these people were stripped and beaten up.
Further, in Prem Shankar Shukla v. Delhi Administration, the petitioner moved the Supreme
Court contending that he and certain other prisoners were forced to wear handcuffs during custody.
The frequent instances of police atrocities and custodial deaths prompted the apex court to
pass judgments such as Nilabati Behera, Joginder Kumar and Shyam Sunder Trivedi which
were later reviewed in D.K. Basu v. State of West Bengal. From these judgments, the court
enabled departmental enquiry against offending police officers, the establishment of committees to
probe into matters of illegal arrest and detention and also allowed compensatory damages to the
victim or his family from the personal income of the accused officers. However, these landmark
judgments only serve as a precedent to decide future cases of similar nature but very less or
negligible effect on the behaviour of the police has been seen.

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 Recently, in Ratilala Raghavjibhai v. State of Gujarat, police has come to the
complainant’s house and said that her husband was involved in a theft incident and since he was not
home they arrested her son and told her to inform her husband if he returns and only then will her
son be allowed to go. These instances of meaningless misuse of power shake the entire concept of
the arrest.

Conclusion
In a free society like ours, “law is quite zealous of the personal liberty of every individual
and does not tolerate the detention of any person without legal sanction”. The right of personal
liberty is a basic human right recognised by the General Assembly of the United Nations in its
Universal Declaration of Human Rights. This has also been prominently included in the Convention
on the Civil and Political Rights to which India is now a party.
Even the Indian Constitution recognises the right to personal liberty under Article 21 and
also provides that it can be violated only by a fair and reasonable procedure established by law.
Thus, personal liberty being the cornerstone of our social structure, the concept of arrest and legal
provisions related to it have special significance.

The Meaning And Purpose Of Arrest Under Criminal Law

ARREST – MEANING THEREOF

In our daily lives, we hear the term arrest in a different context and through a distinct
medium. Nevertheless, the legal meaning and purpose of arrest and its implications are hardly
known.

The word ‘arrest’ has not been defined in the Code nor in any other substantive or
procedural laws. Thus, in the absence of such definition in the laws, the external aids to
interpretation are most desirable assistance. “When used in its ordinary and natural sense, the term
arrest denotes the apprehension or restraint or the deprivation of one’s personal liberty”. But to
understand the legal etymology of the term, we must look into law lexicons and earlier judicial
pronouncements on the subject.

Arrest in Law Lexicons

According to Black’s Law Dictionary, the term ‘arrest’ means “to keep a person in lawful
custody. A warrant, crime, or statute can authorize this”. Ramanatha Aiyar defines ‘arrest’ as “a
restraint of a man’s person, obliging him to be obedient to the law”. In criminal cases, an arrest is
often substituted by ‘apprehension’.
Thus, arrest, in simple terms, means stopping a person at his place and restraining his
movement and detaining him with valid legal authority. An arrest can be made to prevent a crime or
after a crime has been committed, if a suspect is known.

Arrest in Judicial Pronouncements

In R.R. Chari v. State of Uttar Pradesh, the apex court defined arrest as ‘the act of being
taken into custody to be formally charged with a crime’. The court observed that in a Constitutional
sense, it means the seizure of a person (body of a person). In State of Punjab v. Ajaib Singh, the
court observed that arrest is the ‘physical restraint put upon an abducted person in the process of
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 recovering and taking that person into legal custody with or without any allegation or accusation of
any actual or suspected commission of the offence.
The elements necessary to constitute arrest were summarised by the Madras High Court
in Roshan Beevi v. Joint Secy. To the Govt. of Tamil Nadu. The vital elements required to
institute arrest are:
1. There must be an intent to arrest under legal authority,
2. There must be seizure or detention of the person,
3. The person must be in the lawful custody of the arresting person,
4. The act of arrest must include the actual confining of the person and not a mere oral
declaration of the arrest.
Therefore, abridging above explanations of arrest, it can be deduced that arrest, in relation to
criminal procedure, “consists of taking into custody of another person, under authority empowered
by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the
commission of an offence”.

ARREST AND CUSTODY

The terms ‘arrest’ and ‘custody’ are usually used as a substitute for one another. However,
in Directorate of Enforcement v. Deepak Mahajan, Pandian J. speaking for the bench clearly
stated that ‘arrest and custody are not synonymous. Custody follows the arrest and does not
necessarily require an arrest to constitute custody’. Arrest, as already defined, means the formal
restriction of movement of a person.
After arrest, the person is either taken to the police station or produced before the Magistrate
whereby the Magistrate allows that person to be kept within the scrutiny of the police officer
(usually in the police station) for interrogation or to prevent his escape from justice. This process of
keeping the person in the police station is called custody. If the arrestee faces any threat at the
police station, he may be remanded in district prisons under the supervision of the Magistrate. This
is called ‘judicial custody’. Now, it is not necessary that there must be arrest to constitute custody.

A person who directly approaches the Magistrate and confesses a crime or one who submits
himself to the police or Magistrate can be kept under custody without any requirement of the arrest.

ARREST AND DETENTION

The difference between arrest and detention is petite and also difficult to determine. ‘Arrest’,
as a concept is used under the Code and it provides a detailed procedure to be followed before and
after an arrest. However, no definition or procedure for detention has been given by the Code. In
simplest words, unless the arresting authority officially declares an act of restraining as ‘arrest’, it
remains mere detention.

Let us assume, ‘A’ is a habitual thief of watches and steals in a specific area. There was a
theft in that area and besides other things, three watches were stolen from the house of the victim.
The police have reasonable suspicion on ‘A’ since he has been convicted on theft on several
occasions and all included theft of watches. The police reach ‘A’s’ house and ask him to sit down
and answer a few questions or takes him to the police station to interrogate. This is called detention.
However, if the police officers have any evidence against ‘A’, they apprehend him, inform his
family that he has been taken to the police station and prepares a memorandum to that effect, then it
is an arrest.

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 Therefore, when the police have a ‘reasonable suspicion’ on a person based on a ‘probable
cause’ but no evidence at all, it can detain a person for questioning. Such detention is often
unofficial and the person must be released after the questions are answered.

PURPOSE OF ARREST
The arrest of person might be necessary under the following circumstances:

1. For securing the attendance of the accused at Trial

When an individual is required to be tried by the court on the charge of certain offence(s)
under any prevalent law, his presence before the court becomes indispensable. If the court has
reason to believe that such attendance is not plausible to be ascertained by issuing a notice or
serving requisite summons to him, probably his arrest and detention is the only efficacious method
of procuring his presence at the trial. A court may issue a warrant of arrest against any person
accused of a crime instead of a summons or in addition to a summons.
The power can be exercised in two situations: (a) where the court believes that the person
summoned has absconded or will fail to turn up; and (b) where the person has failed to appear
before the court without reasonable cause. However, in a summons case, the court must issue a
summon at the first instance and only when the accused fails to appear on service of summons, the
court can issue a warrant[Sagar Suri v. the State of Delhi, 2004 Cri.L.J 212 (Delhi).].

2. As a preventive or precautionary measure

The Criminal Procedure Code empowers the police officers to take pre-emptive steps to
prevent the commission of a cognizable offence. For instance, under Section 151, it was held that
where an arrestee has a design (preparation) to commit a cognizable offence affecting the peace and
order in that place, his detention for certain days ordered by the Magistrate would be proper and
justified[Rajesh Raut v. the State of Maharashtra, 2003 Cri.L.J 4174 (Bom).].
There may be other circumstances where it is necessary as a precautionary measure to arrest
a person. For instance, under Section 110 read with Section 41(2), a habitual offender or an ex-
convict may be arrested to maintain peace and order in a specific area.

3. For obtaining the correct name and address

Section 42 of the Code provides that “where a person, on being asked by a police officer,
refuses to give his name and address, then under certain circumstances, it would be proper on the
part of the police to arrest such a person with a view to ascertain his correct name and address”.
The provision of this section is applicable if either of the two essential prerequisites is
satisfied. Firstly, the person either commits a non-cognizable offence in the accompaniment of a
police officer or secondly, the person is accused of committing such offence in the presence of a
police officer. However, “if the name and address are ascertained or otherwise known to the police
officer, the person is to be released on his executing a bond” to appear before a Magistrate[Gopal
Naidu v. Emperor, (1922) 46 Mad 605, FB.].

4. For removing obstruction to police

Section 41 (1) (e) states that any person who “obstructs a police officer in the execution of
his lawful duty would be and should be liable to be arrested then and thereby such a police officer”.
This provision is made to ensure the “effective discharge of police duties”. This is the
provision that enables police officers to use force on people engaged in protests and strikes and
arrest them without any justification. With respect to this provision, the law commission has also
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 stated that it was inserted by the British in 1898 Code to allow the company to suppress the voice of
people obstructing their peaceful operation and the provision must be relooked and narrowed down.

5. For retaking a person escaped from custody

Section 41(1) (e) is the residuary provision which provides that under any circumstance not
mentioned in any other clauses of Section 41(1) if the presence of the arrested person in the court
seems difficult, such person may be arrested. Thus, “a person who has escaped from lawful custody
should be arrested forthwith by the police”.
One of the purposes of arrest is to arrest a person who has escaped or attempts to escape
from the legal custody of the police or Magistrate. This Section applies only to lawful custody and
not unlawful arrest. It means that if the arrest was illegal and in non-compliance to the procedure
laid down under Section 46 of the Code, the arrestee has a right to private defence and s/he can
escape from the custody exercising such right[M.P. Sharma v. Dist. Magistrate Delhi, AIR 1954 SC
300.]. The power to arrest again arises if the escape is from lawful custody only.

CONCLUSION
Thus, the above enumerated are the circumstances in which the arrest of a person is essential
or at least desirable. These are the basic purposes of arresting a person. However, the determination
as to the existence of such circumstances and the consequent decision to arrest lies in the hands of
the police officers and should be made fairly having due regard to the liberty of the individual and
the interests of the society.

A Critical Analysis of the Manner of Arrest by Police Officers

Introduction
The word ‘arrest’ has not been defined in the Code nor in any other substantive or
procedural laws. Thus, in the absence of such definition in the laws, the external aids to
interpretation are most desirable assistance. Ratanlal, in his commentary, defines it as “the
apprehension or restraint or the deprivation of one’s personal liberty”. However, to understand the
legal etymology of the term, we must look into law lexicons and earlier judicial pronouncements on
the subject.

According to Black’s Law Dictionary, the term means “to keep a person in lawful
custody. A warrant, crime, or statute can authorize this”. Ramanatha Aiyar defines ‘arrest’ as “a
restraint of a man’s person, obliging him to be obedient to the law”. In criminal cases, an arrest is
often substituted by ‘apprehension’.

In R.R. Chari v. State of Uttar Pradesh, the apex court defined arrest as the act of being
taken into custody to be formally charged with a crime. Thus, arrest, in simple terms, means
stopping a person at his place and restraining his movement and detaining him with valid legal
authority. An arrest can be made to prevent a crime or after a crime has been committed, if a suspect
is known.

Arrest How Made?

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 The Code of Criminal Procedure, 1973 empowers police officers, Magistrates and private
citizens to effectuate the arrest of a person for any purpose necessary for the conduction of an
investigation, inquiry or trial. The circumstances in which such police officers, magistrates or
private citizens are authorized to arrest have been mentioned in Section 41 to 44 of the Code while
the manner of arrest of such arrested persons is provided under Section 46. The provision reads as
follows:

Arrest how made (Section 46)

1. In making an arrest the police officer or other person making the same shall actually
touch or confine the body of the person to be arrested unless there be a submission to the custody by
word or action.
2. If such person forcibly resists the endeavour to arrest him, or attempts to evade the
arrest, such police officer or another person may use all means necessary to effect the arrest.
3. Nothing in this section gives a right to cause the death of a person who is not accused
of an offence punishable with death or with imprisonment for life.
4. Save in exceptional circumstances, no women shall be arrested after sunset and before
sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making
a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose
local jurisdiction the offence is committed or the arrest is to be made.

Scope of the Provision

The provision depicts the manner in which arrests are required to be conducted by the
competent authority. The word ‘arrest’, in general, connotes a circumstance of being under the
surveillance of any authority such that the movement of the person arrested is restricted to a specific
area. When used in a legal sense with respect to the procedure connected with criminal offences, the
word denotes the apprehension by a person in authority, taking into custody and keeping the person
in detention under legal authority.
The section applies to arrest and not specifically to custody. All arrest involves taking
someone into custody but, however, vice versa is not true.

In Kultej Singh v. Circle Inspector of Police, the observed that restriction physical liberty
needs not to be absolute. If the movement of the detenu is restricted to the precincts of the police
station, it shall be sufficient to amount to arrest. Further, in Md. Nazim v. State, it was observed
that when the court has refused to interfere with the investigation, in normal course it should not
interfere with the power of the police to arrest a particular person.

Actual Contact – Clause (1)

Arrest, being a restraint on the liberty of a person, it is vital that the arresting authority
makes a contact or actually touches the body of the arrestee unless the arrestee is willing to
voluntarily submit himself to justice. In Harmohanlal v. Emperor, the court observed that mere
declaration by the police that the person is under arrest does not amount to actual arrest unless he is
actually touched and contacted with the intention to take him into custody. Also, “mere utterance of
words or gestures or flickering of eyes does not amount to arrest”[ Roshan Beevi v. Joint Secy.,
Government of Tamil Nadu, 1984 Cri. L.J. 134 (Mad).].
As aforementioned, the arrestee may submit himself to the police voluntarily and such
submission to custody may be by express words or may be indicated by conduct. Now, if a person
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 who is the offender approaches the police and informs that he has committed an offence and
confesses his guilt, it shall amount to submission. Submission, in common parlance, is what we
understand as surrender to the police.

In Thaniel Victor v. State, the court held that the essential elements to constitute arrest
under this section are “(i) there must be an intent to arrest under the authority, (ii) accompanied by a
seizure or detention of the person in the manner known to law and (iii) the procedure must be
understood by the arrested person” .

All Means – Clause (2)

In case there is “a forcible resistance to or attempt to evade arrest, the person attempting to
make an arrest may use all necessary means for the same”[ §46, Cr.P.C, 1973.]. However, the
means used by the authority to subject the person to arrest should be proportional to need. The test
to determine whether such force or impetus applied the authority was necessary for a given
circumstance “would depend on whether a reasonable person having no intention to cause any
serious injury to the other would have used to effect his arrest”.
In Nazir Mohammad v. Kasturchand Gomaji Co., the court averred that the words “all
means are very wide and include the taking of the assistance from others in effecting the arrest” .
Moreover, resistance or obstruction to a lawful arrest has been made “punishable by the Indian
Penal Code, 1860”[ §§224, 225 and 225B, 1860.] and thereby creating a legal obligation to
cooperate during the arrest.

An exception to “All Means” – Clause (3)

Contrary to the abovementioned clause, Clause (3) of Section 46 enjoins in clear terms that
though the persons making arrest can use all necessary means for the purpose, “they have not been
given any right to cause the death of a person who is not accused of an offence punishable with
death or imprisonment for life”[ Karam Singh v. Haradayal Singh, 1979 Cri. L.J 1211 (P&H).].
Again Section 49 provides that “the person arrested shall not be subjected to more restraint
than is necessary to prevent his escape”[ G.L. Gupta v. R.K. Sharma, AIR 2000 SC 3632.].
In Karam Singh, where the police party went with the intention to disperse and arrest members of
an unlawful assembly and, in the process, open fired at such assembly causing the death of an
innocent person, the court held that protection cannot be claimed under Section 46 by such police
officers.

Special Provision for Women – Clause (4)

A new sub-section or clause was added to the earlier Section 46 by the 2005 Criminal Law
Amendment Act in the form of clause (4). The provision came into force on June 23, 2006. Section
46 (4) prohibits the arrest of a woman after sunset and before sunrise except in unavoidable
circumstances. After a plethora of judgments produced by the courts for the protection of women,
this provision was added by the Parliament.
In case of any unavoidable circumstances, the woman police officer must obtain prior
permission from the Judicial Magistrate First Class after submitting a written report as to the need
for such late arrest. In the recent case of Kavita Manikikar v. CBI, the court held that non-
adherence of Section 46 (4) will render the arrest illegal and the officials who were responsible for
the violation of Section 46(4) of the Criminal Procedure Code, for arresting the accused after sunset,
will be liable for disciplinary proceedings.
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After Arrest Procedures

Introduction
Criminal Procedure is all about pre-trial, trial and post-trial procedures. Nevertheless, the
pre-trial period is the most significant which determines the evidence to be available for or against
the accused. Thus, elaborate provisions dealing with after arrest procedures under the Code of
Criminal Procedure, 1973 have been laid down to ensure that material evidence is collected with
expediency. Further, custodial violence is a by-product of pre-trial investigation and more
specifically arrest. Thus, after arrest procedures also ensures surveillance on the authorities making
the arrest.

Arrest means the “deprivation of a person of his liberty by a legal authority or at least by
apparent legal authority” e.g. a private person authorized by a legal authority. An arrest is necessary
under five circumstances:
 For ensuring the presence of the accused at the trial if there is a likelihood of his
absconding,
 As a means of taking precaution or preventive step,
 When a person accused of committing a non-cognizable offence denies giving his
correct name and address to the police,
 When the police are impeded during discharge of any official function,
 When re-arresting a person is necessary because either he escaped from custody or his
first arrest was made by a private person .
To meet these purposes, the Code of Criminal Procedure, 1973 provides certain specific
procedure and guidelines to be followed during the arrest.

Now, imagine a thief who has just stolen from a house and is running in the dark to escape
from the police. He does not see a pit, falls in it and breaks his leg. Due to this, he is also caught by
the police and when taken to the Magistrate, he claims that the police officers broke his leg by
torturing him. In a country like India where custodial torture is not unheard of, it will not be
difficult for the Magistrate to trust him. Therefore, the Code provides certain procedures to be
followed post-arrest to ensure the legality of the arrest and also protect the honest police officers
from false claims or hidden weapons.

Post-arrest Procedures
Sections 51 to 54, 58 and 59 of the Cr.P.C deal with after arrest procedures. These
provisions can be divided into five heads for easy comprehension.

The search of Arrested Persons:

Section 51 empowers the police officer or any other person authorised by law to conduct a
search in any place where there is a likelihood of discovering any evidentiary material. If such
search is to any avail and the searching authority discovers any document, material or thing, it can
seize them according to Section 102 of the Code and produce them in court to present on record.
Though the section does not require the search to be conducted in the presence of witnesses,
the rules made under the Police Act, 1861 direct that “the search should be made in the presence of

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 witnesses”. The witnesses like in Section 165 of the Code, should be any individuals who are
“independent and respectable members of the locality”[ §165, Cr.P.C, 1973.].

According to §165 (3), the police officer has the power to seize any article in the possession
of the accused person who has been arrested under the provisions of the Code and searched and the
police officer shall give to the accused a receipt mentioning the articles seized and their numbers so
that the same may be collected by him or his family after the investigation or trial as the case may
be.
The second clause of the provision provides a special requirement for the search of an
arrested person if she is a female. Such a search can be made only by a female police officer with
strict regard to decency. The non-compliance or any irregularity in following the procedure laid
down in this section does not vitiate the trial. For instance, in Mahadeo v. State, the failure of the
police to take out a recovery memo of the seized articles was held to be not vitiating the trial.

Seizure of Offensive Weapons:

According to §52, it may be noted that the section empowers any person making an arrest
under the Code to seize any offensive weapon from the possession of the arrested person. After such
weapons are seized, the police are required to prepare a recovery memo with the detail about the
weapons, any part of the weapon that is missing or is severed from it or is recovered separately from
the weapons. For instance, the recovery of a gun should be recorded along with any bullet or shell
of the bullet found with it.
Medical Examination of the Arrested Person:
Section 53 and 54 of the Cr.P.C provide for medical examinations. The code entails two
kinds of medical examination. First, under Section 53, medical examination of the accused by a
registered medical practitioner to ensure that anything can be found from the examination of the
body of blood of the accused that may prove to be strong evidence in court. For e.g., if a victim
claims that the accused was very drunk when he attacked, the discovery of alcohol in the blood can
connote sufficient evidence.
The second examination is, conducted under Section 54, of a person arrested for the
purposes of investigation or interrogation and such examination has to be conducted by a senior
doctor in the service of the government known as ‘medical officer’.
Section 53 of Cr.P.C empowers senior police officers to compel the accused person in
custody to submit to the medical examination. Now, questions have arisen whether this provision is
violative of the right against self-incrimination under Article 20(3) of the Constitution of India.
The landmark case with respect to “self-incrimination is State of Bombay v. Kathi Kalu
Oghad”. The Bombay High Court relied upon the principles laid down in Oghad by the Supreme
Court and held that “Section 53 is not violative of Article 20(3) and a person cannot be said to have
been compelled “to be a witness” against himself if he is merely required to undergo a medical
examination in accordance with the provisions of Sections 53”.

The power to compel the accused to submit to a medical examination is hedged in various
conditions. The object of this section is to “balance the individual’s interest and society’s interest” .
In Bhabani Prasad Jena v. Orissa State Commission for Women and Neeraj Sharma v. the
State of U.P., the courts held that “examination of the person under Section 53 cannot be
restrictively confined only to the examination of the skin or what is visible on the body” . It may
include X-Ray, blood test, serum test, etc. that may result in the discovery of any evidence.

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 By giving an elaborate explanation as to the meaning of “examination” and “registered
medical practitioner”, the Amendment to the Code in 2005 inserted Sections 53A, 54(2) and 54A
laying down the procedure for the conduct of the medical examination. The use of the term “shall”
under Section 54, makes it “mandatory for the arrested person to be examined by a registered
medical practitioner soon after the arrest”.

Identification of the Arrested Person:

After the police arrest one or more suspects, it is necessary that the suspect is being
identified either by the victim or any witness who saw the person committing the offence or saw
him at the scene of the offence. Section 54A provides for that. This process is generally called the
‘test-identification parade or T.I. Parade’ whereby the police officers prepare a lineup of the
suspects along with other persons with similar built and look to ensure that the accused from
amongst the suspect is identified with surety.
It may be noted that no specific procedure to conduct the identification has been provided
but the power is left to the court to decide the procedure. Thus, the parade can be conducted in the
police station or the office of the Executive Magistrate, except when the identifying person is
physically or mentally disabled. The person identifying the accused is always kept hidden from the
suspects to ensure his/her safety. It is believed that T.I. the parade is not completely accurate
because when two similar looking persons come together, the witness can be confused but,
however, it is still an important step to dissect the accused from several suspects.

Report of Arrest to be sent to District Magistrate:

Section 58 of the Code requires a police officer to send the report of all cases where the
accused person(s) is “arrested without a warrant within the local limits of his police station to the
District Magistrate or if the District Magistrate directs, to the Sub-divisional Magistrate”. The object
of the section is “to keep the District Magistrate, etc. informed of the situation regarding grave
offences”.[ Law Commission Report, No. 37, 1968 para. 206.] The administration of police in a
district is under “the general control and direction of the District Magistrate”[ §4, Cr.P.C, 1973.].
Therefore, report under this section would enable him to see whether the police are exercising their
powers appropriately or not.

Discharge of Arrested Person only on Bond or Bail:

According to Section 59, once a person is arrested by the police, s/he can be enlarged only
after taking a bond or bail for his appearance before a Magistrate. The police cannot discharge him
on their own responsibility without the order of a Magistrate. The special order of the Magistrate
contemplated in this section is an order under Section 167 of the Code which prescribes procedure
when “the investigation, according to the police, cannot be completed within the stipulated period
of 24 hours” .

Conclusion
The above mentioned procedural requirements relate to after arrest procedures. The effect of
non-compliance of these procedures differ from provision to provision, generally, non-compliance
of these procedures does not affect the validity of the trial or the investigation.

These procedures are multi-purpose since they create an obligation upon the police, they
foster rights of the arrested person, further, these procedures facilitate investigation and also assists
the police officer against any false accusations in future.

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Rights of an Arrested Person

The powers given to police to facilitate the making of arrest are not absolute. These powers
are subject to certain restraints. These restraints are the rights of an arrested person. Thus, Rights of
an arrested person are-

1. Right to know the grounds of Arrest

2. Information regarding the Right to be released on Bail
3. Right to be taken before a Magistrate without Delay
4. Right to a Fair Trial
5. Right to Consult a Legal Practitioner
6. Right to be examined by a Medical Practitioner
7. Right to Silence
8. Right to know the grounds of Arrest

1.Right to know the grounds of Arrest

1.1) As per Section 50(1) of Cr.PC., every person who is being arrested by any police
officer, without any warrant, is entitled to know the full particulars of offence for which he is being
arrested, and that the police officer is duty bound to tell the accused such particulars and cannot
deny it.

1.2) As per Section 55 of Cr.PC., when any person is being arrested by any police officer,
who is deputed by a senior police officer, then such subordinate officer shall before making such
arrest, notify the person to be arrested the substance of the written order given by the senior police
officer specifying the offence or other cause for which the arrest is to be made. If this provision is
not complied with, then the arrest would be rendered illegal.

1.3) if the person is being arrested under a warrant, then as per Section 75 of Cr.PC, any
person who is executing such warrant must notify the person to be arrested, the particulars of such
warrant, or even show such warrant if needed. If the substance of the warrant is not notified, the
arrest would be unlawful.

1.4) the Constitution of India also confers this right as one of the fundamental rights. Article
22(2) of the constitution provides that “no person who is arrested shall be detained in custody
without being informed as soon as may be, of the grounds for such arrest nor shall he be denied the
right to consult, and to be defended by a legal practitioner of his choice.”

2.Information regarding the Right to be released on Bail

Any person who is to be arrested without a warrant and is not accused of a non-bailable
offense has to be informed by the police officer that he is entitled to be released on bail on payment
of the surety amount. This helps persons who are arrested for bailable offenses and are not aware of
their right to be released on bail.

3.Right to be taken before a Magistrate without Delay

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 Irrespective of the fact, that whether the arrest was made with or without a warrant, the
person who is making such arrest has to bring the arrested person before a judicial officer without
any unnecessary delay. Further, the arrested person has to be confined in police station only and
nowhere else, before taking him to the Magistrate. These matters have been provided in Cr.P.C.
under sections 56 and 76 which are as given below:

Section 56 of Cr.PC. states that “Person arrested to be taken before Magistrate or officer in
charge of police station- A police officer making an arrest without warrant shall, without
unnecessary delay and subject to the provisions herein contained as to bail, take or send the person
arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a
police station”.
Section 76 of Cr.PC. states that “Person arrested to be brought before Court without delay-
The police officer or other person executing a warrant of arrest shall (subject to the provisions of
section 71 as to security) without unnecessary delay bring the person arrested before the Court
before which he is required by law to produce such person”.
Further, it has been mentioned in the proviso of Section 76 that such delay shall not exceed
24 hours in any case. While calculating the time period of 24 hours, the time necessary for the
journey is to be excluded. The same has been enumerated in the Constitution as a Fundamental
Right under Article 22(2). This right has been created with a view to eliminating the possibility of
police officials from extracting confessions or compelling a person to give information.

If the police officials fail to produce an arrested person before a magistrate within 24 hours
of the arrest, the police officials shall be held guilty of wrongful detention.

4.Rights at Trial
4.1) Right to a Fair Trial
The Constitution under Article 14 guarantees the right to equality before the law. The Code
of Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This
provision is designed to ensure that convictions are not obtained in secret. In some exceptional
cases, the trial may be held in camera.
4.2) Right to a Speedy Trial by the Constitution of India
Though this right has not been specifically mentioned in the Constitution, however, the SC
in the Hussainara Khatoon v. State of Bihar (1980) 1 SCC 98 has made it mandatory that the
investigation in the trial must be conducted “as expeditiously as possible.”
In cases, wherein the maximum punishment that can be imposed is 2 years, once the accused
is arrested, the investigation for the trial has to be completed within the period of six months or
stopped on receiving an order from the Magistrate, unless the Magistrate receives and accepts, with
his reasons in writing, that there is cause to extend the investigation.

5.Right to Consult a Legal Practitioner

Every person who is arrested has a right to consult a legal practitioner of his own choice.
This has been enshrined as a fundamental right in Article 22(1) of the Constitution of India, which
cannot be denied in any case. Section 50(3) of the Code also lays down that the person against
whom proceedings are initiated has a right to be defended by a pleader of his choice. This starts
begins as soon as the person is arrested. The consultation with the lawyer may be in the presence of
police officer but not within his hearing.

6.Rights of Free Legal Aid

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 The Supreme Court in the case of in Khatri(II) v. State of Bihar (1981) 1 SCC 627 has
held that the state is under a constitutional obligation (implicit in Article 21) to provide free legal
aid to an indigent accused person as is implicit in Article 21 of the Constitution. This right does not
come into picture only at the time of trial but exists at the time when the accused is produced the
first time before the magistrate, as also when remanded from time to time. The Supreme Court
further states that failure on the part of the state to inform the accused of this right will vitiate the
whole process of trial. Therefore, a duty is imposed on all magistrates and courts to inform the
indigent accused of his right to get free legal aid.

7.Right to be examined by a Medical Practitioner

Section 54 of Cr.PC. enumerates this right. It states that: “Examination of arrested person by
medical practitioner at the request of the arrested person- When a person who is arrested, whether
on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time
during the period of his detention in custody that the examination of his body will afford evidence
which will disprove the commission by him of any offence or which will establish the commission
by any other person of any offence against his body, the Magistrate shall, if requested by the
arrested person so to do direct the examination of the body of such person by a registered medical
practitioner unless the Magistrate considers that the request is made for the purpose of vexation or
delay or for defeating the ends of justice.”

8.Right to Silence
The ‘right to silence’ has been derived from common law principles. It means that normally
courts or tribunals should not conclude that the person is guilty of any conduct merely because he
has not responded to questions which were asked by the police or by the court. The breaking of
silence by the accused can be before a magistrate but should be voluntary and without any duress or
inducement.

As per Article 20(3) of Constitution of India guarantees every person has been given a right
against self-incrimination, it states that any person who has been accused of any offense, shall not
be compelled to be a witness against himself. The same was again reiterated by a decision of
Supreme Court in the case of Nandini Sathpathy v. P.L.Dani (1978) 2 SCC 424; wherein it was
held that no one can forcibly extract statements from the accused and that the accused has the right
to keep silent during the course of interrogation (investigation). The Supreme Court again in the
year 2010, held that narco-analysis, brain mapping, and lie detector test are in violation of Article
20(3) of the Constitution of India.

Consequences of Non-adherence of Procedure of Arrest

A Preface to Arrest
In the Indian society, our heartbeat still stops beating, lungs stop breathing and the body
starts shivering when we hear the term ‘arrest’. An arrest is looked upon as ‘conviction’ or proof of
a crime in large areas of the society even today.

Procedure of Arrest
Whether an arrest is made without warrant or with warrant, it is necessary that in making
such an arrest, “the police officer or any other authorized person arresting touches or confines the

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 body of such person who is to be arrested, unless the person submits himself wilfully either by
words or action”[ §46, Cr.P.C, 1973.]. In Roshan Beevi v. Joint Secy., Government of Tamil
Nadu, the Madras High Court held that ‘an oral declaration of arrest without actual contact or
submission to custody will not amount to arrest’.
Section 41B of the Cr.P.C requires that every police officer affecting an arrest “shall bear an
accurate, visible and clear identification of his name in order to facilitate easy identification”.
Further, the police officer is required to “prepare a memorandum to record the arrest” and the
memorandum must be signed by a family member or any independent person who is a respectable
member of the society.
The arrestee, if the family members are not present at the time of arrest, must be informed of
his right to inform one family member or friend about his arrest to ensure that bail or bond can be
successfully availed of.

Besides the above provisions, the apex court has laid down detailed guidelines with respect
to the procedure of arrest in two landmark and classic cases; Joginder Singh v. the State of
U.P. and D.K. Basu v. State of West Bengal. Some of the momentous procedure to be followed
are:
1. The police are required to make “entry in the police diary about the time and place of
arrest and who has been informed of the arrest”.
2. The arrestee must be “subjected to medical examination” by trained doctors “every 48
hours” during his period of detention.
3. The arrestee may be “permitted to meet his lawyer” during interrogation.
4. All the district and State police control rooms must be informed of such arrest to
ensure the easy location of the arrestee by his/her family.
The procedure of arrest enlisted above has been provided considering the fact that arrest is a
practical violation of the right to liberty of a person under Articles 19 and 21 of the Constitution of
India. Therefore, it is necessary that the power to arrest must be exercised with “reasonable care and
caution” and not at the whims of the authority.

Consequences of Non-adherence of Procedures

Cr.P.C provides stringent procedural requirements for giving effect to an arrest. However,
no provision is devoted to the consequences that will follow in case of non-adherence of these
procedures; no law speaks about the liability of the police officers or the State in case of failure to
follow the procedures or whether such arrest is legal or illegal. In such a situation, the
pronouncements by the courts are the guiding light for this issue. The consequences of non-
adherence of procedural requirements of arrest in a different legal context are as follows:

1. Effect on Arrest: If a police officer blatantly violates all the procedure under the
Code of Criminal Procedure while arresting a person, it shall become an illegal arrest. On the other
hand, if certain provisions are not complied with while substantial provisions are complied with, it
is an irregular arrest. In either situation, the arrest is not valid and the Magistrate must take not of
the nature of illegality of arrest when the arrestee is first brought before him/her.
2. Effect on Trial: Trial is a stage where the investigation is complete and the police
officers, having found sufficient evidence against the accused, have charged him with certain
offences and the court determines the guilt or the innocence of the accused. A trial will not be void
simply because provisions relating to arrest have not been fully complied with. However, though
the illegality or irregularity of arrest will not vitiate the trial of the accused, it will still be quite

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 material if the charge against such person is of resistance to or escape from the lawful custody of
the police. Since the custody is unlawful, the authenticity of the charge is shaken.

3. Effect on Jurisdiction of Court: It is possible that while in the unlawful exercise of

his powers, a public servant may end up arresting a person in one part of the State while the charge
sheet is filed in some other part of the State where the police station is located. The fact that the
officer who effected the arrest went beyond his powers in making arrest does not affect the
jurisdiction of the court to try the accused. In Rishbud v. State of Delhi, the court observed that
non-adherence of procedure of arrest is “merely a procedural irregularity which does not go deep to
the root of the matter such as to oust the jurisdiction of the court”.

4. Liability of State: From a practical point of view, the relationship between the State
and the police department is that of an employer and an employee or in a non-conventional legal
language, a master-servant relation. According to the laws of vicarious liability, “the master shall be
liable for the wrongful acts of the servant done during the course of his employment”. Now, the
arrest is an official duty of a police officer done during his course of employment in the official
uniform. Therefore, the State should be held liable in case of illegal arrest by a police officer.
In Nagendra Rao v. State of Andhra Pradesh, the apex court ruled out the defence of sovereign
immunity from government employees (laid down in Kasturi Lal[Kasturilal v. the State of U.P.,
AIR 1965 SC 1039.]) and held that “the State can be held liable for wrongful acts of the police
officers”.

5. Prosecution of the Offender: If a public servant having authority to arrest, knowingly

exercises that authority in contravention of law and effects an illegal arrest, he can be prosecuted
under Section 220 of the Indian Penal Code, 1860 for the same offence punishable with an
incarceration period of 7 years. Besides this special provision, any person, including a police
officer, can be prosecuted for “wrongful confinement” under Section 342 of the Penal Code.

6. Civil Action against the Offender: If an arrest is illegal and made against the
provisions of the law, it amounts to the tort of ‘false imprisonment’. A tort is a civil wrong usually
uncodified and developed by courts of the common law countries. According to the tort of false
imprisonment, any person who restrains the free movement of any other person and confined such
person without his/her knowledge or consent shall be liable for the tort of false imprisonment. Any
defendant in such cases, if found guilty, must pay pecuniary damages to the plaintiff.

7. Right to Private Defence: Among several general exceptions to offences, the Indian
Penal Code provides the right to defend oneself and one’s property as a general exception to the
commission of an offence under IPC. According to this right, any person facing an imminent threat
to his life, person or property or any other person’s life or property, can use proportional force to
stop such threat or avoid it.
According to Section 99 of the Code, the right also extends against any act of a public
servant which is not done in the colours of his office or in good faith. Therefore, if a person is
subjected to illegal arrest or detention, such person has a right to defend himself against any force
used in such arrest and also escape from the public servant if the arrest is illegal[M.P. Sharma v.
Dist. Magistrate Delhi, AIR 1954 SC 300.].

Remedies in Case of Non-adherence of Procedure of Arrest

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 The most popular common law maxim states ‘ubi jus ibi remedium’, i.e. for every wrong,
there is a remedy. The law is of no use if there is a remedy for violation of right. A right without a
remedy is like a car without fuel; only utility is to snob. For non-adherence of procedure of arrest, a
victim can claim two forms of relief:

 Relief of Release from Confinement: Where it is found that a person is illegally

arrested, the High Courts or the Supreme Court can issue a “writ in the nature of habeas
corpus” ordering the release of such person. In Sebastian M. Hongray v. Union of India &
Ors., the Supreme Court issued a writ of habeas corpus directing the respondents to release two
named persons and if not, show cause as to why they cannot be produced before the court.
Similarly, in Smt. Harbans Kaur v. Union of India, the petitioner is a mother of four sons,
all of whom were arrested by police officers without providing any reasons and informing her of the
place of their detention. In the custody, one son Gurbaksh was beaten to death while others were
illegally detained without presence before the magistrate. On the order of the court, the detenu was
presented before the Judicial Magistrate and judicial custody was ordered. The SC observed that
since one detenu has died and others have been lawfully detained in judicial custody habeas corpus
cannot be issued. Nevertheless, the court ordered an enquiry by the DGP into the death and illegal
detention of all the victims.
 Relief of Compensation: The relief of compensation for illegal arrest cannot begin
without the landmark judgment of Nilabati Behera v. State Of Orissa. The petitioner is the mother
of the deceased who was arrested by the police officers and brutally beaten and later, his body was
found near the railway track. The police claimed it to be an attempt to escape. However, the court
was satisfied that the act was “done by the police officers” and thus, “a compensation of Rs. 1,
50,000 was awarded to the petitioner”. This was the first case where the court awarded pecuniary
compensation for illegal arrest.

In Prabavathy v. The State of Tamil Nadu, the petitioner filed the writ petition seeking for
a direction to the respondents “to pay compensation of Rs.5 Lakhs to the petitioner for the illegal
detention and death of her husband E.Nanjappan in the judicial custody”. Court held that the
petitioners were supposed to pay 8 lakhs as compensation.

 Other Reliefs: The main relief which is usually sought is the release of the detenu and
compensation. However, in certain cases, different reliefs have been sought and the courts have
even accepted such reliefs. In P Rathinam v State of Gujarat & Ors., the petitioner requested the
court to formulate a committee to investigate the custodial rape of the petitioner after her illegal
arrest. Further, in Sri Ramamurthy v. the State of Karnataka, the apex court directed the State
government to amend their Police and Prison Manuals that give carte blanche powers to the public
servant.

Power of the Police Officers to Search a Place with and without Warrant

Introduction
the Power of the Police Officers to Search a Place with and without Warrant. During an
investigation, enquiry or trial, the police or the court relies on several documents or other material
objects to proceed with the proceedings. To ensure the availability of such things to the agencies

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 conducting such proceedings, the code bestows power upon the police officers to search a place and
obtain anything so discovered.

The materials may be in possession or control of a certain person or persons who are
required to produce such relevant documents or things before the court. However, if such person
fails to produce such things, the law empowers these agencies to devise coercive methods for
obtaining these material objects such as the power to search a place and seize any relevant object.

The Code of Criminal Procedure, 1973, therefore, provides initially for a summon to be
issued by the appropriate agency (Magistrate or Court) to the person in possession of such
things[§91, Cr.P.C, 1973.]; but, if this measure proves unsuccessful or is anticipated to fail, the
police is empowered, on specific orders and issuance of warrant by the court to search the place for
any document or thing kept or hidden by such person and may seize them[§93, Cr.P.C, 1973.].
The Code empowers the court to “issue warrants for general search”[ §93, Cr.P.C, 1973.] of
a place or for any specific things or documents as the case may be. Moreover, there can be
circumstances when the power needs to be exercised urgently for the threat of tampering of
evidence or absconding of the accused or witness. To conform to such exigencies, the Code also
entitles the police to conduct a search even without a warrant from the competent Magistrate.

Search with a Warrant

A search-warrant is a “written authority given to a police officer or other person by a
competent Magistrate or a Court for the search of any place either generally or for specified things,
documents or for persons in wrongful confinement”. According to the provisions of Cr.P.C, search-
warrants can be issued under six circumstances; divided into four provisions of the Code.
Three of the six circumstances are covered by Section 93 (1) which states as follows:
 According to Section 93 (1) (a), a search warrant can be issued “only if a person fails
to produce a document or thing required to be produced under a summon”. If a summon cannot be
issued under Section 91, a warrant can also not be issued. In Kalanithi Maran v. State, the Madras
High Court held that “a search warrant cannot be issued under this provision for the production of a
document or property known to be in the possession of the accused person”.
The words ‘reason to believe’ in this clause would be construed to mean as “sufficient cause
to believe” [ Bimal Kanti v. M. Chandrashekhar Rao, 1986 Cri.L.J 689 (Ori).] that there is a
necessity for the search warrant to be issued otherwise the thing would not be produced. Further, the
word ‘may’ connotes that the court is not bound to issue a search-warrant whenever it is asked for.
It was observed that the court may direct an investigation by the police before issuing any search
warrant[Melecio Fernandes v. Mohan, AIR 1966 Goa 23.].

 A warrant of the search may also be issued when the possessor of a relevant document
or property is “not known to the court”. In such circumstances, the police have the power to search
all suspected places until the document or the thing is discovered and accordingly seized.
 According to Section 93 (1) (c), a general search-warrant can be issued to serve the
purpose of any investigation, inquiry or trial. The Calcutta High Court while explaining a general
search conducted by the police observed that general search is a roving enquiry conducted by a
police officer to answer questions as to whether a person is part of a criminal act or not.[ Paresh
Chandra Sen Gupta v. Jogendra Nath, AIR 1927 Cal 93.]


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 The word ‘inspection’ under clause (c) relate only to the inspection of the locality or place
of search and the inspection of the document. In Hoshide v. Emperor, the court observed that the
omission of the word ‘investigation’ along with inquiry and trial suggests that the legislature did not
provide for the issuing of the warrant under this provision for the purpose of an investigation.
This provision can be used only for trial or inquiry or other proceedings which must be
interpreted ejusdem generis to mean other judicial proceedings. Thus, a Magistrate issuing warrant
under this provision for investigation purposes commits a wrong that amounts to procedural
irregularity.

 A warrant for a search of a place suspected to contain stolen properties, forged

documents, etc. can be issued under Section 94 of the Code. This is the fourth circumstance when
search-warrant can be issued. The essential elements or the crux of the provision provides that:
i. The search-warrant can be “issued only by a District Magistrate, Sub-divisional
Magistrate or Judicial Magistrate First Class” ,
ii. The person authorized to search “must be a police officer above the rank of a
constable”,
iii. Before the warrant is issued, the concerned Magistrate must have “sufficient reason to
believe that a place is used for the deposit or sale of stolen property, etc.” [Dinesh Auto Finance v.
State of Andhra Pradesh, 1988 Cri. L.J 1876 (AP).]

 Where any document such as a newspaper, book or journal contains any libellous or
seditious matter or anything prohibited to be published by the Central or the State Government is
circulated amongst the general public with the intention of spreading it, the government may order
for forfeiture of every copy of such document containing prohibited matter [§95, Cr.P.C, 1973.].

 Lastly, search-warrant can be issued to search a place to find a person who is

“confined under such circumstances that the confinement amounts to an offence under any of the
laws of the country for the time being in force; such as kidnapping or abduction, etc.”[ §95, Cr.P.C,
1973.] In Zahirul Hassan v. State of U.P., the court averred that “the warrant under this section is
in the nature of a writ of habeas corpus for the rescue of a wrongfully confined person by the
intervention of police directed by a magisterial order”.

The provision was used by “a father to rescue his married daughter from her wrongful
confinement by her in-laws in Pravin Singh v. Biharilal Singh”. The court observed that “before a
warrant is issued under this section, the Magistrate only needs to satisfy himself that a person has
been wrongfully confined” and he is not required to hold a detailed inquiry for his satisfaction.

General Provisions relating to Search-Warrants

Certain provisions in respect of a warrant of arrest have been made applicable mutatis
mutandis to search warrants issued under any of the aforementioned six circumstances by virtue
of Section 99 of the Code of Criminal Procedure.
Section 99 states that “the provisions of sections 38, 70, 72, 74, 77, 78 and 79 shall, so far as
may be, apply to all search- warrants issued under section 93, section 94, section 95 or section 97”.
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 Section 38 referred to in Section 99 provides that a person, other than a police officer, may
be aided in the execution of a warrant. Sections 70 and 72 deal with the form of the warrant, its
duration and the person to whom it might be directed. Section 74 provides that “a warrant directed
to any police officer may be executed by any other police officer whose name is endorsed on the
warrant” by the police officer who was initially directed to execute the warrant. Sections 77 to
79 deal with the jurisdiction related issues in case of warrant.

The search of a Place without Warrant

There can be exigencies during the process of investigation or inquiry where an immediate
search of a place is vital to prevent the loss or fabrication of any document or thing relevant to the
case. The Code provides for such exigencies by empowering the Magistrate to cause the search of a
place in his presence where no written warrant is necessary and also empowers the police officers to
conduct such search without any authorization from the Magistrate or the Court. The Code provides
four circumstances where search can be conducted without a warrant.
 A Magistrate competent to issue a search warrant under any of the six circumstances
mentioned above “may direct a search to be made in his presence if he considers it advisable. In
such a case, it would not be necessary to formally issue a search-warrant”[ §103, Cr.P.C, 1973.].
 In Melecio Fernandes, the court asserted that “a citizen should have in his house a
full and free life undisturbed by any executive or administrative action. However, in the larger
interests of the administration of justice, it becomes necessary that public officers engaged in
investigations and inquiries related to offences or suspected offences should be afforded fair and
reasonable opportunities for searches” [Melecio Fernandes v. Mohan, AIR 1966 Goa 23.].
Generally, a search can be conducted only by an authority if a judicial officer.
Nevertheless, Section 165 of the Code is an exception to this general rule. This provision
recognizes that “in certain exceptional emergencies, it is necessary to empower responsible police
officers to carry out searches before applying for a warrant to the court”.

An analysis of the provision will show that:

a. The power to search under this Section can be exercised only by the officer-in-charge
of the police station or any officer specifically authorized by such officer-in-charge,
b. The search must be for specific documents or things or materials and not be a general
search,
c. The police officer conducting the search must have reasonable grounds to believe that
any specific material or document may be found in that place and it cannot be otherwise obtained
without undue delay.
d. Lastly, the police officer must record in writing the ‘reasonable grounds’
aforementioned and provide a copy of the search and seizure memo to the person in possession of
the place of search.
 Section 166 enables a police officer to effectuate the search of a place located beyond
the limits of his own police station if the extremity so requires. The provision includes two aspects
of search without a warrant.
Firstly, when a police officer conducting the investigation has reason to believe that certain
relevant document or material things can be obtained from a place beyond the jurisdiction of his
police station, such officer may ask any other police officer of the police station that has jurisdiction
over such place to make the search on his behalf. The officer so required to make a search can

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 proceed according to Section 165 and transmit any document or thing found from such search to the
police station where the offence was committed.
Secondly, if the police officer has reason to believe that the delay occasioned by requiring
an officer-in-charge of another police station to cause a search to be made as mentioned above will
result in the concealment or destruction of any evidence, the police officer may himself search such
place out of the limits of his police station and such search will not be unlawful.

 If a place such as a grocery shop or ration shop where goods are sold on the basis of
the weight, uses false weights or any tool to deceive the customers with respect to the weight of
such goods, the police officers have power to search such places for such false weights and tools
and seize any illegal material found in that place[§165, Cr.P.C, 1973.].

Consequences of Non-compliance of the Procedure of Search and Seizure

Introduction to Search & Seizure

A trial is a stage when the court examines documents and witnesses to determine the guilt of
the person accused of an offence. Thus, anything that assists in the commencement of trial is called
a pre-trial procedure. As already said, during the trial, the court examines documents and witnesses
including the accused itself.

Therefore, to ensure the presence of such persons and production of such documents before
the court, several powers have been conferred upon the police officers and procedure established to
be followed while exercising these powers. The power to search a place can be exercised either
under a valid warrant issued by the Magistrate or without a warrant as required by the law.

Section 93 of the Code of Criminal Procedure provides that a court may issue a search
warrant if (i) it believes that “a person required to produce a document in the court will fail to do
so”, (ii) if the document is “not known to the court to be in the possession of any person” and (iii)
the court believes that “a general search of a place will serve the purpose of the trial”. On the other
hand, Section 103 of the Code allows a Magistrate to conduct a search in his presence without the
need of a warrant. Thus, a search may be conducted with and without a warrant.

What is a Search Warrant?

A search warrant is “a written authority given to a police officer or other person by a
competent Magistrate or a court for the search of any place either generally or for specified things
or documents or persons wrongfully detained”.
A search is “a coercive method” and involves invasion of a person’s privacy and sanctity of
his home. Therefore, the courts have repeatedly held that “the power to issue search warrant must
be exercised with ‘all the care and circumspection’”[ Kalinga Tubes Ltd. v. D. Suri, (1953) 54 Cri.
L.J. 1041; Also, Stephen v. Chandra Mohan, 1988 Cri. L.J. 308 (Ker.).].

A warrant of search can be issued under six circumstances:

1. When the courts have sufficient belief that a vital document is in the possession of a
person who, in all probability, will not produce it by the issuance of summoning [ Cr.P.C, §93 (1)
(a), 1973.],
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 2. There can be circumstances where the investigating agency is not aware if certain is in
possession of a person or not. In such cases, the warrant can be issued to search any suspected
place[Cr.P.C, §93 (1) (b), 1973.],
3. Where some evidence is still missing but no specific search is required because the
nature of the evidence is not known. In such cases, a general search may be conducted under
warrant[Cr.P.C, §93 (1) (c), 1973.],
4. Where information is received or self-acknowledged that a place is used for certain
illegal purposes which are not allowed by the IPC or any other law, such places can be searched
under warrant[Cr.P.C, §94, 1973.] (e.g. Narcotic substances),
5. When the case relates to confinement of a human being in a manner not allowed by
the law and in a place not consented by that person [ §97, Cr.P.C, 1973.] (e.g. wrongful
confinement or abduction or kidnapping) and
6. Where “a District Magistrate, Sub-divisional Magistrate or Magistrate of First Class”
receives a complaint on oath about the abduction of any female below the age of 18 years for any
unlawful purposes.

Mandatory Search & Seizure Procedures

Whether a search is made with or without a warrant, the provisions of Sections 100 and
165 of the Cr.P.C have been made applicable. According to these provisions, the relevant procedure
are:
 The police officer must conduct the search in person and if he is not available, he can
delegate the search to a sub-ordinate officer but after recording his reasons for doing so.
 The warrant must be issued by “a competent Magistrate or Court”, as the case may be.
 The police officer should call upon two independent and respectable persons from the
nearby locality (called the “panchas”) and the search must be conducted in their presence.
 The police must prepare a record or memorandum of all things or documents
recovered during the search and the document must be signed by the
 The copy of the memorandum must be provided to the person whose place is being
searched.

Consequences of Non-Compliance with the said Procedure

The aforementioned provisions apply generally to all types of searches made by a police
officer. As already stated before, the search is a coercive method and violates several fundamental
and legal right of the person whose house is searched. However, the constitutional validity of the
search warrant has been upheld by the Supreme Court considering the interest of the public at large
kept juxtaposing to the rights of an individual[V.S. Kuttan Pillai v. Ramakrishnan, (1980) 1 SCC
164.]. Thus, the question arises is as to the impact of non-adherence to these procedures. Whether a
non-compliance of procedure of search and seizure vitiate the trial or whether it loses its evidentiary
value.
It has been reiterated by the apex court that “if the discovery of a fact is otherwise reliable,
its evidentiary value is not diminished by reason of non-compliance of Section 100 (4) and 100
(5)”[ Musheer Khan v. State of Madhya Pradesh, AIR 2010 SC 762.]. Besides the general impact
on the evidentiary value of the seized things or documents, the following consequences arise due to
disobedience of the following procedures:

1. Magistrate not empowered to issue a search warrant

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 The Code ordains that in certain circumstances the warrant can be issued by any specific
Magistrate for instance, in case of the kidnap of a girl, the warrant can be issued by District
Magistrate, Executive Magistrate or Sub-divisional Magistrate. If, however, such a warrant is issued
by any other Magistrate erroneously and in good faith, the validity of the warrant will not be
affected.

The warrant continues to be effective and the subsequent procedure is that if anything is
recovered from such search, it must be handed over to the appropriate authority having jurisdiction.
This is provided specifically under Section 460 (a) of the Cr.P.C.
Under Section 93 (3) only “a District Magistrate or Chief Judicial Magistrate” can issue a
warrant for a search of a document or thing “in the custody of the postal or telegraph office”. If the
warrant is issued by any other Magistrate, in this case, the warrant shall be ineffective and any
proceeding that has commenced shall vitiate[Cr.P.C, §461 (b), 1973.].
Further, if the warrant is not issued by a District Magistrate, Sub-divisional Magistrate or
First Class Magistrate under Section 97 for unlawful detention, the warrant shall “be illegal and any
entry into the place in consequence of such illegal warrant would be without any legal authority”.

2. Search without warrant by unauthorised police officers

Under certain circumstances, the Code allows a police officer to conduct the search without
a warrant. This can be seen in Sections 153, 165 and 166 of the Code where the police officers are
allowed to search and seize without a warrant to avoid delay in the investigation or prevent
escapism of the suspects, etc. This power can be exercised by a police officer of a certain rank or by
one who is specifically authorised by the law. If the search is conducted by any officer other than
the one prescribed by law, the search shall be illegal and the entry into such a place will be
unauthorised.
Further, under these provisions, a police officer may search a place only within the
jurisdiction of his police station. To conduct a search of a suspicious place not in his jurisdiction,
the officer “shall request the officer in charge of the police station in whose jurisdiction the place
lies”. Further, the code entails that “a search by a police officer outside the limits of his police
station and in the circumstances in which he is not authorised to do so under Section 166 (3), is
without legal authority and hence, illegal”.

3. Effect of Non-adherence of Search Procedure

The code abounds with several kinds of searches to be conducted by the police officers. For
instance, search of the accused after the arrest, search of the crime scene after receiving
information, a search of a place suspected to contain evidence, etc. Some of these searches are with
the warrant and some are without a warrant.

The code renders a standard procedure to be followed in every case of search under Section
100 whereas Sections 165 and 166 deal with procedure with respect to search to be conducted
without a warrant. The Allahabad High Court in Sharda Singh v. the State of U.P., observed that
these procedures are mandatory in nature and any contravention will render the search illegal or at
least irregular.
In Musheer Singh v. State of Madhya Pradesh, the apex court observed that certain facts
discovered out of illegal or irregular search can be admissible if they are reliable. It can be inferred
from this pronouncement that contravention of search procedures is not prima facie illegal and does
not vitiate the trial in its entirety. As in Radha Kishan v. the State of U.P. it was held that the

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 effect of any procedural irregularity under the code has to be tested on the touchstone of it
prejudicing the accused person in his defence. It means that if the irregularity in search procedure
does not allow the accused to defend himself completely, such irregularity may vitiate the trial.

For instance, the panchas brought as a witness to search procedure is not independent but the
complainant itself, such procedure will not allow the accused to defend himself because the
prosecution is the witness to the procedure which was supposed to be fair.

According to Section 465 of Cr.P.C, “no finding, sentence or order passed by a court of
competent jurisdiction shall be reversed or altered by the same court or by a higher court only
because of an error, omission or irregularity in the issue of warrant unless it has occasioned a failure
of justice against the accused”. The test to determine the failure of justice has been provided
in Section 465 (2) where the Code states that if an objection could and should have been raised by
the accused at an earlier stage of the proceeding and he failed to do so, this fact shall be regarded
while considering the failure of justice.
The Supreme Court in Shyam Lal Sharma v. State of Madhya Pradesh observed that
“this court has not finally decided whether a search already made in contravention of the provisions
of Cr.P.C makes it illegal or void or merely provides a justification for an obstruction to the search
when it is intended or in the process of being conducted” . On the finding of the case in hand, the
apex court refused to resolve this doubt and the question still remains unanswered even today.

4. Search with Consent of the Occupant

“If the entry into the place of search and the subsequent search is with the consent of the
occupant of such place, the search and recovery will not be affected on the ground that the search
procedure under Sections 100 and 165 were not followed”.
In Malak Khan v. Emperor, where it was alleged and proved that the articles were
produced by the accused person himself, the Privy Council held that Section 165 does not apply.

5: COMPLAINTS TO MAGISTRATES

Meaning and Purpose of Complaint and the Difference Between an FIR and a Complaint

In our day to day lives, we often use the terms FIR and complaint interchangeably stating
that “complaint is lodged before police” or “FIR is lodged before police” as per our understanding
and convenience. However, in criminal jurisprudence, the two expressions have an entirely different
meaning and are used in completely different senses.

There are several differences between the two, inter alia, the main being that FIR is lodged
before the police while the complaint is lodged before a Judicial Magistrate.

Introduction
A First Information Report (FIR) is the absolute initial phase in the criminal issue where
the realities of the commission of wrongdoing are accounted for to the police by the individual who
is an observer to the case, unfortunate casualty or an individual who has information on a similar
demonstration done by the charged person.

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 The meaning of the FIR is given in the Code of Criminal Procedure, 1973 under Section 154
of the Code which expresses that each data identifying with the commission of a cognizable
offence, whenever offered orally to an official responsible for a police headquarters, will be
diminished to composing by him or under his bearing, and be perused to the witness; and each such
data, regardless of whether given recorded as a hard copy or decreased to composing as previously
mentioned, will be marked by the individual giving it, and the substance thereof will be entered in a
book to be kept by such official in such structure as the State Government may endorse for this
sake.

The tern complaint is defined under Section 2(d) of the Code. A “complaint” signifies any
charge made orally or recorded as a hard copy to a Magistrate, with a view to his making a move
under this Code against some individual, regardless of whether known or obscure, has submitted an
offence, however, does exclude a police report.

A report made by a cop for a situation which uncovers, after examination, the commission of
a non-cognizable offence will be regarded to be a complaint; the police officer by whom such report
is made will be considered to be the complainant.

Cognizance of an FIR and Complaint

FIRs can be enlisted by an injured individual, an observer of an offence or whatever other
individuals who know about the wrongdoing. According to the arrangements of Section 154 of the
CrPC the informant can express the realities about the offence either recorded as a hard copy or
Oral.

On account of Hallu v. State of Madhya Pradesh, it was held that the Section 154 doesn’t
necessitate that the Report must be given by an individual who has individual information on the
episode announced. The provision discusses data identifying with the commission of a cognizable
offence given to an official accountable for a police headquarters.
When the realities about the commission of wrongdoing are expressed by an individual, the
police from that point read the substance of the FIR to the Complainant on the off chance that it is
accounted for in an oral way.
A Magistrate can take cognizance of an endless supply of a complaint or something else,
from that point he analyzes the objection by inspecting the realities and the observers. On the off
chance that he finds that the complaint is with merits, the case is esteemed dedicated for preliminary
and the officer gives the procedure.

In the event that the offence is only triable by the Court of Session, the Magistrate submits
the case to Court of Session. On account of a first data report, the offence included is of cognizable
nature and in this manner, the police have the position to start the examination in the said case
without earlier consent from the Magistrate and afterwards record a charge sheet.

Then again, when a Magistrate takes the insight of an offence based on a complaint, he
arranges an examination in the issue and can likewise guide the police to hold up an FIR on the off
chance that he feels that the offence is of a genuine sort.

Difference Between FIR and Complaint

The primary concern of distinction between an FIR and a complaint is that an FIR identifies
with a cognizable offence though a complaint can be petitioned for both cognizable and non-
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 cognizable class of offences. Despite the fact that FIR is like a complaint, there are contrasts as far
as offences they manage, disciplines, lawful results, evidentiary worth, and so forth.

Further, the FIR is required to be held up at the police headquarters close by the spot of the
commission of the wrongdoing, while the complaint can be documented with a Judicial or
Metropolitan Magistrate, with the end goal of mentioning activity on it.

As per Section 2(d) of the Code of Criminal Procedure, 1973, a complaint is a claim that
some individual has carried out an offence.
Further, a complainant and a first witness need not be a similar individual. Indian criminal
laws don’t give any exacting structure to an objection, and in this manner, a sworn statement or a
request may likewise add up to a complaint in the official courtroom. On the contrary, the FIR is,
for the most part, is a pre-characterized design.

At the point when a witness moves toward the police specialists to advise about the
commission of a cognizable offence, it is called recording a complaint. This data as a complaint,
when enlisted, as per 154 of the Code of Criminal Procedure, 1973, turns into an FIR. As it were,
subsequently, the complaint is a phase preceding the FIR.

A Magistrate can take the insight of a complaint as indicated by Section 190 of the Code of
Criminal Procedure, 1973. At the point when a Magistrate takes the insight of an (endless supply of
a complaint or else), he looks at the complainant as per Section 200 by analyzing the realities and
the observers.

In the event that he finds that the complaint is with merits, the case is esteemed dedicated for
preliminary and the judge issues either the request or the warrant under Section 204. In the event
that the offence is solely triable by the Court of Session, the Magistrate submits the case to Court of
Session under Section 209.

On account of an FIR, the offence included is of cognizable nature and accordingly, the
police have a position to start the examination in the said case without earlier authorization from the
Magistrate and afterwards record a charge sheet.

Then again, when a Magistrate takes the perception of an offence based on a complaint, he
arranges an examination in the issue and can likewise guide the police to hold up an FIR in the
event that he feels that the offence is of a genuine sort. He can follow up on the protest just on the
off chance that it uncovers a by all appearances commission of an offence.

In P. Kunhumuhammed v. State of Kerala, the Hon’ble High Court of Kerala held that
the report of a police officer following an examination in opposition to Section 155(2) could be
treated as complaint under S. 2(d) and S. 190(1)(a) if at the beginning of the examination the police
personnel is persuaded that the case included the commission of a cognizable offence or if there is
any uncertainty about it and examination builds up just commission of a non-cognizable offence.
On account of the FIR, the police are approved to explore the issue and afterwards look and
hold onto the proof they find. The police at that point continue to record a charge sheet against the
blamed in the Court under Section 173 of the Code of Criminal Procedure, 1973 toward the finish
of in the examination. The court at that point settles on the charges.

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 The Officer responsible for a police headquarters, may on receipt of a complaint by a source
that uncovers a non-cognizable offence submitted inside the points of confinement of its ward, enter
the substance of the case in the station journal and allude the witness to move toward the concerned
Magistrate on whose request just can the police explore such cases with indistinguishable forces
from practised in a cognizable case, aside from the ability to capture without warrant.

Where a case identifies with at least two offences of which one is cognizable, at that point
the case will be viewed as a cognizable offence, despite the way that different offences are non-
cognizable.

Procedure of Issue of Process and Examination of Complainant when a Complaint is Filed

Before a Magistrate

Introduction
At the point when the complaint recorded in a written format, i.e. in a documented manner
and is registered in the Court, the Magistrate after examination of the complaint, registers it, and
subsequent to enlisting it, the averments or any assertion of the complainant under Section 200
CrPC 1973 is recorded around the same time and the case is fixed for recording averments of the
witnesses under Section 202 of the Code of Criminal Procedure, 1973 for some other day.

In the wake of recording the proof available under Section 202 CrPC of the observer or
witnesses, by and large, the case is fixed for contentions on bringing. Having heard the contentions,
the case is fixed for hearing on an appropriate date.
In the event that the Magistrate finds or fulfils that prima facie offence is made out against
the blamed individual and every fundamental element for claimed offence are mentioned and duly
explained in the written complaint, the Magistrate issues processes under Section 204 of the CrPC
1973 against the accused.

Then again, if the Magistrate is of the opinion, after examination of proof under Sections.
200 and 202 CrPC, 1973 that no prima facie offence is made out and there is no adequate ground
for continuing, he may dismiss the complaint under Section 203 CrPC.

Be that as it may, according to provisions of Part XV of the Code of Criminal Procedure,

1973, the method of the criminal complaint is not the same as the above general practice in the
Courts. Presently, we take up the arrangements of Chapter XV of the CrPC 1973. At first, it will be
proper to talk about the statutory arrangements of the Code.

Examination of the Complainant

A judge taking cognizance of an offence on criminal complaint will examine upon pledge or
vow, the complainant and witnesses present (assuming any) and the substance of such assessment
will be diminished into written format and will be verified by the complainant and witnesses and
furthermore by the Magistrate and they shall authenticate their truth by signatures.

Save that, when the complaint is made in a written document, the Magistrate need not
analyse the complainant because the complaint in itself can be considered as the statements of the
complainant. In the event that a police officer acting or implying to act in the released of his official
obligations of court submits the complaint in issue, or if the Magistrate puts forth the complaint
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 about enquiry or trial to another Magistrate under Section 192 for the purpose of examination of the
complainant, the Magistrate need not rethink them.

The technique of being embraced when a complaint is recorded is as follows and is provided
under Section 200 of the Code:

 It is occupant on the Magistrate taking cognizance of the complaint to conduct a

hearing specifically to examine the complainant and/or witnesses produced by the complainant (if
any) at adequate length to satisfy himself that there is bona fide case and the complaint is not
frivolous. A trial is a very lengthy and complex process and therefore, it is vital that all precautions
be taken to ensure that a malign or malicious case has not been commenced by the complainant.
Therefore, the examination of the complainant is extremely momentous.
In the wake of recording articulations and averments made by the complainant and/or his
witnesses individually under Section 200 CrPC, the Magistrate has three choices:

 He may issue a process in the nature of a summons or a warrant depending on the

circumstances of the case, under Section 204 CrPC, 1973; if at the first sight, the offence is made
out and if the alleged denounced person is dwelling inside the territory to which the jurisdiction of
the Magistrate applies OR
 He may dismiss the complaint under Section 203. If the complaint fails to fulfil all the
procedural elements under Section 190, the Magistrate may dismiss the complaint. Further, if the
complaint is one filed before the Magistrate in the form of a police report in case of a non-
cognizable offence, the Magistrate shall simply look whether the investigation has disclosed any
culprit or accused person and if there is sufficient evidence to proceed against the person the
complaint shall be accepted OR
 He may delay or postpone the procedure of issuing the summons or warrant to the
accused person if the Magistrate believes that there is need to examine the complainant and/or
witnesses further to ensure the involvement of the accused. In such a case, the Magistrate shall fix a
date for examination and if upon such examination, he is satisfied that a case is made out, the
process can be issued.
Subsequently, after the complaint is registered by the Magistrate, a date is fixed for the
examination of the complainant and the witnesses, if any, before the Magistrate. However, if the
complainant fails to appear before the Magistrate for examination, the Magistrate is empowered it
dismiss the complaint. In criminal law, a lot of things and considerations need to be considered
before an order is made.

A complaint is usually filed in a non-cognizable case in which the police does not have the
power to investigate without the Magistrate’s order. A non-cognizable case is usually in the nature
of a private conflict between two persons and is not literally against the State.

For instance, dishonour of a cheque is a non-cognizable offence under the Negotiable

Instruments Act, 1881 which is between the debtor and the creditor. Therefore, if the complainant
does not appear for the examination, it is presumed that the complaint was either frivolous or no
grievance exists with the complainant.
However, the mere absence of the complainant does not give the court the right to dismiss
the complaint. The Magistrate must give the complainant an opportunity to explain the reason for
his absence. In Padam Singh Saini v. Megh Singh, the Magistrate dismissed the complaint filed

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 under Section 138 of the Negotiable Instruments Act, 1881 because the complainant was absent
from the examination.
The High Court observed that the absence was due to an inadvertent circumstance which
should have been considered by the Magistrate. Thus, if the complainant can prove or show that his
absence was due to unavoidable circumstances, the Magistrate should ideally condone such
absence.

Issue of Process in Complaint

It has been explained above that the Magistrate has three choices to make after the complaint
is registered, i.e. (a) to issue process, (b) to dismiss the complaint and (c) to postpone the issue of
process. This section deals with the procedure and needs for the issue of process under CrPC in a
complaint case before the Magistrate. Once the Magistrate is satisfied that the complaint is genuine
on the examination of complainant and witnesses (if any), the Magistrate shall issue process to the
accused person(s).

The term process is a legal expression used for any document to be served upon a person
with the intention of producing the person before the court. Processes are of two types, viz.
summons and warrant.

A summons is a formal statement by the court under its seal and signature ushering the
person to whom it is served to be present before the court on the date and time stipulated in the
summon to explain any facts or circumstances known to him related to the case in the issue of
which he has the personal knowledge.

On the other hand, a warrant is an instruction to the police officer of the police station to
which the warrant is served to arrest a person named in the warrant and produce him/her before the
court on the specified time and date. The police officer shall make the arrest and detain the person
until the date of the hearing.

The issue of processes depends completely on the nature of the case. If the offence alleged
bring out a summons case, the Magistrate is obliged to serve a summon to the accused whereas if
the offence alleged makes a warrant case, the Magistrate is empowered to issue a warrant of arrest.
Besides these, the issue of the process depends upon several circumstances.

If the accused has been known to be absconding with the intention to flee from justice, the
Magistrate shall issue a warrant for his arrest and declare the accused as a ‘proclaimed offender’.
Moreover, if the Magistrate believes that the person is likely to abscond or attempt to destruct any
evidence or influence a witness, he may issue a warrant of arrest.

The main object of issuing process under CrPC is to allow the accused to explain
circumstances within his personal knowledge to the court to enable the court to take an impartial
and fair judgment. For instance, if an offence is committed for private defence or if the person has
been falsely implicated in a case while he was not even present at the scene of crime and has a very
authentic alibi, he may explain all these circumstances to the Magistrate when the summon or
warrant is served and he is produced before the court. After the issue of process, the trial
commences like any criminal case.

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Procedure of Dismissal of Complaint under the Code of Criminal Procedure, 1973

Introduction
Section 2(d) defines a complaint as a form of the allegation made against a certain person
either acquainted with the complainant or a stranger, requesting the Magistrate to inquire into the
same and cause it to be investigated by appropriate authorities. Thus, the essential of a valid
complaint is that it must allege the occurrence of an offence which is punishable under the IPC or
any other penal law.

Secondly, the complainant must mention the name of a person who allegedly committed the
offence or if the person was not known to him, the complainant can provide any identification of the
person which could be helpful in recognising the person. Lastly, the intention of the complainant
must not be just to give information to the Magistrate but the intent must be to request the
Magistrate to take certain action into the commission of such offence.

In a case in West Bengal (since the complaint was dismissed, it is not reported) in 2019, a
wife named Mrs Saroj Gupta filed a complaint under Section 506 of the IPC for the offence of
criminal intimidation asserting that her husband threatens her to commit suicide. This was a fit case
of criminal intimidation but, however, the complainant said that she wanted the Magistrate to just
mention the fact of such threat and not take action.

The complaint was dismissed and the Magistrate observed that the power and procedure to
record complaint cannot be used as a proof for personal gains or safety. It is the process of criminal
investigation and the first step to trial. Thus, if any of the above elements are not mentioned in the
complaint or omitted from the complaint, it can be dismissed.

Procedure after Filing Complaint

Section 203 of the Code of Criminal Procedure, 1973 deals with the dismissal of the
complaint and the provision commences with the expression that “after the complainant and
witnesses have been examined and report of the investigation has been submitted…”.
This means that this provision cannot be explained without dealing first with the process of
filing the complaint and the procedure followed after the complaint is filed.

Section 190 of the CrPC empowers a Magistrate to take cognizance of an offence brought to
his/her notice by filing a written or oral complaint by a person. Moreover, if a police officer has
investigated a case believing it to be of a cognizable offence which turned out to be non-cognizable,
the report of investigation filed by the police officer can be treated as a complaint and the
Magistrate is empowered to take cognizance of such complaint as well under Section 190.

These are the two ways in which a complaint reaches a Magistrate. After the complaint is
received, the Magistrate registers the complaint and make a note to this effect and the complainant
is asked to be present on a specific date and time.

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 The next procedure is to examine the complainant to ascertain the truth of his averments and
to ensure that a valid case can be made out against the accused person. Section 200 of CrPC
empowers and mandates for the Magistrate to examine the complainant and any witnesses who have
been produced by the complainant on oath to state only the truth.

The Magistrate shall record everything that the complainant avers as his case and the same
shall be recorded in written format to be signed by both the parties. Further, the witnesses shall be
recorded in the same manner and their assertions shall also be verified by their signatures.

According to the provisions of section 190 (1) (a) of the Code the comprehension, possibly
taken after accepting a complaint of such circumstances which comprises an offence. At the end of
the day, we can say that when a composed complaint unveiling an offence is recorded under the
watchful eye or guidance of a Magistrate or a Court and when the Magistrate makes registration of
such complaint as aforesaid for recording the assertions or any averments of the complainant and
the observers, witnesses or other persons present, if any, under section 200 of the Code, the
Magistrate is esteemed to have taken the cognizance of the offence.

With regard to cognizance by Magistrate, the Supreme Court observed in CREF Finance
Ltd. v. Shree Shanthi Homes Pvt. Ltd. that when the Magistrate registered the complaint and
fixed date of hearing, it is deemed that cognizance is taken and it is not required for the Magistrate
to specify that cognizance has been taken by separate order.
Reasons for Dismissal of Complaint
The first requirement for dismissal of the complaint is that the Magistrate must apply his
mind while taking any decision and making an order of dismissal. This does not mean literally he
should apply his mind.

It means that the Magistrate must look into all the reasons for dismissal with no prejudice
and grant all possible opportunity to the complainant to save the complaint from being dismissed.
There are several reasons for the dismissal of a criminal complaint, inter alia, most essential of
which are as follows:

1. Failure to Fulfil Requirements of Section 200:

Section 200, as already mentioned, requires that (a) there must be certain allegation of
commission of an offence, (b) there must be name of the accused person or any other information
known by the complainant about the alleged offender and (c) intention that the Magistrate shall
cause to investigate the case in the complaint that shall be submitted by the complainant.

If the complaint fails to fulfil all these elements, the Magistrate may dismiss the complaint.
Now, if the complaint is one filed before the Magistrate in the form of a police report in case of a
non-cognizable offence, the Magistrate shall simply look whether the investigation has disclosed
any culprit or accused person and if there is sufficient evidence to proceed against the person the
complaint shall be accepted.

2. Absence of Complainant from Examination

As aforementioned, after the complaint is registered by the Magistrate, a date is fixed for the
examination of the complainant and the witnesses, if any, before the Magistrate. However, if the

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 complainant fails to appear before the Magistrate for examination, the Magistrate is empowered it
dismiss the complaint.

In criminal law, a lot of things and considerations need to be considered before an order is
made. A complaint is usually filed in a non-cognizable case in which the police does not have the
power to investigate without the Magistrate’s order. A non-cognizable case is usually in the nature
of a private conflict between two persons and is not literally against the State.

For instance, the bouncing of a cheque is a non-cognizable offence under the Negotiable
Instruments Act, 1881 which is between the debtor and the creditor. Therefore, if the complainant
does not appear for the examination, it is presumed that the complaint was either frivolous or no
grievance exists with the complainant.

However, the mere absence of the complainant does not give the court the right to dismiss
the complaint. The Magistrate must give the complainant an opportunity to explain the reason for
his absence. In Padam Singh Saini v. Megh Singh, the Magistrate dismissed the complaint filed
under Section 138 of the Negotiable Instruments Act, 1881 because the complainant was absent
from the examination.
The High Court observed that the absence was due to an inadvertent circumstance which
should have been considered by the Magistrate. Thus, if the complainant can prove or show that his
absence was due to unavoidable circumstances, the Magistrate should ideally condone such
absence.

3. No Case Made Out

After the complaint has been registered and the complainant and/or witnesses have been
examined, the Magistrate shall pass an order whether a suitable case exists for investigation or not.
If the Magistrate feels or is of the opinion that no prima facie case is made out against the alleged
offender, he may dismiss the complaint.
For instance, if the basic requirements, i.e. the sine qua non of the offence is not fulfilled
according to the statements of the complainant, then the offence is not committed; such as in a case
of dishonour of cheque under Section 138 of Negotiable Instruments Act, 1881, if the demand
notice was not sent by the complainant or there unreasonable delay in sending the notice, the
complaint shall be dismissed since no legal case is made out.
4. Insufficient Evidence or Adverse Police Report

If the Magistrate considers that the sine qua non of the alleged offence has been duly proved
or sufficiently proved to enable the Magistrate to order an investigation in the case, he shall do so.
Under Section 156(3), the Magistrate can order a police officer of the police station in whose
jurisdiction the offence was alleged to have been committed to initiate an investigation and collect
evidence to prove the incrimination or innocence of the named accused.
The police are empowered to investigate the matter under Section 156 as it would if the case
was of cognizable nature. After the end of the investigation, the investigating officer submits a
report to the Magistrate informing him of the offence committed, the manner in which it was
committed, evidence and/or witnesses who can testify anything related to the commission of the
offence.

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 If the police file a report according to which the offence has not been committed by the
accused person or that there is insufficient evidence to prove the guilt of the accused beyond a
reasonable doubt than the complaint has to be dismissed and the accused is arrested shall be
acquitted and discharged immediately.

Procedure to be Followed for Dismissal

There is no specific procedure prescribed by the Code to be followed if a complaint is to be
dismissed. The code only requires that reasons for such dismissal must be recorded. However,
equity requires that certain procedure needs to be followed before dismissal.

If the Magistrate is of the opinion that the complaint is frivolous or deserves to be dismissed
for any of the above-stated reasons, the Magistrate firstly should allow the complainant to save his
case if any additional documents or evidence can be brought before the court. If an adequate
opportunity is given to the complainant but no case is still made out against the alleged offender, the
Magistrate shall dismiss the complaint.
The reasoned decision has been held to be a principle of natural justice which connotes that
a judge or any court must give reasons for the orders passed by it. In Mehmood Ul Rehman v.
Khazir Mohammad Tunda, the apex court observed that the Magistrate shall pass a speaking
order dismissing the complaint and shall briefly mention the reasons for dismissal in the order itself.
If the reasons are not stated, the complainant is entitled to appeal the order for violation of
natural justice principle. However, if a complaint is duly dismissed, the case ends and the accused
person(s) are deemed to be acquitted of all charges.

6: BAIL AND ANTICIPATORY BAIL

Provisions of Cr.P.C related to Mandatory and Discretionary Bail

Bail can be a matter of right or privilege granted by the courts. It is always dependant upon
the nature and gravity of the offence. Therefore, the Code of Criminal Procedure, 1973 entails for
two types of bail on the basis of the gravity of the offence; Mandatory Bail and Discretionary Bail.

A person may demand his liberty as a matter of Constitutional Right and also by the virtue
of being a human being. But, with the passage of time, liberty would mean differently to each soul.
Thereby, the need for a social contract between the state and its people.
The Right of a person to move freely is very well inscribed in the words of the Constitution
under Article 21, prohibiting the deprivation of a person’s liberty. However, this liberty is subject to
the rules of the society or in a legal sense, the laws made by the parliament. And when such laws
are violated by a person it may result in the commission of an offence under the Indian Penal Code,
1860. However, the nature of the offence is the determinant of whether the person is “enlarged on
bail”.

Enlarged on Bail
The phrase enlarged on bail necessarily means that the person shall/ may depending on the
nature of the offence will be released in return of the security. This security is taken by the
magistrate who is empowered to release a person on bail on in return of a bail bond. This bail bond
is the amount paid by the accused with or without sureties as declaring that he/she shall be available
and produce himself in any inquiry or trial and not flee or absent oneself during such occasions.
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Bail: It’s Meaning
Bail is a declaration made by the accused that he shall not flee if enlarged on bail and shall
not absent himself from any inquiry or legal proceeding he is required to attend. The court if deems
fit may pass an order to enlarge the person on bail. For a deeper understanding, it needs to be stated
that Bail is of two types

 Mandatory Bail
 Discretionary Bail
The provisions specifically dealing with Mandatory Bail is Section 436 of the CrPC. This
provision entails that the person arrested without the warrant of the officer of the court, the person
shall be released on bail. Since this is a ‘shall’ provision it needs to be understood that the discretion
of the court does not apply in such a provision.
The word ‘shall’ indicates that it is a matter of right of the accused if he is not charged with
a non-bailable offence he has to be released or enlarged on bail. This provision further gives a right
to the accused person that he may further be released only on the basis of executing a bond and the
requirement of sureties to the bond is not required. Since this provision clearly reflects that the bail
under this is a matter of right and there is no discretion of the court. Therefore this bail becomes a
Mandatory Bail.

On the other hand, ‘discretion’ entomologically means that ‘to be able to circumspect’. In
simple terms, the court under section 437 envisages the power to use its mind while determining
whether the accused person should be enlarged on bail.

Now under section 437 of CrPC, it is stated that under certain conditions bail may be taken
for a Non-Bailable offence however it is a nugatory provision. Which means that it stated certain
conditions when bail cannot be granted and they are:
 That an accused need not be enlarged on bail if there are reasonable grounds to believe
that the person is involved in the commission of an offence which is severe in nature. The severity
is marked by the threshold of two punishments, namely, life imprisonment and capital punishment
or execution.
 That the accused may not be enlarged on bail if the accused’s previous convictions
entail that he/she has been convicted of an offence which is punishable for seven years or more
under the IPC and is a cognizable offence.
 However, the proviso protects an accused who is below the age of sixteen years, or is
a woman or is sick or infirm in any way. Thereby this provision contains certain protection provisos
as well.
 Since it is a discretionary bail the court may use its discretion and if under the
circumstances of the case believes that it shall be just and proper to release the person on execution
of the bond it may do so.
 It furthermore, highlights that the mere fact that the accused needs to be identified in a
Test Identification Parade cannot be a sole reason for denial of the bail.
 But keeping in line, that the accused may flee or absent himself, to ensure non-
occurance of such an incident the accused shall execute a bond ensuring that he shall not flee away
at times when he is required to present himself.
 The provision states that if within sixty days of his arrest if it is seen that the trial of
such person who is charged with a non-bailable offence is concluded from the date fixed for taking
evidence, the magistrate on his accordance if he deems fit, may release the person on bail.

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  This provision further includes that at any point of the trial the court has reason to
believe that the person accused charged with the non-bailable offence and has reasonable grounds to
believe so then at its discretion may release the person on executing a bail bond without sureties.

Section 439 of CrPC

This provision is different from section 437 because this provision is court specific. It only
applies in a Court of Sessions and a High court. But this provision is no different from section 437,
this also gives discretionary power to the abovementioned courts to grant bail to a person, subject to
the conditions imposed by the court itself.

This provision is only applied to persons who are charged with any offence mentioned under
section 437(3) of CrPC. Further, this provision also empowers the court of sessions and high court
to bring into custody an accused released on bail.

Section 438 of CrPC

The nature of bail envisaged under this provision is entirely different from any of the other
provisions mentioned above. However, one peculiar feature remains the same. That is the power of
the court to exercise its discretion to grant such bail.

Now, this provision mainly comes in effect when a person who has an apprehension that he
may be charged with commission of an offence, and he has a reason to believe that such allegation
is false and frivolous then this provision comes to act as a safety net for such persons who may be
arrested on to pretext of false allegations by a person whose intention may be merely to tarnish the
reputation or cause hardships in the life of the person.

Therefore this provision is protection or a safeguard for such persons. But for a court to
grant such anticipatory bail becomes equally difficult. Because while hearing such bail application
it is only one side of the incident which is narrated to the court. Therefore it is a duty imposed upon
the court to very cautiously allow such grant of bail called the “Anticipatory bail”.

Difference between Mandatory and Discretionary Bail:

From the above-mentioned bails, it is very clear that mandatory bail is a matter of right
given to a person who is accused of a bailable offence in the CrPC itself by the legislature to ensure
that a person is not deprived of his liberty in times of accusations which may not be very serious in
nature.

Due to its not very serious and grave nature, it is the right of a person to take to his
advantage such a right which gives him his liberty also guaranteed under Part III of the
Constitution. The list of bailable offences is provided for under the first schedule of the CrPC.
On the other hand, discretionary bail as the name itself suggests gives a discretion to the
court to apply its judicial mind and only then decide whether an accused is worthy of the grant of
bail by the court. It is only if the court sees that there is a reasonable ground that he may be released
on bail since the person is charged with the commission of a Non-bailable offence.

Now, these offences are more grave and serious in nature, therefore, bail is no longer a
matter of right whereas its nature is that of privilege and only court at its discretion may grant bail
to a person accused of a non-bailable person.

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 It is only when the court is of the view that the accused will not tamper or interfere in the
course of investigation for a free and fair trial and has reason to believe that the person under no
circumstances shall flee or absent himself when his attendance is required only under such
circumstances the court may grant bail to the person.
Therefore, it needs to be understood that when bail kept juxtaposing to the commission of an
offence, bail is a way in which the liberty of a person is protected and safeguarded. However, when
a person commits an offence like rape or murder which is grievous in nature, this same person
becomes a threat to the society as well as the completion of an investigation and under such
circumstances, it is required by law to deprive such person of his liberty to safeguard the entire
society at large. Therefore, there are two types of bail tailor-made to the needs of society.

Guidelines And Procedure For Grant Of Bail Under Cr.P.C

Introduction
Article 21 of the Indian Constitution prohibits the deprivation of personal liberty of a person
by any act of the State or its instrumentalities. Bail is one such measure to ensure that no one is
unnecessarily detained and deprived of their personal liberty.
The Criminal Procedure Code, 1973 provides for the guidelines and procedure that a trial
court should consider during the grant of bail. Grant of bail, in any case, depends upon the nature of
the offence accused of. If the offence is bailable under Schedule I of the Code, bail is a legal right
and guidelines and procedure for grant of bail is not rigid whereas if the offence is non-bailable,
several determinants need to be conformed to.

What is Bail?
Bail is often confused as a process of release of an accused while the trial is pending.
However, when a person is enlarged on bail, it is simply said ‘he is released or enlarged on bail’.
Bail is not the process of release but the amount of money paid by an accused to the judicial
authority for the grant of bail. The court is also empowered to order the accused to execute a bond
with or without sureties besides the bail amount for his release.

Bond is a personal declaration by the accused person that he will attend the trial or inquiry
whenever he is required and will not be absent from such proceedings. If the accused does not
attend the proceeding even after the bond and bail, he may be arrested and his future applications
for bail may be rejected.

Pre-requisites to Grant of Bail

First of all, it has to be noted that bail is of two kinds, Mandatory Bail and Discretionary
Bail. Section 436 of Cr.P.C deals with the guidelines and procedure for grant of mandatory bail
while Section 437 provides for the grant of discretionary bail. These provisions deal specifically
with the powers of the Courts of Judicial Magistrates to grant bail and do not apply to Sessions
Court and High Court. Section 439 empowers the Court of Session and High Court to grant bail in
certain circumstances.
The Hon’ble Supreme Court in the case of State of Maharashtra v. Sitaram Popat
Vital observed certain factors that the courts should consider while deciding whether bail should be
granted or not.

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 “Firstly, the nature of accusation and the severity of punishment in case of conviction and
the nature of supporting evidence, secondly, reasonable apprehension of tampering of the witness or
apprehension of threat to the complainant, thirdly, prima facie satisfaction of the Court in support of
the charge” .

Guidelines and Procedure for Mandatory Bail

The Code states that “when a person is arrested by a police officer without a warrant for the
commission of an offence which is bailable in nature under the Cr.P.C, the accused has a right to be
released if he is willing to furnish the amount of bail. This right to be released on bail can be
exercised either when the person is under police custody or when he is brought before the
Magistrate for remand”. The essential guidelines for grant of bail under Section 436 can be
enumerated as follows:
1. The offence accused of must be shown as bailable under Schedule I to the Cr.P.C.
2. If the offence is not one punishable under the Indian Penal Code, 1860, it must be
made bailable by the statute that creates the offence. If the statute is silent on the nature of the
offence, the seriousness of the offence is taken into consideration. If the offence is punishable with
an incarceration period of fewer than three years, it is considered to be less heinous and hence,
bailable.
3. The accused must be arrested without a warrant and he must be under the custody of
the police to allow the Magistrate to grant bail.
4. The accused must be ready and willing to furnish the amount of bail as decided by the
concerned Magistrate.
If the Magistrate is of the opinion that the above guidelines have been followed and the
accused is entitled to be released and he is willing to furnish the bail amount, the Magistrate shall
follow the procedure described in Section 436 (1) and (2) to grant bail.

1. The Magistrate shall release the person as soon as he pays the bail amount.
2. The Magistrate may impose any condition to such bail which the accused, while he is
released on bail, must fulfil. For instance, the most common condition is to prove his presence to
the nearest police station from the place of his residence every week during the period of release.
3. If the Magistrate believes that the offence committed is petty in nature and/or the
accused is not likely to abscond from justice, he may discharge the accused on executing a bond for
his presence during the trial with or without sureties instead of a bail amount.
4. The Magistrate can also impose conditions when the person is released on bond in lieu
of bail.
5. Further, if the accused fails to comply with conditions of bail or bond and does not
appear before the court on the given time and place, the court may refuse to release him on bail in
any subsequent applications.

Guidelines and Procedure for Discretionary Bail

According to Section 437, if a person is arrested without a warrant for the commission of an
offence which is non-bailable in nature, the grant of bail is completely at the discretion of the trial
court, i.e. the court of Judicial Magistrate. The section provides certain guidelines to be followed
while granting bail in a non-bailable offence.
1. The offence accused of must be shown as non-bailable under Schedule I to the Cr.P.C.
2. If the offence is not one punishable under the Indian Penal Code, 1860, it must be
made non-bailable by the statute that creates the offence. If the statute is silent on the nature of the
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 offence, the seriousness of the offence is taken into consideration. If the offence is punishable with
an incarceration period of three years or more, it is considered to be a grave offence and hence, non-
bailable.
3. The accused must be arrested without a warrant and he must be under the custody of
the police to allow the Magistrate to grant bail.
4. The accused must be ready and willing to furnish the amount of bail as decided by the
concerned Magistrate.
5. The court must not have the option to trust that the person accused of an offence is
guilty of an offence punished with capital punishment or life incarceration.
6. The offence must not be a cognizable offence or there must not be the trace of any
recidivism specifically of an offence punishable with the incarceration of seven years or more
including the death penalty.
7. The accused person should not have prior convictions amounting to more than one and
such convictions must not include a heinous offence.
As it is crystal clear from the above list that bail in case of the non-bailable offence goes
through a rigid process and the courts must conform to all the guidelines stated above before
deciding on the question of bail. After the court is satisfied that the above guidelines have been
followed, the following procedure needs to be adhered to when finally bail is granted.

1. The judicial authority may enlarge the accused on bail if the above guidelines are
conformed to and the accused person is ready and can afford to pay the bail amount.
2. It may allow a person referred in clause (v), (vi) and (vii) of the above guidelines to be
discharged in special circumstance is the person is a minor below sixteen years of age or is
irresolute.
3. The court may also release any person referred above if the court believes that there is
any special reason for doing so which must be stated in writing.
4. The court should not refuse the bail to any person on the ground that his attendance is
required for identification by the victim or the witnesses. The accused can be brought for
identification while he is on bail at the requisite place whenever required.
5. If the court has reason to believe that though sufficient grounds exist to indicate the
guilt of the accused, further inquiry and investigation is still required to prove his guilt, the court
may release the accused on bail.
6. Further, if the accused is not likely to abscond from justice, the Magistrate may
discharge the accused on executing a bond for his presence during the trial with or without sureties
instead of a bail amount.
7. The Magistrate can also impose conditions when the person is released on bond in lieu
of bail.
8. Further, if the accused does not adhere to the prerequisites of bail or personal bond
and does not appear before the court on the given time and place, the court may refuse to release
him on bail in any subsequent applications.
Besides the above procedure, the courts have also laid down additional procedures while in
their efforts of interpreting these provisions. The Hon’ble Supreme Court in the matter of Ram
Govind Upadhyay v. Sudarshan Singh and Ors. “while considering various factors for grant of
bail has analyzed the scenario where the applicant has already been in custody and the trial is not
likely to conclude for some time, which can be characterized as unreasonable” , bail could be
granted in such circumstances.

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 With respect to imposition of condition on grant of bail or execution of bond, the Supreme
Court in Sumit Mehta v. State of NCT of Delhi observed that the expression ‘any condition’
mentioned in Section 437 (3) “should not be regarded as conferring carte blanche on a Court of law
to impose any condition that it chooses to impose” . The court held that “any condition has to be
interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and
effective in the pragmatic sense and should not defeat the order of grant of bail”.

Power of the Court Of Session And High Court In Granting Bail

It is the general rule that every criminal proceeding has to first commence before the court
of Judicial Magistrates prior to reaching any higher court.

Even an offence which is exclusively triable by the Court of Session must be first heard and
committed for trial by a court of Judicial Magistrate under Section 209 of the Criminal Procedure
Code, 1973. Similarly, the power to grant bail is vested upon the Judicial Magistrates. However, by
virtue of Section 439, the Code bestows special powers upon the Courts of Session and High Courts
to grant bail to any person accused of a non-bailable offence.

Scope and Applicability

Special powers have been vested upon the Courts of Session and High Courts to grant bail to
an accused arrested by the officer in charge of a police station for the commission of a cognizable
offence. The powers with these superior courts are very wide and completely at the discretion of the
courts. In Kali Das v. SHO, Police Station, Reasi, the Jammu and Kashmir High Court observed
that any person who surrenders himself before the court can apply for the grant of bail
under Section 439 of the Cr.P.C.
The powers of the Sessions Court and High Court are in concurrence with the power of the
Magistrate to grant bail. It means that the accused can apply for the grant of bail in both the lower
court and superior court at the same time. It is not required that the person first applies to the
Magistrate and if rejected, then appeal to the superior court. The two levels of court exercise
jurisdiction concurrently in the bail matters.
Moreover, even if the accused is arrested for a bailable offence, the accused can apply for
bail before the Sessions Court or High Courts if the amount of bail decided by the Magistrate is
unreasonable and extravagant.

Guidelines for Bail by Superior Courts

Section 439 of the Code states that when a person is arrested by a police officer without a
warrant for the commission of an offence which is non-bailable in nature under the Cr.P.C, the
accused may be released at the discretion of the court if he is willing to furnish the amount of bail.
This right to be released on bail can be exercised according to procedure and guidelines laid down
under the provision. The essential guidelines for grant of bail under Section 439 can be enumerated
as follows:
1. The person arrested must be accused of a non-bailable offence.
2. If the offence is not one punishable under the Indian Penal Code, 1860, it must be
made non-bailable by the statute that creates the offence. If the statute is silent on the nature of the
offence, the seriousness of the offence is taken into consideration. If the offence is punishable with
an incarceration period of three years or more, it is considered to be a grave offence and hence, non-
bailable.
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 3. The accused must be arrested without a warrant and he must be under the custody of
the police to allow the Court to grant bail.
4. The accused must be ready and willing to furnish the amount of bail as decided by the
Court.
5. If the court has reason to believe that the accused might be guilty of an offence
punishable with death or imprisonment for life, it may impose conditions necessary to ensure his
attendance during the trial.
6. The court must give notice of the application for bail to the public prosecutor to ensure
him an opportunity to reply or give his opinion on such bail. If the court deems it unnecessary or
unreasonable to give notice to the Public Prosecutor, the court must give reasons in writing for
doing so.
The Court may impose any condition which the Court considers necessary-

a. in order to ensure that such person shall attend the trial in accordance with the
conditions of the bond or
b. in order to ensure that such person shall not commit an offence similar to the offence
of which he is accused or of the commission of which he is suspected, or
c. otherwise in the interests of justice”.

There is no ban on the superior courts against granting bail to a person accused of an offence
punishable with death or life imprisonment. However, the court must take into consideration certain
factors laid by the apex court in Gurcharan Singh v. Delhi Administration. The grounds laid
down by the court are in the form of questions which need to answer before determining the grant
of bail. These factors are:
 Whether there is sufficient evidence to show that accused might have committed the
offence alleged against him?
 What is the nature and seriousness of the charge?
 What is the severity of a punishment that the accused might be subjected to in case of
a conviction?
 Whether there is a likelihood of the accused absconding from the police.
 What is the character, status and standing of the accused person in the society or
locality?
 Whether there is a likelihood of the accused hindering or tampering the evidence to be
used against him.

Procedure to be followed for Bail by Superior Courts

The court has been empowered to release the accused on bail if the above guidelines are
duly followed and the questions incline towards bail. The court may reject the bail application of the
accused but cannot prevent him from exercising his right to bail. It means that if the offence is
bailable and the accused applies before the Sessions Court or High Courts being aggrieved by the
amount of bail imposed by the Magistrate, he can still be released on bail even if his application is
rejected.

The Section also empowers the courts to dispense the accused from paying the bail amount
and release him on the execution of a personal bond with or without sureties.

In Gyan Swaroop Gupta v. the State of U.P., the court observed that “where an accused
released on a short term or personal bond is in judicial custody he need not be sent to jail, before his
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 application under Section 439 Cr. P. C., is entertained and considered by the Court” . In Issak
Ibrahim Sandil Sovda v. the State of Gujarat, the court held that when there is the probability of
recidivism and “the possibility of repetition of the offence cannot be ruled out in the larger interest
of the society, bail should not be allowed” .
Further, the power of the High Court under Section 439 is independent of the powers of the
Sessions Court. It means that even if the bail application of the accused is rejected by the Sessions
Judge, he can apply before the High Court. In Vijay Narain v. State, the court observed that the
High Court does not exercise its revisionary power under Section 439, but the application under this
provision is taken in its ordinary original jurisdiction and hence, is independent of the decision of
the Court of Session.

“After the High Court rejected a bail application, the Court of Session can entertain a bail
application of the same accused, if any substantial grounds for bail arose after such rejection. On the
other hand, if the fresh application was meant to overcome the earlier order of rejection of bail by
the High Court, judicial decorum requires that the Court of Session should direct that accused to
approach the High Court”.

Conclusion
That in non-bailable cases, the bail is not to be withheld as punishment and the accused
person should be admitted to bail wherever practicable unless there are strong grounds for
supposing that such person would not appear to take his trial and serve sentence in the event the
court punishes him.

If the accused is too poor to afford solvent sureties for his bail or furnish monetary
obligation, as required in the bail bond, he must be released on his personal recognizance. The
power under Section 436 and 437 are of extra-ordinary character and is to be exercised sparingly.’

Meaning Of Anticipatory Bail And Procedure To Grant Anticipatory Bail

Introduction
The concept of anticipatory bail has been the by-product of judicial decisions on the
interpretation of Sections 496, 497 and 498 of the Code of Criminal Procedure, 1898. The grant of
anticipatory bail has now been crystallized into a legal concept in Section 438 of the Code of
Criminal Procedure 1973.
This provision precisely explains the meaning and procedure for grant of anticipatory bail
under the Code. The genesis of the concept can be traced to the recommendations of the Law
Commission, which thought it could be a useful addition to the protection of the rights of a person.

The Law Commission observed that “the necessity for granting anticipatory bail arises
mainly because sometimes influential persons try to implicate their rivals in false oases for the
purpose of disgracing them or for other purposes by getting them detained in jail for some days. In
recent times, with the accentuation of political rivalry, this tendency is showing signs of steady
increase.”
The Doctrine of Anticipatory Bail

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 In order to analyse the purpose, nature and scope of the doctrine of anticipatory bail as
enshrined in the Code of Criminal Procedure, 1973, it becomes indeed necessary to examine, its
legislative history briefly.

Under the previous Criminal Procedure Code, an important question arose whether
anticipatory bail could be granted. In Madhya Pradesh v. Narayan Prasad, the High Court
refused to grant such bail to an accused person because the court relied on the dictionary meaning of
bail according to which means bail is to ‘set free’ and anticipatory bail, the person is not under any
restriction but is completely free. Bail presupposes custody. If there is no custody, there cannot be
any bail.
Further, the court followed the Privy Council’s dictum in Emperor v. Nazir
Ahmed wherein the Privy Council stated that the courts should not interfere in the working of the
police department if the actions are lawful and with proper authority. If an application of
anticipatory bail is allowed by a competent court, it interferes with the function of the police in
determining whether the person concerned has or has not committed an offence.

Hence before the new Criminal Procedure Code came into operation there was a conflict of
judicial opinion about the power of the court to grant anticipatory bail. The majority view was as
shown above a very conservative one. The Law Commission in its 41st report rightly pointed out the
necessity for granting anticipatory bail in our country, as it must be in many other countries.
“Sometimes influential persons try to implicate their rivals in false cases for the purpose of
disgracing them by getting them detained in jail for some days”.
The Supreme Court in Balchand v. State of Madhya Pradesh laid down that in order that
the provision may not be abused by fraudulent applicants, the courts should issue a notice to the
Public Prosecutor of such application before the application is heard and disposed of.
In Balchand, the apex court observed that although § 438 Cr.P.C of the code does not
mention any such condition, justice and fair play requires that information should be given to the
other party to ensure that the party is able to respond in an ordinate and proper manner to the court’s
decision of granting bail.

Further, the Supreme Court laid down that though section 438 of the code does not mention
any condition that can be inflicted upon the accused or arrestee, conditions under § 437 Cr.P.C can
apply mutatis mutandis to this provision as well. This is because section 438 immediately
follows section 437.
Nature and Scope of the Provisions Relating to Anticipatory Bail
It is now necessary to illuminate the very ‘nature and scope of this power’ as envisaged in
the code and the regulating principles laid down by the Courts. The power to grant anticipatory bail
is of an extraordinary character and must be exercised sparingly and only in exceptional cases. §
438 is an application for anticipatory bail could be made “to the High Court or the Court of
Session” and that it could not be made in both the Courts.

The court relied on Amiya Kumar v State of West Bengal. However, some guidelines for
the exercise of power under section 438 were ascribed in the words of Bhagwati J. as follows:
“Section 438 does not contain unguided or unanalysed powers to pass an order for
anticipatory bail, but such an order being of an exceptional type can only be passed if, apart from
the conditions mentioned in Section 437, there is a special case made out for passing the order. The
words ‘for a direction under this section’ and ‘Court may if it thinks fit direct’ clearly show that the
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 Court has to be guided by a large number of considerations including those mentioned in Section
437 of the Code”.

Procedure to grant Anticipatory Bail

The most important consideration for the exercise of judicial discretion under section 438 is
the larger interest of the state and the society. The following two conditions are the sine qua non for
the exercise of the power of the court under section 438 can be invoked by the petitioner:
1. There must be an accusation of the petitioner having committed a non-bailable
offence. Obviously, this accusation must be an existing one or in any case stemming from the facts
already in existence.
2. There must be reasonable apprehension or belief in the mind of the petitioner that he
would be arrested on the basis of such an accusation. The simultaneous existence of both these
conditions is a sine qua non for invoking court’s jurisdiction.

Again in Onkar Nath Agrawai v. State, it was held that the power under section 438 is not
to be exercised in a vacuum but only on the satisfaction of the conditions spelt out in the section
itself. The conditions prerequisite for the court’s exercise of its discretion under section 438 of the
code is that the person seeking such relief must have a “reasonable apprehension” of his arrest on an
accusation of having committed a non-bailable offence.
While dwelling on the meaning of ‘reasonable apprehension’, Barooah, J. of the Calcutta
High Court in Shyam Sunder Beriwala v. State, the court observed that for instance, “if an order
for investigation is passed by a Magistrate under Section 156 (3) of the Code, the person concerned
must necessarily have a reasonable apprehension that he may be arrested though no formal F.I.R.
has been filed. In the instant case, even if the police had threatened the petitioners that they may
start afresh case against the petitioners, it cannot be said that their apprehension or anticipation of
their being arrested is reasonable”.

Guidelines to be Followed
In Gurbaksh Singh Sibba v. State of Punjab, the Hon’ble Supreme Court bestowed the
prerequisites to be followed by the competent Courts while granting anticipatory bail:
1. Ordinary bail is different from anticipatory bail because the primary one is effective
after the person is taken into custody. It means first the person is arrested then released on bail. In
the latter, i.e. anticipatory bail, it is operative from the duration of the arrest. It means the person can
be released even from getting arrested.
2. The powers can be exercised by the Sessions Court and High Court and it is a carte
blanche power with broad discretion.
3. The competent courts must use their brain and application of subtle mind and should
not allow the Magistrate to decide whether bail should be granted or not under § 437 of Cr.P.C.
4. Anticipatory bail orders are not blanket orders. The person anticipating detention must
have bona fide reasons to believe that he may be arrested by police for an offence. Such belief is
sine qua non to the court’s power to grant bail and vague apprehension that he may be arrested for a
non-bailable offence so that the court may take care to specify the offence or offences in respect of
which alone order will be effective and not a blanket order.
5. The courts while deciding on the question of anticipatory bail, must conform to the
requirements of § 438 Cr.P.C and rules made thereunder. The court may impose conditions as it
requires or deems fit to allow the accused to appear before it when required during the trial if any.

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 The court, further, must give notice to the Prosecutor of such application for grant of anticipatory
bail but it may give such notice after disposing of the application.
6. The court cannot restrict the duration of the bail order by specifying any specific time
for which it shall be operative.
7. It has been a common phenomenon that rivals lodge false FIRs and wrong cases to
tarnish the image of their opponents or to humiliate them. If it appears to the courts deciding on
anticipatory bail that the offence accused of is due to some ulterior motive or hidden conspiracy, the
court should allow the bail provided the court ensures to its satisfaction that the person will not flee
from justice.
8. The court held that it is not necessary that an FIR must be lodged against the person
desirous of anticipatory bail to prove his apprehension.
9. An anticipatory bail order has no effect on the power of the police to investigate, i.e. to
interrogate the accused, search his place and seize anything that can be incriminating provided it is
done lawfully.

Provisions Of Cr.P.C with Respect to Bond of Accused and Sureties

Introduction
Bail, in common parlance, means the amount to be furnished by the accused who is arrested
on the suspicion of the commission of an offence. After such bail is furnished, the accused is
required to promise or give in writing that s/he shall appear before the court on the designated time
and place.

Bond is the written declaration by the accused that he will abide by all the orders and
instructions of the authorities and if he fails to do so, a certain amount may be paid by paid.

Provision under Cr.P.C, 1973

The code empowers the police and the courts to enlarge a person accused of an offence on
its personal bond on several occasions. For instance, in the case where security is taken for
peacekeeping or for maintaining good behaviour or where the accused is arrested for creating a
public nuisance. Section 441 of the Cr.P.C contemplates the release of the accused on bail. Before
such release, however, a bond either of the accused personally or by one or more sufficient sureties
for releasing him on bail has to be obtained.
The provision entails guidelines as to when the courts or the investigating authorities may
release a person on his/her bond or on the bond of the surety or sureties and also connotes certain
conditions that may be imposed by the releasing authority while passing an order releasing the
accused. According to Section 441, the court may impose any reasonable conditions that it believes
would be sufficient to ensure the presence of the released person before any appropriate authority
for the purpose of trial or any other purpose as provided by the law.
In common parlance, the court is usually satisfied to issue conditions such as:

1. The prevention of the accused person to leave the town in which the trial is being
proceeded or
2. The prevention of the person from leaving his house, i.e. house arrest or
3. The requirement that the person appears before the competent police officer or
competent Magistrate every week or at a specific duration.

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 Nature and Object of § 441
Section 441 makes provision regarding bond of accused and sureties. It provides that a
person who is accused of an offence under any penal law can be released on bail or on his personal
bond if the person is willing to do so. At the time of releasing any person on bail, the authority may
ask such person to execute a bond for a certain sum of money to ensure that the person appears
before such authority as and when required.
Further, if the authority wants, it can release the person on his personal bond without any
bail amount to be paid. During the execution of these bonds, the law usually requires that the bond
be executed by at least two sureties as well. The sureties are people who act as guarantor for the
appearance of the accused before the appropriate authority.

The provision does not only provide for the personal bond of the accused but for sureties to
be provided by the accused. It has become a common phenomenon of offering surety to an accused
even in heinous crimes. Owing to this, a large number of accused remain unavailable for the trial
thereby prolonging the duration.

The main purpose of requiring an assurance in the form of bail and surety from the accused
is to see that he remains available for the trial. If there is the possibility of the accused being present
for the trial and also if there is no possibility or the authority is satisfied that the accused will not
jump the conditions of bail, then, unless there are special compelling circumstances, the court
should not refuse bail.
Under provisions of Section 441 (4), the court must satisfy itself with regard to the
authenticity, veracity and competence of the person acting as surety before the court. The magistrate
would be justified in refusing to accept surety bond if the Magistrate was not satisfied with the
authenticity of legal competence of the sureties. In Sahab Sigh v. the State of M.P., the court
observed that the discretion conferred upon courts under Section 441 of the Cr.P.C on a court or
police officer is in the nature of a quasi-judicial power on judicial authority.

Guidelines and Procedures for Furnishing Security

In Moti Ram v. the State of M.P., Krishna Iyer J. observed that “the principal purpose of
bail is to ensure that an accused person returns for trial. But, in the present system, the defendant
with means can afford to pay bail and buy his/her freedom while the poorer defendant cannot pay
the price. He does not stay in jail because he is guilty but because he is poor”.
The sarcasm, in this case, was with respect to the demand for cash securities by the police
officers and courts. The court observed that the authorities in power misuse their discretion since no
specific guidelines and procedure has been provided for deciding the amount of bail and the mode
of furnishing it.

Therefore, to ensure that the purpose of bail is duly met, the courts have framed certain
procedural requisites with respect to the release of accused on bond.

In Hussainara Khatoon v. Home Secretary, State of Bihar, the court held that if the court
or other competent authority is satisfied that the accused is attached or very closely related to his
hometown or his place of residence such that it is not likely that he will abscond and flee from
justice, the court may release the accused on his execution of a personal bond.
To determine whether the accused has his roots in the community, it essential to look into
the following factors:

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 1. The span of his dwelling in the said area or coterie,
2. His enrolment in any payable job, his recidivism and his good character,
3. His relationship with the ménage and personal ties with kith and kins.
4. His stature in the society and his fiscal or pecuniary exigencies,
5. His act of recidivism, if any, and any circumstances before this where the person was
arrested for an offence and/or released on bail,
6. The congruence of the ménage ready to endorse or substantiate in favour of the release
of the person.
7. The trait of the crime with which the accused is charged, i.e. whether it is a felony or a
misdemeanour, etc.
8. Any other factors that the court considers necessary that may result in the change of
the opinion of the court as to the determination of whether the accused should be released on bail or
not.

Liabilities of the Sureties

Section 441 (4) makes it crystal clear that if the accused is released on his personal bond and
he fails to furnish the amount of bail, the sureties who executed the bond along with the accused
shall be liable to pay the amount of bail and any other amount as punishment.
Where it was conceded that the surety bond was for the attendance of the accused in a
particular court and therefore, the liability of the surety came to an end when the case was
transferred to another court, and that failure of the accused to appear before the second court would
not cause forfeiture of the bond.

Conclusion
In Hussainara Khatoon, the apex court pointed out as to the practice of setting a bail
amount for the release of the accused at such a high pedestal that it becomes almost impossible for
the accused to pay off the bail amount. The court observed that the right of bail is not meant only
for those who can afford to pay a high amount of money but also to those who have a genuine right
to bail but cannot afford to pay for it.
Having said that, the court observed that the present practice of bail in India causes great
hardships and impediments for the accused to prepare for defence and the courts must consider
factors such as the financial correlation of the accused and his family and the likeness of the
accused running away from the grasps of the justice system.

7: CHARGE AND TRIAL

Meaning, Form and Content of Charge under the Cr.P.C, 1973

Introduction
Section 2 (b) of the Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC’) defines ‘charge’
in an inclusive manner. According to this provision, the charge includes any head of the charge
when there are more heads than one.

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 The definition of charge in CrPC is very vague and beyond the comprehension of a layman.
Before defining charge in simple terms, it is vital to decode this definition and understand what
CrPC wants to say about the definition of charge. A person can commit several offences by his one
single act.
For instance, A stole all the jewellery in B’s house by keeping the inmates at gunpoint.
Here, A has committed house-trespass, theft, theft in a dwelling house, illegal possession of arms,
assault and so on and so forth.
Thus, when a criminal prosecution initiates, the Magistrate charges the accused and informs
him of the number of offences that have been alleged against him. All these offences are called
heads of charge and all of them individually and together are known as ‘charge’. This is
contemplated by Section 2(b) of the CrPC.
Meaning of Charge
There is a difference between a definition and a meaning. The definition is the specific
words used by an authority to explain a term or phrase whereas meaning is the explanation if that
definition in simple and lucid terms.
The definition has already been stated in the aforementioned paragraph. The term charge, in
criminal law, basically means the allegations or offences that have been hurled on the person. Thus,
if A is accused of theft, the charge is theft. Hence, the charge is a formal recognition granted to the
act of the accused person by a Magistrate to allow the person to have knowledge about his act.
Purpose of Charge
The main object of charge was highlighted by Faizalali J. in V.C. Shukla v. State. His
Lordship observed that the purpose of the charge is to give the precise and exact knowledge to the
accused of the offence that he has been charged with to allow him an opportunity to prepare for his
defence.
The general practice and basic rule are that charge must be specific and not elongated. This
allows the accused to prepare his defence on the specific charge. Moreover, charge also allows the
Prosecutor to prepare its case and the evidence to commence the prosecution.
Every offence puts upon the prosecutor a very different burden to prove its case before the
court. Though in common parlance, we say that the prosecutor has the burden to prove beyond a
reasonable doubt that the accused is guilty of the offences charged with.
In practice, the weight of this burden changes from offence to offence. Offences which are
punishable with severe sentences such as imprisonment for 7 years or more levy a greater burden on
the prosecution than an offence punishable with 3 years’ incarceration. Therefore, it is essential that
all the heads of charges are specifically and more fully described to allow the prosecutor to analyze
the amount of evidence that would be essential to obtain a conviction.
Form of Charge
Charge is not a form but the charge that is levied against the accused is mentioned in the
charge-sheet which is the form of charge. The charge-sheet is a general term used for the Final
Report that the investigating authority (usually Police) is required to submit under Section 173 of
the CrPC.
The charge-sheet contains the offences which the police suspect the accused to have
committed on the basis of the evidence that can be found during the course of an investigation.
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 However, the actual charges are those and actual charge-sheet is the one where the Magistrate puts a
charge on the accused.
After the accused person is arrested, the police investigate the matter and try to arraign
evidence that can be gathered. If after collecting the evidence, the police has reason to believe that
the arrested person is the accused, a final report is prepared which contains the charges and
evidence.
The accused with the final report is produced before the Judicial Magistrate. The Magistrate,
after inquiry, informs the accused of the offences that he is charged with and mentions them on a
separate sheet which is the charge-sheet. This charge-sheet is the form of charge which is Form No.
32 provided for in the second schedule of the CrPC.
Contents of a Charge-sheet
As aforementioned, the Magistrate prepares the charge-sheet of the offences with which the
accused person is charged. Now, the question that arises is what should such form or charge-sheet
contain. Section 211 of the CrPC enlists the essentials of a charge. Further, Section 212 and 213
provide for additional information which is to be stated in the charge-sheet under certain special
circumstances.
The contents of a charge which are must are as follows:
 The title of the offence with which the accused is charged. For instance, if the act is of
stealing, the exact title as used in Indian Penal Code must be stated, i.e. “theft”.
 After the title of the offence, the offence must be described by explaining the act that
constitutes the offence. For instance, the offence is “theft” committed by stealing the properties of
‘A’.
 The charge-sheet must define and explain the elements of the offence with which the
accused is charged with. Every offence has been defined the IPC or other relevant laws and there
are certain essential ingredients to be proved. The charge-sheet must mention them. For instance,
for the offence of theft elements are, ‘taking property out of the possession of its lawful owner’ and
‘with a dishonest intention’.
 Then the Magistrate must remember that the accused is a layman and may not be
acquainted with the law and provisions of law. Hence, the charge must contain the name of the law
and the relevant provision number.
 Next are the substantive requirements that need to be conformed to. It means if there
are any exceptions to the elements mentioned before or any defence is allowed to the accused. For
instance, if the property is taken out of the possession of its lawful owner to protect it from damage,
it is not theft.
 The Magistrate shall make a note to the effect that all the essential requirements of the
offence were fulfilled in the case by the acts if the accused person(s). The Magistrate shall further
explain the facts under what the elements have been fulfilled. For instance, at the time of the
offence, ‘A’ was seen by B’s neighbour entering B’s house proves that A was at the place of crime.
 The charge shall also be accompanied by an averment stating any prior conviction or
any recidivism that the accused is liable because of which he is entitled to severe punishment. This
enables the trial court to proceed with the trial quickly and easily.
 The charge should also contain the particulars, i.e. details of the time when and the
place where the offence is alleged to be committed. In a criminal trial time and place are extremely

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 momentous. If the accused person can show his presence at a different place at the same time, he
can successfully claim the plea of alibi. Hence, time and place are essential.
 Further, the person or the thing against which the offence is alleged to be committed
by the accused shall also be included. Detail of the person affected assists in establishing the
identity of the accused and any motive for the commission of the offence.
 In case the offence charged is in the nature of misappropriation or criminal breach of
trust or any offence where the actual amount of money lost cannot be ascertained, a gross or
approximate amount of loss will satisfy the requirement.
 Lastly, if even after specifying all the above ingredients, the Magistrate feels that the
offence is of such a nature that the accused may not be able to understand the charges, he may as he
deems necessary to explain the offence in his terms so as to give full and accurate knowledge to the
accused about the offence.

Errors in Charge and its Effect

When any of the particular is not mentioned or not sufficiently mentioned in the charge-
sheet, this causes an error in the charge. However, Section 215 states that any error in the charge
shall not vitiate the trial or affect the proceeding in any manner.
In Tulsi Ram and ors. v. State of Uttar Pradesh, under para 12, the court was thinking
about these parts of the issue and clarified that a grumbling about the charge was never raised at any
prior stage and the Hon’ble Judges arrived at the resolution that the charge was completely
comprehended by the appellants all things considered and they never griped at the suitable stage
that they were confounded or baffled by the charge.
The tragic thing is valid here. Consequently, the Court wouldn’t acknowledge any complaint
identifying with the mistake in the confining of the charge.

Basic Rules of Charge and its Exceptions

Charge and trial are the two most significant terms in criminal jurisprudence. Charge, on one
hand, means the offence that the person is alleged to have committed while trial means the judicial
process during which evidence is taken to prove and disprove such charge.

All criminal jurisprudence entails three basic rules of charge and trial that (a) a person must
be charged separately for separate offences, (b) two offences must not be tried in one trial and (c)
two or more persons should be tried separately. However, due to this basic rule of charge and trial,
there can be a delay in disposal of cases, extra cost upon the litigants and most of all difficulty in
respecting the evidence.
Therefore, the Criminal Procedure Code entails certain exceptions to the basic rule as well.
The basic rule of charge and trial and the exceptions thereof are discussed in detail hereunder.

Introduction
Section 2 (b) of the Code of Criminal Procedure, 1973 (hereinafter, ‘CrPC’) defines ‘charge’
in an inclusive manner. According to this provision, the charge includes any head of the charge
when there are more heads than one. When a criminal prosecution initiates, the Magistrate charges
the accused and informs him of the number of offences that have been alleged against him. All
these offences are called heads of charge and all of them individually and together are known as
‘charge’.

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 Criminal law is based on certain established principles, rules and guidelines which need to
be adhered to. Presumption of innocence, the fairness of the trial, etc. are certain principles that are
followed in criminal jurisprudence. Similarly, charging a person is also not random or at the
discretion of the Magistrate. The Code of Criminal Procedure, 1973 (hereinafter ‘CrPC’) establishes
a basic rule for charging a person in any prosecution.

Basic Rule of Charge

Section 218 lays down the basic rule of charge and trial. The basic rule states that there must
be a different and separate charge for every offence that the person is accused of and every charge
levied against the person shall be tried separately in distinct trials.

Thus, in a nutshell, there should be as many charges as the number of an offence committed
and each charge must be individually tried on merits. Further, if there are more than one accused, it
is also the fundamental rule that each of them should be tried separately and not jointly.

For instance, A, B and C decided to rob a bank and gathered arms for the purpose and
devised a plan. According to their plan, they broke into the bank when it was close and held every
staff hostages. They started pillaging money when one of the staff rang the bell. A shot the staff and
police came to rescue. They tried escaping and in the process, they had to injure another hostage to
let them escape.

In the entire process, A, B and C committed ‘robbery’, ‘murder’ and ‘voluntary causing
grievous hurt’. Thus, the basic rule states that each of these persons must be tried for each of these
offences separately. If they are found guilty of one does not mean they are guilty of all.

Exceptions to the Basic Rule

In general day to day lives, if we have been to court or have heard it at home or on any
media reports, a person is always tried for all the offence together and also all the accomplices are
charged and tried together with him.

Now, the question is how does it happen? How does the basic rule apply in practice? So, the
answer to these questions is simple; that basic rules have so many and practical exceptions that
there is hardly any situation when these fundamental rules apply. The following are the exceptions
to the basic rule of charge and trial:

 Application by the Accused:

Proviso to Section 218 (1) specifically allows the accused person(s) to move an application
in writing to the Magistrate requesting him to try him for all the offence together at one trial. This is
usually done to save time and money. When all the charges are separately tried, it takes immense
time when each evidence is analyzed and every witness is examined and cross-examined.

The process is repeated for every offence and new evidence and brought every time a new
trial commences. This makes it a very tiring and never-ending process. Even when the accused is
innocent he has to undergo years going through the trial. Moreover, this also has an adverse impact
on the pockets of the accused since he has to engage a lawyer to defend him and the longer the trial
goes, the higher amount will be spent on legal services.
In a criminal case, the accused is also not entitled to any kind of cost reimbursement for
wrong or misunderstood trial. However, the application under Section 218 (1) cannot be processed
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 on the request of the applicant alone. The Magistrate must look into the effect of joinder of charges
and ensure that it will not prejudice the accused and affect the integrity of the fair trial.

 Three Offences of the Same Kind within a Year:

According to Section 219 CrPC, if a person is accused of commission of two or more
offences which are similar in nature within a period of one year, i.e. 12 months, then he may be
charged with all such offences together and tried for them together as well. This is an exception to
the basic rule of separate charges for separate offences.

Under this provision, the essential requirements are: (i) that the person must have been
charged and prosecuted for more than one offence. It does not include investigation being carried on
for another offence. It means that if the person charged and tried for theft and another offence of
criminal misappropriation is being investigated.
These offences cannot be joined unless the trial initiates for both offences, (ii) all the
offences which are desired to be charged together must have been committed within a span of
twelve months. It means that not more than twelve months should have passed after the
commencement of trial for the first offence and before the commencement of trial for the last such
offence, (iii)all the offences which are to be jointly charged and tried must be similar in nature.

Now, a similar offence does not mean all must be related to each or all must be sexual
offence, etc. Section 219 (2) defines offence of similar nature as those for which the prescribed
punishment, i.e. tenure of imprisonment and/or fine is same, offences which fall under same section
or same chapter of the Indian Penal Code and offences and attempt to commit such offences are
similar offences for the purpose of this section.

 Offences Committed in the Same Transaction:

This is the most important and basic exception to the fundamental rule of separate charges.
This exception emerges from Section 220 which provides that when a series of acts have been
performed by a person and during the course of such act, several offences have been committed, the
person may be charged and tried for all such offences in one single trial.

For instance, in the aforementioned example where A, B and C robbed a bank, injured a
hostage and killed another, though the basic rule requires them to be charged and tried separately
for distinct offence, this provision creates an exception for such circumstances. Therefore, if the acts
of the accused are such that it has been committed in the course of one single event, s/he can be
charged for all the offences at once.
At the point when an individual accused of at least one offence of criminal breach of trust or
exploitative misappropriation of property as mentioned in sub-section (2) of section 212 or in sub-
section (1) of section 219, is blamed for perpetrating, to encourage or covering the commission of
that offence or those offences, at least one offences of misrepresentation of records, he might be
accused of and attempted at one trial for, each such offence.

On the off chance that the demonstrations asserted establish an offence falling inside at least
two separate meanings of any law in power until further notice by which offences are characterized
or rebuffed, the individual blamed for them might be accused of and attempted at one preliminary
for, every one of such offences.

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 In the event that few demonstrations, of which at least one than one would without anyone
else or themselves establish an offence, comprise when consolidated an alternate offence, the
individual blamed for them might be accused of, and attempted at one preliminary for the offence
established by such acts when joined, and for any offence established by any, at least one, of such
acts.

 Where it is Doubtful What Offence has been Committed:

There can be circumstances where it becomes ambiguous as to what offence has been
committed by the accused because of the similar nature of the acts. For instance, when the act may
seem to be criminal breach of trust or criminal misappropriation of property or theft, the exception
states that the person alleged to have committed either or any of these offences may be charged with
any one or all of the offences and tried for them together at the discretion of the Magistrate.

This has been contemplated by Section 221 of the Code which empowers the Magistrate to
charge in alternative or for all the offence that appears to be committed by the person. Moreover,
the second clause also provides a remedy in case the actual offence committed by the person is
completely distinct than the ones with which he was charged. It empowers the Magistrate to try and
convict the person for the offence which has been brought out by evidence even though he is not
charged for the same.

 Where Two or More Persons can be Charged Jointly:

As already asserted above, it is another basic rule of charge and trial that every person
should be charged separately and tried severally. Section 223 makes an exception to this rule under
which provision two or more person can be charged and tried together for the same or distinct
offences as the case may be. According to the section, the person can be charged and tried jointly in
the following circumstances or situations:

 Where two or more persons commit the same crime while in the same process or same
course of action such as A and B together killed C by strangling him to death.
 Where two or more persons have together committed an offence such that one is the
main culprit while others have attempted or abetted the commission of the offence such as A and B
plan to rob a bank. A went inside and B waited outside in a car to drive them back.
 Where two or more offences which are of similar nature as expounded under Section
219 are committed by two or more person before the expiry of a period of twelve months.
 Where two or more persons plan to commit a certain crime and take part in the
commission of the offence but the distinct offence is committed by them. For instance, A and B
plan to kill C but B backs out of the plan last moment and A executes it alone but B commits the
offence of giving false evidence to the police.
 Where the offence charged includes offences against property, the person(s) who steal
the articles or property and those who receive the stolen goods knowing it to be stolen can be
charged and tried together.
 Where two or more persons are accused of any offence or offences which fall under
offences related to stamps and counterfeit coins, they can be charged and tried together.

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 Alteration and withdrawal of charge under Cr.P.C, 1973

As indicated by Section 216 (1) of CrPC, any criminal court may change or add to any
charge whenever before judgment is articulated. The section contributes an exhaustive capacity to
cure the imperfections in the framing or non-confining of a charge, regardless of whether found at
the underlying phase of the trial or at any consequent stage before the judgment.

The code gives abundant capacity to the courts to adjust or alter a charge whether by the
preliminary court or by the Appellate Court gave that the blamed has not to confront a charge for
another offence or isn’t preferential either by keeping him out of the loop about that charge or in not
giving a full chance of meeting it and advancing any safeguard open to him, on the charge at last
favoured against him.

Introduction
Imagine a situation when A ravished a girl X brutally and leaves her on the side of the street
to die. X does not die but reaches the hospital on time and the medical treatment starts. Meanwhile,
A is caught by the police and through the course of the investigation it appears that A is the actual
culprit; charge-sheet is filed against A and the prosecution for the offence of rape under Section 376
of the Indian Penal Code, 1860 commences. While the prosecution was mid-way, X is declared
dead by the doctors claiming that she had multiple organ damages and it could not be possible to
save her. Now, can A be charged for murder? If yes, will there be a separate charge and trial?

According to Section 220, since the rape and murder formed part of one series of acts, there
need not be multiple charges. Thus, how should A be tried for murder? To clarify this question and
provide for these situations, the Criminal Procedure Code, 1973 empowers the court to alter the
charge, i.e. to add or modify the present charge even when the trial is ongoing.

Alteration of Charge
Section 216 of the Code empowers all criminal courts including Judicial Magistrate’s Court,
Session’s Court and even High Court to alter the charges levied against the accused if the court
founds that there is a need to alter charge due to certain event, incident or circumstances. The power
is vested upon the court which means that it is the discretion of the court to entertain the request for
alteration of charge.

 Meaning
The expression ‘alteration of charge’ means any addition or modification in the charges
levied by the Magistrate on the basis of the final report submitted by the investigating officer in the
case. It has to be noted that alteration under Section 216 does not include deletion or removal of a
charge. This is because it is presumed that if a charge is levied by the Magistrate, it is levied only on
the basis of the investigation and the evidence and proofs collected by the investigating officer
during such investigation.

Such charge is put before the court to be proved or disproved on the basis of the evidence. It
is believed that the Magistrate would have applied his/her mind while determining the charges
against the accused person and therefore, such charges can be excluded or deleted only on the basis
of lack of evidence or that the prosecution fails to prove its case for that offence beyond a
reasonable doubt. Thus, while exercising its power to alter a charge, the court can add more charges
or amend the charge but cannot delete it completely.
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  Procedure to be Followed
It has to be understood that in India we follow an adversarial judicial system. Unlike in
inquisitorial judicial system, the judge here does not play an active role in investigating and
determining the truth. The judge is a mere impartial spectator who analyses the evidence brought
before with an impartial and unbiased mind and gives a decision on the basis of proof. Therefore, in
our criminal jurisprudence, the judge does not alter the charge himself because he is not the one
who sees the evidence prima facie; it is the prosecutor.
The procedure, followed in practice, though the Code does not specifically mention it, is that
the prosecutor must file an application under Section 216 of CrPC requesting the court to alter the
charge against the accused person and specify the reason why he believes that the charges need to
be altered.

For instance, A is accused of rape and the said charge is framed against him by the
Magistrate and the case is committed to the session’s court. Later during the prosecution, it is
discovered that the victim has died. The Public Prosecutor has to file an application under Section
216 requesting the court to add the charge of murder since ‘the victim is declared dead and the
cause of death is the injury caused by the accused’.
If the above procedure is duly followed, the court looks into the application and if the court
is satisfied that there are sufficient grounds to alter the charge framed against the accused person, it
may alter the charge and frame a separate charge against the person. The application for alteration
of charge can be filed at any time before the sentence is passed.

 Pre-requisites to Alteration of Charge

Even if the due procedure to alter the charge is followed and the court is also convinced that
the accused is liable to be tried for the altered charge, there are certain guidelines or prerequisites
that need to be followed to ensure a fair and impartial trial to the accused. These requirements have
been enlisted under Sections 216, clauses 2 to 5. These are:

1. It is of utmost significance that the accused be informed and explained the new charge
framed against him or the alterations that have been made to the existing charge as the case may be.
This allows the accused to prepare for his defence in an efficient manner.
2. If the court believes that the proceedings before the court before the alteration will
remain unaffected by the alteration of charge, the court may at its discretion alter the charge.
3. The court must ensure and satisfy itself that alteration of the charge shall not prejudice
the prosecution’s case and shall not impede the accused in his defence.
4. If the court believes that the alteration of charge will not prejudice either party to the
prosecution, it may proceed with the altered charges as if the altered charges were the original
charges.
5. Contrary to the above, if the court believes that the altered charges will prejudice the
accused or the prosecution, it shall adjourn the proceedings of the court and allow time for the
parties to prepare in accordance with the altered charges. In the alternative, the court is also
empowered to direct the prosecutor to commence a new trial for the altered charges.
6. Further, there are certain offences, to prosecute which, special permission or sanction
from the government is necessary. For instance, for the prosecution of a police officer for an
offence, sanction under Section 195 of CrPC is essential without which the prosecution can be
vitiated. Hence, if the altered charge is one such offence which requires sanction from the
government, the same must be obtained before the trial commences.

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  Impact of Alteration of Charges
Section 217 of the Code summarizes the impact of the charge alteration on the trial. The
impact does not mean the adverse impact but how to go about the trial. It has to be noted that charge
can be altered by the court at any time before the sentence is passed.

Thus, there can be situations when by the time application for alteration of charge is
entertained, several witnesses might have been examined. Further, the prosecutor may have
completed all its examination but it may require to examine more witnesses for the altered charges.

Therefore, Section 217 of CrPC allows the parties to call additional witness, recall or
resummons witnesses already examined and examine them again for the altered charges. The court
must ensure that calling the witness is only for meeting the ends of justice and not to vitiate the
purpose of trial or to delay the proceedings of the court.

Meaning and Purpose of Trial and Difference between Trial and Inquiry

Introduction
The term ‘trial’ has not been defined by the code, however, in general, it means scrutiny
before a judicial authority for the complete determination of legal rights and duties of two or more
persons in dispute. The base of the judicial framework in the American States is the trial conducted
by the jury (trial by peers). A significant number of the judgments of the U.S. Supreme Court that
brings forth the custom or belief which needs to be conformed to relies upon several issues and
arguments raised during the peer trial.

The jury trial strategy for settling questions is introduced on the customary belief that two
people in dispute can resolve the matter best when they are kept juxtapose to one another, with each
side supporting its own variant of material facts.

According to the Adversarial Legal System, the jury, a group of residents from the common
people, chooses which certainties in question are valid.
A judge presides at the trial and decides and applies the law. Toward the conclusion of the
proceedings in the case, the presiding officer, i.e. the judge shall pronounce the judgment of the
court which comprises the choice of the court. The gatherings must hold fast to the judgment of the
court.

All trials are not jury trials. A case may likewise be attempted under the watchful eye of a
judge. This is known as a ‘court trial’ or a ‘bench trial’ which is followed in India. A bench trial is
fundamentally indistinguishable from a jury trial, aside from the judge examines and scrutinizes
both the facts and the law relevant to the activity. Frequently, be that as it may, activities made by
rule might be attempted uniquely under the steady gaze of the court.

Commencement of the Trial

A trial starts after the primer issues in the activity have been settled and the court is prepared
to start the assessment of the material facts. The proceeding ends at the time when the assessment is
finished and the court is able to pronounce a judgment or sentence. The trial connotes the proper

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 acknowledgement and recording of a decision unequivocal of the whole activity. Before the trial
may start, be that as it may, certain fundamental issues must be settled such as:

1. Place of Trial: Setting alludes to the specific city wherein a court with competent
jurisdictional powers may lead a trial. The best possible setting for most trials is the city or district
wherein the injury in question purportedly happened or where the parties dwell. The setting may be
that as it may be changed to an alternate jurisdiction. The setting for a criminal trial, for instance,
can change if a litigant convinces the trial court that he can’t acquire a reasonable trial in that scene.

2. Motions prior to Trial: Motions might be made by the prosecutor or the accused
whenever preceding trial and may significantly affect the case. For instance, in a criminal case, the
trial judge may decide that the essential bit of implicating proof isn’t acceptable in court. Before the
trial starts, the court holds a pre-trial gathering with the parties’ lawyers. At the pre-trial meeting,
the gatherings tight the issues to be attempted and settle on a wide assortment of different issues
important to the manner of the case.

3. Public and Closed Trial: Albeit most trials are hypothetically open to people in
general, now and then a court may choose to hold the trial within an enclosed structure usually
called an in-camera proceeding. For the most part, a trial might be shut to the open just to guarantee
request and pride in the court or to keep mystery delicate data that will attend light during the court
date. In this way, a trial may be shut to general society to secure characterized archives, ensure
exchange insider facts, stay away from terrorizing of witnesses, monitor the wellbeing of covert
cops, or secure the personality of a juvenile offender.

People Present at the Trial

1. Judge: The judge directs the court and is the focal figure in a trial. It is the directing
judge’s obligation to lead an efficient trial and to guarantee the best possible organization of equity
in his court. The judge chooses every single legal issue that emerges during the trial, controls the
introduction of evidence by the gatherings, and for the most part coordinates each part of the trial.
The judge must be fair, and any issue that loans even the presence of unbiasedness to the trial may
exclude the judge. Due to his significance, the managing judge must be available in court from the
opening of the trial until it’s nearby and must be effectively open during jury trials while the jury is
thinking on its decision. The judge holds a position of respect in the court. The judge sits over the
lawyers, the gatherings, the jury, and the testimony box. Everybody in the court must stand when
the judge enters or leaves the court. The judge is tended to as “Your Honor” or “the Court.”
Although the judge has expansive circumspection during the trial, his decisions must not be
arbitrary or unjustifiable.

2. Parties: In a trial, the term party alludes to an individual, association, or government

that takes part in the trial and has an enthusiasm for the trial’s result. In a criminal trial, the
administration is represented by a lawyer, known as the Public Prosecutor, who tries to demonstrate
the blame of the litigant. Albeit a criminal respondent may speak for himself during the trial, he is
qualified for portrayal by counsel. On the off chance that a litigant can’t manage the cost of a
lawyer, the court will delegate one for him. An accused has a protected right to be available at each
basic phase of the trial under Section 273 of the CrPC. Likewise, many court choices have held that
the trial of a denounced without his presence at each basic phase of the trial abuses his protected

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 right to fair treatment. A litigant may forgo this privilege and decide not to go to the trial or bits of
the trial and be represented by his pleader.

3. Lawyers: Each side in a trial has the option to be spoken to by a lawyer or lawyers,
albeit a party is allowed to lead the trial himself. On the off chance that a gathering chooses to be
spoken to by a lawyer, the court must hear the lawyer’s contentions; to decline to hear the lawyer
would deny him his right to be heard and the opportunity to a fair trial. In a criminal trial, the
litigant has a privilege to be spoken to by a lawyer, or lawyers, based on his personal preference. In
the event that the litigant can’t manage the cost of a lawyer, and the wrongdoing is more grave than
a trivial offence, the court will delegate one for him. The lawyers are available in a trial to speak to
the parties to the proceedings, yet they likewise have an obligation to see that the trial is reasonable
and fair.

4. Witnesses: a Witness is a person who is an observer of a fact or incident related to the

offence that has been committed provided he is competent to observe ad testify in court.. Witnesses
assist the parties to frame their respective cases because witnesses are believed to be independent
persons speaking the truth. A witness may answer all the questions he has been asked or if he
wishes he can refuse to answer any question but under valid circumstances such as if the answer
will incriminate him. Witnesses also assist in the completion of the investigation process by the
police officer. For instance, if a police officer has discovered a fingerprint or a footprint from the
scene of the crime, the witness may assist the officer by testifying on behalf of the prosecutor that
the finger[prints were discovered from the crime scene and not any other place. The cop would
affirm that he found the fingerprints at the wrongdoing scene and that he discovered that the
fingerprints coordinated the litigant’s fingerprints. An observer must affirm honestly. Prior to giving
declaration in a trial, an observer makes a vow or insistence to come clean.

5. Other Support Personnel: Various individuals may aid the trial judge in directing the
trial. The court reporter, otherwise called the stenographer, records each word expressed during the
trial, aside from where the judge holds a meeting confidentially. The court correspondent readies an
official transcript of the trial if a gathering demands it. The bailiff is an official of the court who
maintains order and dignity in the court. A language mediator or interpreter is available in a court
when a party or witness can’t communicate in the language of the court. At long last, most judges
have a legal clerk also called the judicial clerk who helps the judge in directing exploration and
drafting legal obiters.

Trial and Inquiry: Difference

INQUIRY TRIAL

Trial is a procedure which includes

Every one of those procedures before a assessment and assurance of a reason by a legal court,
Magistrate preceding the confining of a charge and which finishes in conviction or quittance of the
which doesn’t bring about conviction is “inquiry”. charged person.

Trial concludes in the final determination of

An inquiry into an offence never finishes the question of guilt or innocence of the accused
in conviction or quittance; at the most, it might person.
bring about release or committal of the case for trial
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 by a Magistrate/Sessions Judge.

An inquiry doesn’t really mean a probe Trial is the examination or assessment of the
into the existence of an offence or crime since it offence and whether the said offence has been
might identify with issues which are not offences. committed by the said person or not.

Inquiry alludes to each Inquiry other than a Trial is the assessment and assurance of a
trialled under the CrPC by a Magistrate or a Court. reason by a legal court which has jurisdiction over it.

Trial is the third stage in the entire criminal

Inquiry is a subsequent stage which lies prosecution. It follows the stages of investigation and
second in the chronology after investigation. inquiry.

Trial of Warrant Cases under the Code of Criminal Procedure, 1973

. The Criminal Procedure Code, 1973 entails three types of trials on the basis of the nature of
the case.

Thus, these are a) trial of summons cases, b) trial of warrant cases and c) summary trials for
petty offences or misdemeanours.

These trials are specifically before the court of Judicial Magistrates. Trial before the Court
of Session is called session’s trial. A trial consists of several stages; from opening the case by the
prosecution to closing arguments by the defence.

Introduction
Summons Cases and Warrant cases are two types of cases tried by a Magistrate on the basis
of the offences that have been committed by the accused. Section 2 (w) of the Code defines
summons cases as those cases which are not determined to be a warranty case. Thus, it is vital to
define a warrant case now. Section 2 (x) defines warrant cases where the punishment prescribed by
the law for the offence tried is more than 2 years of imprisonment including incarceration for life
and the death penalty.

Hence, cases relating to the trial of offences for which the prescribed punishment is 2 years
of imprisonment or less.

Why Warrant Cases?

One essential question that needs to be known is why the offences punishable with more
than 2 years are called warrant cases. IN these cases, the Magistrate is empowered to issue a warrant
of arrest of the alleged offender and the police are empowered to arrest the person on such warrant
without allowing the person an opportunity to surrender.

On the Contrary, in summons cases, the Magistrate is obliged to serve the accused with the
summons and request him to produce himself in the court before the Magistrate on the stipulated
time and date. This does not connote that in warrant cases the Magistrate is bound to issue a
warrant. It is merely a power that can be exercised. If the Magistrate believes that the issue of

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 summons would be sufficient to ensure the presence of the person, he may do away with the
warrant.

Kinds of Warrant Cases

There are two types of warrant cases, viz. warrant cases instituted on submission of the
police report and warrant cases instituted otherwise. In a nutshell, if an offence is cognizable, a
person (informant) can lodge an FIR in the police station, the police conducts the investigation and
at the end when the police finds sufficient evidence against the accused person(s), it submits a
report to the Magistrate and on the basis of the report, trial commences. These cases are cases
instituted on the police report.
On the other hand, when an offence is non-cognizable or if the police refuse to lodge an FIR
or for any other reason, FIR cannot be filed, the next best alternative is to lodge a complaint before
the Magistrate. On the basis of the complaint, the Magistrate initiates the proceedings.

These cases are instituted on the complaint and hence, are called cases instituted otherwise
than on police report. the procedure for trial of both the warrant cases are different and distinct from
each other and are explained concisely hereunder.

Trial of Warrant Cases Instituted on Police Report

At the point when the blamed shows up or is brought before Magistrate, he (the magistrate)
should, at the beginning of the trial, fulfil himself that the archives alluded to in Section 173 have
been outfitted to the charged.

On the off chance that this has not been done the magistrate will, subject to the arrangements
of section 173(5), cause them to be outfitted to the blamed. Sub-Section (4) of Section 173
necessitates that the official accountable for the police headquarters ought to have done as such
before the initiation of the request or trial and the charged should, in this way, make some sensible
memories to consider these reports before the trial starts.

The magistrate will at that point consider every one of these reports and make such
assessment of the blamed as he might suspect important and in the wake of giving the indictment
and the blamed an open door for being heard, decide, regardless of whether he should outline a
charge. It isn’t presently essential that any indictment witnesses be inspected before the charge is
surrounded.
In the event that the Magistrate believes the charge against the blamed to be baseless, he will
release the denounced. On the off chance that the magistrate is of the sentiment that there is ground
for assuming that the charged has submitted an offence which the magistrate is capable to attempt to
can satisfactorily rebuff, he will outline recorded as a hard copy a charge against the blamed.

The arrangements of Chapter XIX of the Code with regards to the encircling of the charge
ought to be painstakingly counselled. Sections 211 to 218 show the structure wherein an energize
must be drawn and the points of interest which must be entered in that; and sections 219 to 223
show how charges might be joined, when they should be in the elective structure, and what people
might be charged mutually. Unique consideration is required in the matter of joinder of charges. It
has been held by the Privy Council that misjoinder of charges against the express arrangement of
law vitiates a trial.

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 The charge will at that point be perused and disclosed to the denounced and he will be asked
whether he is liable or cases to be attempted. On the off chance that the denounced concedes, the
magistrate will record the supplication and may in his caution convict him subsequently; yet it is to
be recollected that a request of liable must be recorded when the blamed individual raises no
resistance by any means. In the event that, for instance, he concedes material realities, yet denies
blameworthy information or aim, the request can’t be viewed as one of ‘guilty’. In the event that the
blamed will not argue or argues ‘not guilty’ he ought to be called upon to enter upon his safeguard
after the arraignment case is shut.

On the off chance that the charged doesn’t argue as above or cases to be seared the
magistrate will fix a day for the assessment of the observers for the arraignment. The magistrate
may allow the interrogation of any arraignment observer to be conceded until some other observer
or witnesses have been analyzed and may review any observer for further questioning.

After the charge has been surrounded the magistrates should demand everyday hearings
until the arraignment proof is finished up. In this association, the guidelines with respect to the
quick transfer of cases might be deliberately considered.

After every one of the observers for the indictment have been analyzed and before the
blamed is approached for his guard, the court must inspect the denounced and question him, for the
most part, looking into the issue as required by Section 342 of the Code, to empower the charged to
clarify any conditions showing up in the proof against the charged. An assessment of the denounced
for that reason can likewise be made at any prior phase of the case however such assessment at the
finish of the indictment proof is obligatory.
The magistrate will undoubtedly cause the generation of and hear all observers whom the
charged wants to call and to consider any narrative proof depended on by him. The main special
case to this standard is the place the magistrate thinks about that in naming any observers the object
of the blamed is to cause vexation or delay or to overcome the parts of the bargains.

On the off chance that the magistrate will not get any proof required by the denounced, he
should record his purposes behind such refusal recorded as a hard copy. At the finish of the trial the
magistrate must record his finding and if there should be an occurrence of conviction, pass a lawful
sentence.

Trial of Warrant Cases Instituted on Complaint

In warrant cases founded in a manner other than on a police report, when the blamed shows
up or is brought under the steady gaze of the Court, the magistrate should without a moment’s delay
continue to hear the complainant and accept all such proof as might be delivered on the side of the
indictment.

The magistrate is additionally required to find out from the complainant or something else,
the names of any people prone to be familiar with the realities of the case and to have the option to
give proof for the arraignment, and must call such people and take their proof.

The nonappearance of the complainant, where there is one, doesn’t influence the procedures
with the exception of for a situation initiated upon protest which might be legitimately aggravated,
and the Court can propel his participation, if important.

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 Along these lines, in a warrant case, it is the obligation of the magistrate to cause the
creation before him of all material proof for the indictment and to hear it. In the exemption above
insinuated, the magistrate has the capacity to release the denounced on the complainant making
default.
In the wake of taking the proof and making such assessment of the denounced as he may
suspect important, if no case is made out which, if unrebutted would warrant a conviction, the
magistrate should release the charged, and record his purposes behind doing as such. Assuming,
notwithstanding, at any past phase of the case the magistrate believes the charge to be unfounded,
he may record his purposes behind that conclusion, and release the denounced.

In the event that an at first sight case is made out which the magistrate is capable to attempt
and which he considers could be satisfactorily rebuffed by him, he should outline a charge. On the
off chance that the magistrate isn’t skilful to attempt the case made out or thinks about what he
can’t sufficiently rebuff the blamed whenever sentenced he should remain the procedures and move
the case to the fitting court which is capable to attempt it.

The charge ought to be perused out, and disclosed to the denounced, and he ought to be
approached to argue to it.

On the off chance that the denounced will not argue or argues not blameworthy he ought to
be required to state at the beginning of the following becoming aware of the case, or if the
Magistrate for motivations to be recorded as a hard copy so thinks fit, forward with whether he
wishes to cross-examine any of the observers for the indictment whose proof has been taken before
the encircling of the charge. The procedure subsequent to this stage is exactly the same as explained
in cases instituted on the police report.

An Analysis of the Procedure of Trial of Summons Cases

Summons Cases and Warrant cases are two types of cases tried by a Magistrate on the basis
of the offences that have been committed by the accused. Section 2 (w) of the Code defines
summons cases as those cases which are not determined to be a warrant case.

Thus, it is vital to define a warrant case now. Section 2 (x) defines warrant cases where the
punishment prescribed by the law for the offence tried is more than 2 years of imprisonment
including incarceration for life and the death penalty.

Hence, cases relating to the trial of offences for which the prescribed punishment is 2 years
of imprisonment or less.

Introduction
The Code of Criminal Procedure perceives four separate techniques for the procedure in the
trial of criminal cases by magistrates, specifically:-

a. the methodology endorsed for the trial of summons cases,

b. the methodology endorsed for the trial of warrant cases founded on police reports,
c. the methodology endorsed for the trial of other warrant-cases and
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 d. the methodology endorsed for summary trials.
Expressed, by and large, there is, in the summons-case, commonly a notice of the substance
of the proof and guard and no more. With respect to different trials under the steady gaze of a Court
of Sessions or a magistrate empowers the managing official to have the proof of each witness
brought down recorded as a hard copy, in the court language, from his correspondence in open
court.

In cases where the managing official has brought down the proof with his very own hand or
has made it be brought down recorded as a hard copy from his transcription in open court as set
down in sub-section (1) of section 356, he need not make a notice of the substance of what the
observers remove.

The denounced in a criminal trial will be allowed to be present during the trial, except if it
gets vital for him to stay standing for a particular reason, for example, recognizable proof or
something else. Such office agreed to the blamed will notwithstanding, be subject to the setup show
followed in the Courts that everybody concerned should stand when the Presiding Officer enters
and leaves the Court.

Trial of Summons Cases

As already mentioned above, a summons case is one where the offence tried is punishable
with an imprisonment of two years or less. These cases are ushered as summons case because the
Magistrate is obliged to issue a summon to the accused person informing him of the offences
alleged to be committed by him and giving him an opportunity to appear voluntarily.

If the accused person fails to appear on the issue of summons, the Magistrate assumes the
power to issue a warrant of arrest against such person.
In a summons-case, when the blamed individual is under the watchful eye of the Court,
points of interest of the offence of which he is blamed are expressed to him and he is asked to show
cause why he ought not to be indicted.

No conventional charge is readied. On the off chance that the charged concedes that he has
submitted the offence, his affirmation ought to be recorded as almost as could be expected under the
circumstances, in his very own words; and on the off chance that he shows no adequate reason why
he ought not be indicted, he might be sentenced as needs be.

On the off chance that the denounced denies that he has submitted the offence, the
complainant and his observers must be inspected, the charged must be heard, and proof created by
him taken. The gatherings are required to have their particular observers present at the conference
and it is available to them to apply to the Court, in adequate time, to give a procedure to constrain
the participation of any observer or the creation of any report or other thing required in proof.

The expense of the procedures and the sensible costs of witnesses ought to be paid by the
gatherings, individually.
At the point when the parties and their proof have been heard, the magistrate will pass a
request for vindication or conviction, all things considered. A blamed individual might be indicted
for any offence triable as a summons-case of which he might be seen as blameworthy; whatever the
idea of the offence indicated in the protest or summons.

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 In a summons-case organized on the grievance, if the complainant neglects to go to on any
day fixed for hearing, the blamed ought to be absolved except if the magistrate thinks appropriate to
defer the consultation to some other day. The magistrate can likewise abstain from the
complainant’s participation and continue with the case.

A summons-case may, with the authorization of the Magistrate, and for adequate grounds,
be pulled back at any phase before the request is passed and the blamed absolved. Section 345 of
the Code allows certain offences, some of which are summons cases, to be intensified without the
consent of the Court, and ought to be perused with section 248.

Different offences, including that of causing grievous hurt, culpable under section 325,
Indian Penal Code, are compoundable with the authorization of the Court. Offences may, with the
authorization of the Appellate Court, be aggravated after conviction, and, with the consent of the
Court to which the case has been submitted, after responsibility.

In a summons-case initiated generally than on protest, the magistrate may for adequate
motivations to be recorded by him, stop procedures at any phase without articulating any judgment
both of absolution or conviction and may immediately discharge the charged; yet a magistrate of the
second or second rate class can act as such just with the past authorization of the District
Magistrate.

It most of the time happens that candidates for amendment ask that no appropriate open door
was given to them to call observers to disprove the proof for the arraignment, and there is regularly
nothing on the record to show that this claim isn’t all around established.

Under section 244 of the Code of Criminal Procedure, the charged, in a summons case, is
essentially liable for the creation of his proof upon the arrival of hearing; yet even in these cases the
Court should, as an issue of safeguard, at the finish of the case for the arraignments determine from
the denounced whether he has any observers, and ought not decline to give him a further chance of
bringing or gathering observers who may not be available in Court except if apparently their proof
isn’t material or that the blamed has been wilfully careless in the issue.

In each summons-case in which no observers are created for the protection, the Court should
record either that the blamed doesn’t wish to call observers, or that for reasons expressed he has
been denied a further chance of doing as such.
All together that people denounced in summons-cases may have a superior chance of
realizing what the law expects of them, a statement has been added to the type of summons notice
the individual tended to that, except if he is set up to concede the offence with which he is charged,
he should expedite his witnesses with him the day fixed for hearing.

SUMMARY TRIALS

Summary trial is an abridged form of regular trial and is a short-cut in procedure.

Considering the risks involved in such short-cuts, it was considered necessary that only senior and
experienced judicial officers should be empowered to try certain petty cases summarily. A summary

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 trial implies speedy disposal and all cases should be tried by the summons procedure, whether the
case is summons case or warrant case. No formal charge is framed.

Power to try summarily (Section-260 to 261): Notwithstanding anything contained in this

code', any CJM, Metropolitan Magistrate or any first class magistrate specially empowered by the
High Court, may, if he thinks fit, try the offence in a summary manner. The offences are-

a) Offences not punishable with death, life imprisonment or imprisonment for a term
exceeding 2 years.

b) Theft (Section-379 to 381 IPC) of property not exceeding 2000 rupees

c) Receiving/retaining stolen property not exceeding Rs. 2000.

d) Assisting in the concealment/disposal of such stolen property.

e) Lurking house trespass (Section-454/456 IPC)

f) Insult with intent to provoke a breach of the peace (Section-504 IPC) and criminal
intimidation (Section-506 IPC)

g) Abetment of any of the foregoing offences.

h) An attempt to commit any of the foregoing offences, when such attempt is also an
offence.

i) Any offence constituted by an act in respect of which a complaint may be made under
section- 20 Cattle Trespass Act 1871.

However, if in the course of a summary trial, it appears to him that the nature of the case is
such that it is undesirable to try it summarily, the magistrate may recall any already examined
witness and rehear the case afresh.

The summary procedure is to be applied to all offences irrespective of the fact whether any
offence is punishable under the IPC or not.

Further a magistrate of second class may be empowered by the High Court to try summarily
any offence which is punishable only with fine or with imprisonment for a term not exceeding 6
months (with/ without fine) (Section-261).

Procedure for summary trials (Section-262): All cases should be tried by the summons
procedure and no sentence of imprisonment for more than three months can be passed in any
conviction.
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 If the court considers that a longer sentence is necessary in the interest of justice in any case,
the trial should be held as in a warrant case or as a summons case according to the nature of the
offence. But a sentence exceeding three months cannot be passed in summary trials.

Record in summary trials (Section-263):

I. serial number of case.

II. date of the commission of the offence

III. date of report/complaint.

IV. name of complainant.

V. name, parentage and residence of the accused.

VI. offence complained of, and the offence (if any) proved, and value of the
property in respect of which the offence has been committed

VII. plea of the accused and his examination

VIII. finding

IX. sentence/other final order

X. date on which the proceedings terminated.

Judgment (Section-264): In every case in which accused does not plead guilty, the
magistrate shall record the substance of the evidence and a judgement containing a brief statement
of the reasons for e finding.

Language (Section-265): Every such record and judgement shall be written in the language
of the court and signed by the magistrate.

8: PLEA BARGAINING

Plea of Guilt and Plea Bargaining Under the Cr.P.C, 1973

Plea Bargaining can be portrayed as a procedure whereby the charged may bargain with the
prosecutor for a lesser penalty in return of a guilty plea. This article, therefore, provides the study of
the plea of guilt and plea bargaining under the Code of Criminal Procedure, 1973.

Plea of Guilty

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 A ‘guilty plea’ is an admission as to the guilt of having committed the criminal act with
which the accused is charged by the court.

Procedure
The procedure to plead guilty is usually divided into three steps:-

FACTS
The facts are usually the events described in the charge-sheet and they are read out in court
by the prosecutor. The accused will go through the facts with his/her lawyer before entering a guilty
plea. If s/he does not agree to the facts, s/he should not plead guilty.

ARRAIGNMENT
Arraignment is the part of the guilty plea process where you tell the court how you plead. In
this process, the judge reads out the charge one by one and the accused is asked how he pleads to
each of the charges separately. If the accused wishes to accept the charge, he pleads “guilty”.

PLEA ENQUIRY
It refers to a series of questions (generally 4 questions) that the judge is likely to ask if you
plead guilty. These are:

Are you pleading guilty voluntarily?

Do you understand that by pleading guilty, you are admitting to facts that make up a
criminal offence?

Do you understand the consequences of a guilty plea, including that you are giving up your
right to have a trial by pleading guilty?

Do you understand that the judge does not have to follow the sentence that your lawyer or
the State is recommending?

In petty offences, the judge may directly proceed with the sentencing without the plea
enquiry process.

Provisions of CrPC.
Sessions Trial
In a trial before a court of sessions following three provisions in the Code namely Sections
228(2), 229 and 230 speak of the plea of guilty. Under Section 228 (2), where the Judge frames a
charge in a Sessions Trial, the charge shall be read and explained to the accused and the accused
shall be asked whether he pleads guilty of the offence charged or claims to be tried.

If the accused pleads guilty, the Judge u/s 229 shall record the plea and may, in his
discretion convict him thereon. However, if the accused refuses to plead, or does not plead, or
claims to be tried or is not convicted on his plea of guilty the Judge u/s 230 shall fix a date for the
examination of prosecution witnesses and documents.

Trial of warrant cases instituted on the police report

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 Sections 240(2), 241 and 242 of the Code deal with the trial of warrant cases instituted on
police report by Magistrates. The provisions have the same wordings as Sections 228(2), 229 and
230 respectively.

Trial of warrant cases not instituted on the police report

For warrant cases instituted otherwise than on police report, provisions for the purpose can
be read in Sections 246(2), 246(3) and 246(4) of the Code which is again similarly worded as the
previous sections. However, in this case, the prosecution evidence (witness and documents) are
recorded before the accused is explained the charges and before s/he has given an opportunity to
plead.

Thus, if the accused refuses to plead or does not plead or is not convicted by the judge, the
accused u/s 264 (4) is given an opportunity to cross-examine any of the prosecution witnesses
already called.

Trial of summons cases

For the trial of summons cases, relevant provisions can be found in Sections 251, 252,
253(2) and 254 of the Code. Also, in summons cases, u/s 253 (2) the accused is allowed to plead
guilty by transmitting a letter mentioning his plea along with the requisite fine mentioned in the
summons to the court.

Offences where a guilty plea is acceptable

The CrPC does not specify any offences where the guilty plea is not acceptable. Thus, the
general practice is that an accused can plead guilty in any offence. However, on the basis of the
seriousness of the offence (more the punishment, more serious is the offence) and explanation is
given by the accused, the court is given complete discretion in above provisions (Sections 229, 241,
etc.) to decide whether it wants to convict the accused or not.

Stages for Pleading Guilty

First, in general, the plea of guilty is always required to be taken as soon as the judge frames
the charge and reads it out to the accused. In a sessions trial or trial of warrant cases instituted on
the police report, the charge is framed as soon as the trial commences after the opening statement of
the prosecution.

However, in the trial of warrant cases not instituted on police report and summons cases, the
charge is framed after the prosecution evidence has been taken. Thus, in these circumstances, the
guilty plea can be taken after the prosecution has examined its evidence and the judge has framed
the charge.

The question remains is can the guilty plea be taken at a subsequent stage of the trial.

STATE OF MAHARASHTRA v. SUKHDEO SINGH, [AIR 1992 S.C. 2100]

In the trial court, the charge against all the five accused was framed on the 2nd September
1988. All the five accused pleaded not guilty to the charges framed and claimed to be tried. After
the recording of the plea of the accused, the proceedings were adjourned to 19th September 1988.
On that date, accused no. 1 (Sukhdeo) orally informed the Trial Judge that he had killed General
Vaidya and did not want to contest the case.

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 The trial judge gave him time to reflect till 26th of September when the accused No.1
admitted his guilt by filing a Written Statement. The SC first observed that “we see no reason why
the Court could not act on the admission or confession made by the accused in the course of the trial
or in his statement recorded under S.313 of the Code.” Further, after considering the provisions of
Section 226 to 229 of the Code relating to Sessions Trial in Chapter XVIII of the Code, the
Supreme Court proceeded to state thus:

– “There is nothing in this chapter which prevents the accused from pleading guilty at any
subsequent stage of the trial. But before the trial Judge accepts and acts on that plea he must
administer the same caution unto himself.”

Plea Bargaining
Plea-bargaining refers to pre-trial negotiations between the accused and the prosecution,
during which the accused agrees to plead guilty in exchange for certain concessions by the
prosecutor. The accused pleads guilty to a lesser offence or to one or some of the multiple offences,
in exchange for more lenient sentencing recommendations. Thus, the accused benefits by way of a
discount for saving the state the unnecessary expense of convening a trial.

Relevant Provisions
Plea bargaining has been introduced as a part of the judicial reform program suggested by
the Malimath Commission report and on the recommendations of the 177th report of the Law
Commission of India.
On 11 January 2006, Chapter 21-A containing Sections 265-A to 265-L on ‘plea bargaining’
was inserted by the Criminal Law (Amendment) Act, 2005 into the Criminal Procedure Code, 1973.
The provisions can be summarized briefly as follows:

 An accused can file an application for plea-bargaining if he or she has not been
convicted before,
 The application should be filed by the accused voluntarily,
 The judge would decide if the intention was mala fide or bona fide,
 Offences that affect the socio-economic condition of the country or those committed
against a woman or a child below the age of 14 years or those where the accused is involved in an
offence punishable with death, life imprisonment or imprisonment more than seven years are
excluded from the purview of plea bargaining,
 The victim may be awarded compensation.

Withdrawal of “Plea of Guilty”

In case of a conviction based on the guilty plea of the accused, the courts typically do not
allow the withdrawal of such plea unless the court is satisfied that there was some kind of injustice
involved. Under Section 265D, even when the accused and the prosecution or complainant fail to
mutually agree on the plea bargaining concessions, the process is initiated again and withdrawal is
not allowed.

Further, under Section 265G, the Code says that there can be no appeal against the
conviction made on guilty plea on the basis of which a negotiation for plea bargaining was given
effect to. The only recourse against such conviction is a Special Leave Petition under Article 136 or
a writ petition under Article 226 and 227 of the Constitution.

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 However, in the following circumstances, the courts may be inclined to allow the
withdrawal of a plea of guilty:

 Accused was denied effective assistance of legal counsel, as guaranteed by law.

 The plea was not entered by the accused or anyone authorized to act on their behalf.
 Plea was not made voluntarily or was entered without knowledge of the charge or
sentence.
 Accused did not receive the concessions agreed to in the plea bargain.
 Accused entered a guilty plea under the judge-approved condition that it could be
withdrawn if the court rejected the agreed-upon conditions of the plea.
 Accused entered a guilty as the result of promises or threats made off-the-record.

9: JUDGMENT AND APPEAL

Judgment And Post Conviction Orders Under Cr.P.C.

Section 2 (9) of the Code of Civil Procedure defines judgment “as the statement given by
the judge of the grounds of a decree or order”. The Code of Criminal Procedure, 1973 does not
define the term ‘judgment’ but means the same as defined under the Code of Civil Procedure.
Chapter XXVII of the CrPC, 1973 explains the meaning and procedure of passing judgment by a
criminal court.

Judgment, Decree, Order and Sentence: Differences

The terms judgment, decree, order and sentence are used synonymously in daily lives
without actually delving into the difference between these. It is often said that the court ‘passed a
judgment’ whereas actually the court passes a decree or order or sentence but never judge.
According to Section 2(2) of the Code of Civil Procedure, 1908, decree means a formal expression
of an adjudication done by a judicial authority with the purpose of determining the rights and
liabilities of the parties to a case.
Section 2(14) defines order as a formal expression of an adjudication which is not a decree.
The order basically means a decree which is passed while the case is still in the trial and the rights
and liabilities of the parties are not completely determined. On the other hand, a sentence is passed
in a criminal case for the same purpose as a decree in a civil suit.
Now, coming to the meaning of judgment, the term judgment means the reasoning or
rationale given by the court for passing any order, decree or sentence. It is the decree or sentences
which are operative and the ratio decidendi of the judgment which acts as a precedent.
For instance, A is accused of murdering B and is tried by the court. At the end of the trial,
the court finds A not guilty of the offence. The court will acquit A of all charges which are called a
sentence of acquittal and explain how evidence was less and how there was reasonable doubt and
benefit of the doubt is given to the accused. The explanatory part is called judgment.

In practice, the courts give the decree or order or sentence when the trial is concluded or
when an application is decided but, however, judgment comes after some time because the court
requires time to prepare the judgment. In People v. Ilebel, the court observed that ‘judgment is the
conclusion that naturally follows from the premises of the law and facts’.
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 In Sedgele v. Avenue, it was observed that judgment is the “determination or sentence of
the law, pronounced by a competent judge or court, as the result of an action or proceeding
instituted in such court, affirming that, upon the matters submitted for its decision, a legal duty or
liability does or does not exist”.

The procedure of Rendering a Judgment

Section 353 of the Code provides that any judgment in any criminal case by a criminal court
in its original jurisdiction must be pronounced by the Presiding Officer of that court in an open
court. Open court means that the trial must be held in the presence of the public and not in an
enclosed hidden room to ensure that the trial was fair and lawful.
Further, according to the provision, the judgment must be rendered immediately after the
termination of the trial. If the court believes that the judgment cannot be given immediately after the
trial but at a later time, notice must be given to either the parties or their pleaders about the delay in
delivering the judgment.

Section 353 entails three ways of giving a judgment by the court. These are:
1. By the delivery of the entire judgment in writing and serving the certified copies of
such judgment to the parties.
2. By reading out the judgment in an open court before the parties or their pleaders in a
language understood by the accused or his pleader.
3. By reading out the operative part of the judgment, i.e. the sentence to the accused and
explaining him/her the substance of the sentence in a language understood by him/her or his/her
pleader.
The following procedure must be followed by the court while rendering the judgment in any
of the abovementioned manners:

 If the judgment is written in full and informed to the parties or pleaders through a
certified copy, then the Presiding Officer of the court shall cause it to be reduced into writing by an
officer of the court, under his direction, in short-hand language and the transcript so prepared must
be signed by the Presiding Officer on each of the pages of the judgment and write on it the date on
which the judgment was delivered.
 If the judgment is made orally as mentioned in clause (b) and (c) above, the presiding
officer shall mention the date and sign every page of the judgment in an open court on the date on
which the oral judgment is reduced into writing. However, if the judgment is made in the own hand
of the presiding officer in the open court, s/he does not need to sign every page.
 If only the operative part of the judgment is read out and explained to the accused as
mentioned in clause (c) above, the full judgment must be given to the parties or their pleaders as
soon as possible for scrutiny or appeal, as the case may be.
 If the accused is under police or judicial custody at the time of rendering the judgment,
s/he must be brought to the court to allow him/her to hear the judgment pronounced.
 If the accused is not in custody but enlarged on bail or bond, the court will require the
attendance of the accused at the time of rendering the judgment. However, when the presence of the
accused was dispensed with during the trial and the sentence to be passed is only of fine and not
imprisonment, the court may also dispense with his attendance for hearing the judgment as well.
 If the judgment is in favour of the accused, i.e. if the accused is to be acquitted of all
charges, the court may not require the judgment to be pronounced in the presence of accused.

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  When there are more than one accused and one of the accused does not appear before
the court at the time of passing the judgment, the court may at its discretion proceed to pronounce
the judgment in the absence of the accused.
 Section 354 requires that the judgment must be written in the language of the court
unless it does not appear to the court practicable in the interest of justice.
 The judgment must contain the issues which were raised before the court to be
determined during the course of trial and it shall also specify the offence for which the accused was
tried and for which s/he is convicted and the sentence which has been imposed upon him/her
through the judgment.
 If the judgment is pronounced in a case where the maximum punishment is the death
penalty and the court passes such sentence, it must record the special reasons for passing such a
sentence.
 Further, the court shall always state the reason for passing any sentence of
imprisonment specifically when the sentence imposed is less than the mandatory sentence and when
it is more than a normal sentence in the given facts and circumstances of the case.

Post-Conviction Orders
If the judgment, as mentioned above, is that of conviction of the accused, the court is
entitled to pass certain orders besides the sentence of fine and imprisonment. Section 357 of the
Code entitles the court to pass an order for payment of compensation for the following purposes:
 To defray any expenses incurred by the victim towards the prosecution of the accused.
 To pay any compensation to the victim for any loss or injury caused to the victim by
the offence and as decided by the court. The fine amount can be used to pay such compensation and
later can be recovered from the accused itself.
 In case of any death caused due to the act of the offender and the family of the victims
are entitled to damages or compensation under the Motor Vehicles Act, 1988, the court may order
for the utilization of fine amount towards the payment of such compensation.
 To compensate the purchaser of a stolen property who purchased it under a genuine
belief that the property is not stolen and that the seller has the absolute and marketable title over the
property. However, the seller should also be aware of the fact that the sold property was stolen.
Further, the court is entitled to pass the order of compensation under Section 358 of the
Code in favour of persons groundlessly arrested by the police on the information given by some
other person or persons. The court is entitled to recover such compensation as a fine from the
person who falsely led the arrest of the innocent person.
If a case is non-cognizable under Schedule I of the Code and the Magistrate receives a
private complaint of such offence, he may pass an order against the accused, after convicting him of
such offence, to pay the cost incurred by the prosecutor, i.e. the complainant in the litigation and
any other cost incurred by the complainant due to the act or omission of the convicted person.

Besides the above orders, one most essential order that a court is entitled to pass post-
conviction is the order of Probation under Section 360 of the CrPC. Probation is a special form of
conviction order whereby the convicted person is not sent to prison but certain conditions are
imposed upon his liberty. While passing an order of probation the court must that:
1. The person is above 21 years of age,
2. The offence for which he is convicted is punishable only by fine or if it is punishable
by imprisonment, the punishment must not exceed seven years of imprisonment,
3. The person must be a first time offender and
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 4. The offence was committed under circumstances where the offence was unavoidable
or unforeseeable or the person’s intention was not free due to situation out of his control (For e.g. a
person stealing food who has been hungry for 3 days).

The Concept Of Victim Compensation Under The Code Of Criminal Procedure

Under the Indian Criminal Justice administration, an offence is presumed to be committed

against the State even though it is actually committed against the aggrieved person or the victim.

Since the approach is that the State is the Prosecutor, the only focus is on the determination
of guilt or innocence of the accused and not whether the victim’s demand for justice is fulfilled or
not. Therefore, through the Criminal Law (Amendment) Act of 2008, the Victim Compensation
Scheme was launched under the Code of Criminal Procedure.

Emergence and Evolution of Victim Compensation

Everything began in the ‘state of nature’ where there was no concept of a State and the only
law prevalent was the ‘natural law’. However, with the social contract, people gave up their rights
and the ‘State’ was vouchsafed the duty to protect the interests of its subjects.

Gradually, the State started framing laws and assisted in the development of jurisprudence in
society. As criminal jurisprudence evolved, a distinction was brought between a civil wrong and a
criminal wrong, the latter being more grave in nature. Today, crime is ‘an act against the State’ and
the State alone decides how to get to grips with a criminal act.

As society progressed, crime started to be perceived as a social evil. The existence of crime
evoked public demands to curb the crime and in the aftermath, justice is done. In contemporary
society, these two momentous tasks, i.e. to control crime and render justice is done by the criminal
justice system through the instrumentality of law and judicial punishment.
All these have together led to an uprising and the demand for a system that focusses more on
crime eradication vis-à-vis the restoration of victim and accused. In Furman v. Georgia, the death
penalty was challenged on the ground that it has proved inefficient in decreasing the crime rates and
hence, taking the life of convicts is an unnecessary violation of the right to life.
In Lockett v. Ohio, the U.S. Supreme Court empowered the sentencing authorities to
consider every factor that can mitigate the sentence of the convict. These cases not merely an
epitome of human rights activism but show the political and social unrest among the people with
respect to the present criminal justice administration.
Kuhn, in his treatise on ‘Structure of Scientific Revolution’, said: “In both political and
scientific development the sense of malfunction that can lead to the crisis is prerequisite to
revolution”. A pictorial view of the Indian criminal justice system a fortiori reveals that Kuhn’s
prerequisites to the revolution have been yielded. A sense of malfunction has developed and an
impending crisis in the form of an indiscriminate rise in crime rates can be foreseen.

Imagine Two Circumstances

John, a 17-year-old boy, is caught stealing a man’s wallet by a group of people who
ferociously impend towards him. He hits one of them and escapes from the place, but only to find

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 himself arrested by police one hour later. He apprises the police that he had been hungry for 3 days
and that even after trying hard he failed to gain a job to buy him food.

Notwithstanding this, he is tried before the court for assaulting a person to commit theft and
incarcerated for one year. In the prison, he suffers inhumane treatment of inmates and police
officials and is manoeuvred into the habits of alcohol and drugs.

Let us now imagine a 17-year-old boy, Ross, who is caught stealing a woman’s purse but
manages to hit the crowd and escape. Later, he is apprehended by the police and the matter is
referred to a Restorative Justice Conference. The boy admits his guilt before the conference
coordinator and informs him that he thieved the purse to buy him food as he had been hungry for 3
days and constantly being denied for work.

Ross informs the officials about his parents’ address and simultaneously, the police track his
parents. A conference is called in the presence of Ross, his parents, his elder brother, the victim (the
woman whose purse was stolen), few supporters of the victim and the coordinators.
The victim expounded that she had to suffer a loss of money and valuables which she had
saved to buy her son a gift for his birthday. Also, she explained that she was frightened by the way
Ross attacked and is scared to go out of home alone anymore. All this conversation leads the
parents to tears and repentance on their upbringing. They apologize to the victim and ensure her to
reimburse all her loss. Ross is accepted back to the family and the community and is not treated as a
criminal. The victim has been paid back all she lost.

The Victim Compensation in India

In India, the trial court has been empowered to pass an order for payment of compensation
from the accused to the victim besides the normal imprisonment and fine paid by him. Sections 357
and 357A specifically deal with the powers of the trial to grant compensation and costs to the
victim.
According to Section 357 of the Code, if a court passes any sentence that includes a
payment of fine, the court may order that the fine be used for any of the following purposes:
 To defray any expenses incurred by the victim towards the prosecution of the accused.
 To pay any compensation to the victim for any loss or injury caused to the victim by
the offence and as decided by the court. The fine amount can be used to pay such compensation and
later can be recovered from the accused itself.
 In case of any death caused due to the act of the offender and the family of the victims
are entitled to damages or compensation under the Motor Vehicles Act, 1988, the court may order
for the utilization of fine amount towards the payment of such compensation.
 when any person is convicted of any offence which includes theft, criminal
misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or
retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason
to believe the same to be stolen, in compensating any bona fide purchaser of such property for the
loss of the same if such property is restored to the possession of the person entitled thereto.

Victim Compensation Scheme

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 Besides Section 357, a newly inserted provision Section 357A provides for Victim
Compensation Scheme to be prepared by the State Government and Central Government. The key
points to under this provision can be enumerated as follows:
 Every State Government is required to prepare a scheme with the assistance of which
a separate fund would be created by every State for the purpose of compensating victims who have
suffered loss or injury due to any offence committed against them.
 For the purpose of this scheme, the State is required to act in coordination with the
Central Government.
 The compensation to be paid through this fund can be availed by the dependent family
members of the victim as well if the offence committed has caused the death of the victim.
Moreover, the funds can be used in cases of rehabilitation, to meet the rehabilitation expense of the
victim.
 The courts are empowered only to decide on the matter of compensation, i.e. whether
compensation should be granted or not and recommend compensation and the amount of
compensation is to be determined by the State Legal Services Authority or District Legal Services
Authority on a case to case basis.
 If the trial Court, at the conclusion of the trial, is satisfied, that the compensation
awarded under section 357 is not adequate for such rehabilitation, or where the cases end in
acquittal or discharge and the victim has to be rehabilitated, it may make a recommendation for
compensation.
 The provision also allows compensation in cases where the accused is not identified
and no trial takes place against any person but the victim is still suffering. The victim in such cases
may make an application to the District Legal Services Authority for payment of compensation.
 After receiving the recommendation from the court as aforesaid or any application by
the victim, the State or the District Legal Services Authority shall, after due enquiry award adequate
compensation by completing the enquiry within two months.
 The State or the District Legal Services Authority, as the case may be, to alleviate the
suffering of the victim, may order for immediate first-aid facility or medical benefits to be made
available free of cost on the certificate of the police officer not below the rank of the officer in
charge of the police station or a Magistrate of the area concerned, or any other interim relief as the
appropriate authority deems fit.
Lastly, Section 357B also added through the 2008 Amendment, provides that the
compensation to be paid by the offender to the victim must be any amount besides the actual
amount imposed as fine upon such person. It means that any amount ordered by the court to be paid
as fine shall be distinct from what will be ordered by the Legal Services Authority to be paid as
compensation. Under Section 357, such amount may be used to pay compensation but it must be
recoverable from the accused person.

A Study of Criminal Appeal and Courts where such Appeal Lies

Bouvier, in his legal lexicon, defines appeal as “the removal of a case from a Court of
inferior jurisdiction to one of superior jurisdiction for the purpose of obtaining a review and re-
trial”.

Part I: Appeals to the Supreme Court

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 According to Article 134 of the Constitution of India, the Supreme Court is entitled to hear
cases brought in the form of appeals from the decision of the High Court of the respective States in
a criminal proceeding conducted within the territories of India.
However, to exercise such power, the High Court from which appeal is intended must grant
a certificate under Article 134A stating that the appeal is allowed and that in the opinion of the
court, the appeal preferred is sufficient and has probative value. Criminal appeal from High Court
arises in two circumstances;
 When the court considered it momentous to reverse the decision acquitting the
accused passed by the trial court when it was to it by way of appeal and it passed a sentence of
death penalty or
 Where the High Court withdraws any case for trial before any court subordinate to its
jurisdiction and itself tries such case and passes a sentence of death in such case.
Moreover, any case that is not falling or coming under any of the two situations or
circumstances aforementioned or when the High Court refuses to give a certificate under Article
134A to appeal before the Supreme Court, an appeal can also be under Article 136 after obtaining
special leave from the Supreme Court to appeal.
Article 136 gives a broad and carte blanche discretion to the apex court to decide any matter
brought before it in the form of appeal from any order or decision of a High Court. This provision
enables the court to hear circumstances where appeal certificate has been denied and the court
thinks it would lead to the travesty of justice.

In Surya Moorthi v. Govindaswamy, the apex observed that “by way of self-imposed
discipline, the Supreme Court does not ordinarily re-appreciate or reassess the evidence unless it is
of the opinion that the lower courts have ignored any material evidence that has caused the
miscarriage of justice”.
In the year 2003, a writ petition was filed by an IAS officer who averred that there is
ongoing corruption in his department which carried on by some corrupt people and that these people
are assimilating vacancies of 4000 job for JBT officers. The petitioner requested the Supreme Court
to transfer the investigation from CBI to a Special Investigation Team and handle the trial itself.
The Supreme Court observing that it in common parlance is not allowed or expected to
reassess any evidentiary material and it can be done in extremely exceptional circumstances when
the court believes that material facts or evidence have been ignored any material evidence that has
caused miscarriage of justice denied the appeal and sent the case back for trial before the
appropriate court.
In the instant case, there was no approver. The material witness, the namely cashier,
unfortunately, died much earlier to the commencement of the investigation. Therefore, reliance may
be placed on the circumstances and mainly on the evidence of Prosecution Witnesses as to what
happened at Agra.

Thus, the Supreme Court held that here absolutely no evidence either oral or documentary or
circumstantial to conclude that the accused persons are guilty. Hence, the appeal was dismissed and
the order of the High Court was upheld.
Following are some of the circumstances in which the Supreme Court has decided that it can
exercise its power appellate jurisdiction. These are mere illustrations and may include much more:

1. If the decision rendered by the court below the apex court suffers from the deficiency
of justice and worth and is given per in curium;

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 2. If the decision rendered goes against what is categorical from the evidentiary material,
oral or documentary, which was brought before the court;
3. If the process of taking evidence or appreciating evidence by the High Court
was prima facie illegal and in the opinion of the court led to the travesty of justice;
4. If the decision rendered suffers from discrepancies with respect to the existence or
non-existence of any factual or legal presumption or physical or psychological fact which makes
it ex facie illegal;
5. If both the High Court and the Court of Session has recorded an order of acquittal,
then the Supreme Court would be reluctant to interfere with such order.

Part II: Appeals to the High Court

 Appeal against Acquittal
It has been established that the power of the High Court is to reconsider a case when it
comes before it for appeal. In such a process, the court is entitled to reassess or review any
evidentiary material brought before it during the course of the ongoing proceedings.

It is said that when the appeal brought is against the acquittal of the accused, the court
should go slow and not reach to the final conclusion of his guilt without deliberations. It is a
cardinal principle of criminal law that a person is always presumed to be innocent unless he is
proven to be guilty and the axiom is reinforced when a court has already found a person innocent.

The bling rule or the emporium principle in criminal law is that when there are two
deductions that can be derived from the facts produced before the court such that one will lead to
conviction while the other will lead to acquittal and both of them are extremely reasonable and
possible under the circumstances, the court should ordinarily give the benefit to the accused and
choose the deduction which leads to acquittal.

The most momentous rumination of the court should be to avoid travesty to justice. Section
378 of Cr.P.C provides that if the accused person(s) is acquitted by the trial court, the Public
Prosecutor may move the superior court by way of appeal moved under the direction of the State
Government. If an appeal is not sought by the government and the State considers it fit to settle the
dispute without moving the appellate court, the victim or the complainant is left without a remedy.
In Haseemuddin Mondal v. Golam Mehbub, the Calcutta High Court discerned as to the
fact that when no appeal is brought by the Prosecutor under the government’s direction attempting
to reverse the decision of the trial court to free the accused, the only remedy before the complainant
is to file for revision of the case before the Court of Session.
 Appeals against Conviction
In Rama v. State of Rajasthan, it was espied by the court that it is an ordinary belief or
common parlance that the High Court should reassess or reconvene any evidentiary material itself
and should not let it be examined by the Sessions Court in a revision or review. I
n this case, the appellant appealed before the High Court against the conviction order of
Court of Session but the apex court held that in the impugned judgment of the High Court no
information as to the number and detail of witnesses that were examined or the evidence used was
mentioned. In such circumstances, the appeal was allowed and conviction was set aside.

Part III: Appeals from Courts of Session

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 According to Section 381, an appeal from the order, judgment or sentence of the Chief
Judicial Magistrate or Chief Metropolitan Magistrate shall be heard by the Court of Sessions
comprising of the Sessions Judge or Additional Sessions Judge.
Section 381 of the Code of Criminal Procedure, 1973, admits no ambiguity as such, viewed
in its proper context and in totality it contemplates only two types of orders passed by Courts of
Session viz. order relating to the sentence of death and life imprisonment. Once these orders are
confirmed or any other order was passed thereon by the High Court, the Court of Session shall
cause such order to be carried into effect. The session’s court can do this by resorting to either
option:
1. By issuing a warrant or
2. By taking such other steps as may be necessary.

Grounds and Procedure To Appeal From an Order of a Trial Court In a Criminal Case

Under the Indian laws, a criminal case goes for trial before the trial court first which is the
Court of Magistrate or Court of Session depending upon the seriousness of the offence triable. The
trial court either convicts the accused of the charges or acquits him/her of all charges. If either party
is not satisfied with the decision of the trial court, the Code of Criminal Procedure allows an appeal
before the High Court of the State and lays down the grounds and procedure for such appeal.

Meaning of Appeal
Black’s Law Dictionary defines appeal as “the complaint to the superior court of an injustice
done or error committed by an inferior court, whose judgment or decision the court above is called
to correct and reverse”
In Wiscart v. Dauchy, the court observed that appeal means the removal of a case from the
jurisdiction of a subordinate court or inferior court to that of superior courts for the purpose of
review or retrial. Thus, in simple terms appeal is a remedy available with a person or party who is
satisfied with the decision of a judicial body provided there is another judicial body above to it in
the hierarchy.
As aforementioned, the trial court where the case is heard for the first time can either convict
the person or acquit him of some or all charges. If the person is convicted, the trial court hearts both
the parties, i.e. the Prosecution and Accused to determine the sentence of imprisonment to be
awarded to the offender. Thus, an appeal lies in three circumstances:

 Firstly, where the accused is convicted of the offence and he is unsatisfied with the
decision, he may move the High Court such conviction.
 Secondly, where the accused is convicted of the offence but the Prosecution is not
satisfied with the amount of sentence that is imposed upon him, the Prosecution can move the High
Court.
 Thirdly, where the person is acquitted and the Prosecution is unsatisfied
with the decision of the trial court, it can approach the High Court by way of appeal. All the three
circumstances of appeal have different grounds and procedure laid down in different provisions of
the Code.

Appeals against Convictions

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 Section 374 of the Code allows appeals from the order of conviction against a person
accused of an offence if the person is unsatisfied with the order. The provision entails three
situations of appeal, one from High Court to Supreme Court and second from the trial court to the
High Court and another from Court of Magistrate or Assistant Sessions Judge to Court of Session.
 Appeal to the Supreme Court
According to Section 374 (1), a person can approach the Supreme Court if he has been tried
and convicted by the High Court in its extraordinary original jurisdiction. This is a very rare case
because in India, criminal trials are conducted only in the trial courts and the superior courts usually
remand a case back to the trial court if they believe that trial has to be conducted in a proper manner
or for some other reasons.
However, the High Court has the power to take up criminal cases in its original jurisdiction
under Article 226 and 227 of the Constitution of India which is called its extra-ordinary original
jurisdiction. If a person approaches the High Court under its extra-ordinary original jurisdiction, he
has to prove the violation of a legal or fundamental right by another person.
After this, the accused person is tried and the High Court, if it thinks fit convicts the person.
Thus, according to Section 374(1), an appeal can be taken to the Supreme Court against such
conviction by the High Court.
The procedure for appeal before the Supreme Court is not provided in the Code of Criminal
Procedure but in the Constitution itself. Article 134 of the Constitution provides the following as
the procedure to appeal to the Supreme Court in criminal matters:
1. The High should have convicted the person and sentenced him to death and only then
the Supreme Court can interfere in appeal or
2. The High Court issues a certificate to the appealing person certifying that the case is
fit for appeal before the Supreme Court. Under Article 134A of the Constitution, a case is
considered fit for an appeal if there is a substantial question of law that needs to be answered by the
Supreme Court. Thus, the Supreme Court cannot be moved without the certificate of the High Court
and for any question related to facts.

 Appeal to the High Court

Section 374 (2) provides grounds for appeal to the High Court. These are:
1. The case must be tried and the accused person must be convicted by the Court of
Session or the Additional Sessions Court.
2. The sentence passed by the trial court must be for the imprisonment of seven years or
more.
3. The person convicted must be either tried separately or jointly with other accused but
for the same offence for which they have been convicted.
On these grounds, the High Court can exercise its appellate jurisdiction to hear appeals from
these conviction orders. During the appeal stage, the High Court does not look into the veracity of
the witnesses or strength of the evidence. The High Court only looks into questions of law and any
error committed by the inferior court in considering the material evidence brought on record.

The High Court is empowered to reverse the decision of the trial court if it believes that the
conviction was without any merit or if there are reasons to believe that the trial was not conducted
properly and material facts and evidence were ignored, it can transfer the case back to the trial court
with the order to take into consideration such material evidence.

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 There is no strict procedure to be followed under the Criminal Procedure Code to appeal
before the High Court. The general practice requires that the appellant submits a memorandum of
appeal stating the reasons and grounds for appeal along with the certified copy of the judgment of
the trial court.

 Appeal to the Court of Sessions

According to Section 374 (3), an appeal can be brought before the Court of Session from an
order of conviction in any criminal matter which fulfils the ground for appeal under the section. The
grounds under Section 374 (3) are:
1. The appellant must be tried and convicted by a Court of Judicial Magistrate or
Metropolitan Magistrate or Court of Assistant Sessions Judge or
2. The appellant is sentenced under Section 325 of the Code of Criminal Procedure
where the Judicial Magistrate feels that the accused deserves a sentence severe than what the
Magistrate is empowered to impose and the case is transferred to the Chief Judicial Magistrate who
imposes a severe sentence upon the accused person or
3. An order of probation has been passed against the accused person and he is unsatisfied
with the order believing him to be innocent of the offence convicted of.

Appeals by State Government against Sentences

According to Section 377 (1) of the Cr.P.C, if a person accused of an offence is tried and
convicted by the trial court but the Prosecution, i.e. the State is unsatisfied with sentence of
imprisonment or any other sentence passed by the trial court, the State Government may give
direction to the Public Prosecutor to move the High Court as appeal against such sentence.
The sole ground to appeal under this section is that the State believes that the sentence is
inadequate in proportion to the offence committed by the convicted person. A public prosecutor or
the victim or complainant is not entitled to appeal before the High Court against the sentence of
conviction even if they are unsatisfied with the sentence and believe it to be inadequate. The
adequacy of the sentence is a subjective phenomenon and it is upon the State to satisfy the court that
the sentence is insufficient to meet the desired result.

Further, under Section 377 (3), when an appeal has been filed against the sentence on the
ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the
accused a reasonable opportunity of showing cause against such enhancement and while showing
cause, the accused may plead for his acquittal or for the reduction of the sentence.
The High Court has to hear the appeal without any prejudices against the accused even if he
has been convicted by the trial court. During the course of proceeding for enhancement of sentence
of the accused, if the High Court finds that the accused has been convicted without proper merit or
on unreasonable grounds, it may also reverse the order of conviction even if the appeal was not
brought by the accused but by the State Government.

Appeals in Cases of Acquittal

Section 378 of the Code deals with appeals from an order of acquittal passed by any trial
court, be it the Court of Magistrate or Sessions Court. The appeal under this section is very wide in
nature. It allows appeal by the State as well as by the complainant and it allows appeal against
orders of acquittal in cases instituted on ordinary jurisdiction or in revisionary jurisdiction of the
Court of Session. The important procedures to be followed under this provision are:

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 1. If the appeal is taken by the State, it must be represented by the Public Prosecutor and
no one else.
2. The Public Prosecutor must act under the direction of the State Government and
not suo motu.
3. No appeal should be allowed from the order of acquittal unless leave is obtained from
the High Court to file such appeal. If the application for leave is refused by the High Court, the
appeal cannot be moved under this provision.
4. An appeal must be filed within six months from the date of the order of acquittal if the
case is instituted on a police report and within sixty days if it is filed on a private complaint before
the Magistrate.

Conclusion
While you have the right to appeal your case, there are important requirements and deadlines
that must be met or else your appeal may be considered waived. Moreover, the particularistic
approach the court typically takes in its decision making apparently sensitizes it to the substantive
characteristics prevailing in criminal appeals: the crimes are serious and there is little doubt about
factual guilt.

A Study of the Situations where No Appeal Lies Under the Cr.P.C, 1973

Everyone has a right to be heard before any order is made or any decree is passed against
him. Similarly, everyone also has a right to appeal against such order or decree if the person
believes that he was heard properly or if the deciding authority ignored material facts or evidence
while determining the issues. However, to facilitate justice and prevent malicious or meritless
prosecution, the Code of Criminal Procedure provides situations where no appeal lies from the order
or judgment of a court in criminal cases.

The reasoning for No Appeal

The rationale for not allowing criminal appeal is threefold;
 Firstly, a comparative study of crime rates in the year 2015 and 2016 carried out by
the National Crime Records Bureau shows that there has been an increase of 0.9% in the
commission of offences under the Indian Penal Code 1860 and an increase of 5.4% in the
commission of offences under the Special and Local Laws of the State. Further, the records also
depict that crimes have proliferated at an average rate of 2.6% a year (Including IPC and Special
Laws).
 Secondly, the survey conducted by the Centre for Death Penalty, New Delhi provides
that the median duration of trial for sexual offences is 1.5 years, for offences related to abduction it
is 3 years and it ranges to 5 years and 8 years for murder and dacoity with murder respectively.
Moreover, much time also elapses during the pendency of the sentence, if it is a death penalty, to be
confirmed by the High Court.
 Thirdly, the impact of incarceration on the family of the accused or convict adds more
victims to the crime and has irreparable socio-economic implications. This study is, hence,
concerned with the problem mentioned hereinbefore and the issues are enumerated further.
Therefore, if there is no end to appeal, the case continues to be tried again and again and
does not assist the courts to dispose of the pending cases but rather piles up more cases. Hence, to
ensure that cases which do not deserve to be appealed are not unnecessarily taken up before

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 superior courts, the Code has certain specific situations where appeals are not allowed in criminal
cases.

The Process of Trial in the First Court

Section 375 and 376 of the Cr.P.C deal with cases where the appeal is not allowed in a
criminal proceeding. To understand the basis of the appeal, a brief introduction to the trial
procedure is inevitable. After the investigation is complete, the Charge-Sheet or Final Report is
submitted to the Judicial Magistrate First Class or Metropolitan Magistrate as the case may be. The
Magistrate decides whether the offence is triable by him or it should be transferred (committed) to
the Court of Session.
The trial starts with the Prosecutor giving his opening statement where he explains the
charges against the accused and the evidence to be used by him against the accused. Then the
defence counsel requests the court to discharge the accused if there is not sufficient prima
facie evidence against the accused. If the person is not discharged as aforementioned, the court
frames charges as suggested by the Prosecutor against the accused and the accused is asked whether
s/he pleads guilty of the said charges or not.
If the accused pleads guilty, s/he can be convicted by the court on this basis and proceed
with the sentence. However, if the accused pleads not guilty, the court can proceed with the trial and
examination of witnesses. After the trial is completed, the court passes a sentence according to the
evidence brought before it. If the parties are not satisfied with the judgment, they have the right to
appeal to superior courts.

No Appeal When Accused Pleads Guilty

Section 375 of the Code states that no appeal lies against orders of conviction if the
conviction is made after the accused pleaded guilty of the offence charged with. The sentence can
be passed by the Magistrate or Court of Session or the High Court after hearing the guilty plea of
the accused. The only condition precedent to the application of this section is that the accused must
plead guilty of the offences he has been charged with.
In Barendra Ghosh v. Emperor, the accused/appellant was convicted for murder by the
trial court and sentenced to death on the basis of the guilty plea of one of the accused persons.
However, the High Court here observed that the guilty plea to disallow an appeal
under Section 375 must be voluntarily made and the court must be satisfied that the accused
understands the consequences and effect of such plea.
Thus, any guilty plea does not act as a bar to appeal but the plea must be voluntary, with the
knowledge that the plea will result in a conviction and with the willingness to accept the
punishment awarded by the court. The exception to this rule of no appeal is provided in Section 375
(b). The provision states that appeal can be allowed in cases where the accused pleads guilty if the
appeal relates to the extent or legality of the sentence imposed by the court.
Under Section 29 of the Cr.P.C, the Magistrate is empowered to pass a sentence of
imprisonment not exceeding three years while Chief Judicial Magistrate can pass a sentence not
exceeding seven years. If the authority is transgressed, it amounts to illegality in sentencing and
appeal can be allowed even if the accused pleaded guilty.
Moreover, if after pleading guilty, the accused feels that the sentence passed by the trial
court or any other court of the first instance is too harsh, an appeal can be allowed in such
circumstances as well to allow the accused to argue on the extent of the sentence, i.e. imprisonment
or/and fine.

No Appeal in Petty Cases

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 According to Section 376 of the Code, an appeal cannot be taken from a criminal case that
is considered petty in the eyes of law as prescribed under Clauses ‘a’ to ‘d’ of Section 376. This
provision is applicable only for appeal against an order of conviction by the accused and not against
an order of acquittal by the government. The following cases are considered to be petty
under Section 376:
 Where the case is taken on appeal to the High court and the High Court, after due
consideration, passes a sentence of imprisonment not exceeding six months or a fine of INR 1000/-
or both.
 Where the case is tried by a Metropolitan Magistrate or Court of Session and the court
after hearing evidence for both the sides convict the accused and pass a sentence of imprisonment
not exceeding three months or fine not more than INR 200/- or both.
 Where an offence is exclusively triable by a Judicial Magistrate First Class and the
court after hearing both the sides and evidence for both sides passes a sentence of fine not
exceeding INR 100/- only.
 Where the case is triable by the Magistrate and is required to be tried summarily
under Section 260 of the Code, and after the trial, the Magistrate passes a sentence of only fine not
exceeding INR 200/-
 Where the imprisonment is of nature as mentioned above and is also accompanied by
an order for payment of security for maintaining peace as required under Section 105 of the Cr.P.C.
or a direction for imprisonment in default of payment of fine as levied by the appropriate court.
 Where the court has passed a sentence including multiple fines if the total amount of
the fines so imposed does not exceed the amount stated above.
An appeal under Section 376 cannot be barred if the offence so punished as aforementioned
is combined with some other offence or any other punishment which is not stated in this provision.
Conclusion
It has already been established that in certain criminal cases, appeals are not allowed by the
Code of Criminal Procedure and there are certain exceptions to this rule as well. The question that
last remains is whether any remedy is still available in such cases before the aggrieved party.

The answer shall be in affirmative but, however, the remedy is not available under Cr.P.C
but under the Constitution. Any person aggrieved of any such sentence may approach the High
Court under Article 226 through appropriate writ petition for violation of a legal right or may
appeal to the Supreme Court under Article 136 of the Constitution if the court grants leave to
appeal.

10: REFERENCE, REVISION AND TRANSFER

Reference and Revisionary Powers of Courts under the Cr.P.C, 1973

In India, we follow a very well established hierarchy of courts whereby the Courts of
Magistrates and Courts of Sessions Judge are the trial courts and considered to be sub-ordinate
criminal courts and High Court and Supreme Court are appellate and supervisory courts and are
considered superior courts.

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 The superior courts have been established by the India Constitution and therefore, enjoy
powers of reference and revision of a case either decided by or pending before a trial court.

Reference Powers of High Court

The term ‘reference’ means to transfer or send something for the opinion of the receiver on
the matter. In this situation, the reference power of High Courts means that the High Court is
empowered to take cases referred to it by subordinate criminal courts. It means that the Courts of
Magistrates and Sessions Judge may, on fulfilling the requirement under the Cr.P.C., refer any case
to the High Court of the State stating the questions referred.

Section 395 of Cr.P.C deals with the reference powers of the High Courts in a State. Under
this provision, the subordinate courts are allowed to refer a case to the High Court for its opinion if
the subordinate court considers is necessary. The provision entails two situations when the case can
be referred to the High Court:
1. When the validity of an Act, Ordinance or Regulation is doubtful and the court
considers it invalid.
2. When, in any case pending before the subordinate court, the court believes that there is
a question of law that needs to be addressed by the High Court.
 The validity of Act, Ordinance or Regulation
According to Section 395(1) of CrPC, when a case is pending before the trial and it involves
a question with respect to the validity of any law or rules and regulation in the country and in the
opinion of the court such law is invalid but it is not yet declared invalid by the superior courts,
therefore, the trial court can refer the matter to the superior courts to check the validity of such laws.

The essential requirements for reference under this section are:

The case must be pending before the trial court

It is an essential requirement that the case in which a question of the validity of law must be
pending and not already decided by the court. The provision does not provide for any specific stage
of the proceeding when the case can be referred and thus, the general practice is that a trial court
can refer the matter to High Court at any stage of the proceeding when it considers it necessary.

However, if the trial or case is disposed of, it cannot be then referred by way of reference. It
has to be taken to superior only the parties by way of revision.

It must involve a question that directly or indirectly challenges the validity of a law
The main question before a trial court is always whether the accused person is guilty of the
charged offence or not, the validity of a law is not an issue before the trial court. However, during
the course of the trial, arguments may be raised with respect to the validity of a law or ordinance
under which the person is accused of an offence.

For instance, in the Shopian case, the accused were military officers empowered to search
and seize under the Armed Forces Special Powers Act (AFSPA) who were charged for rape and
murder. The power of the officers was challenged by the Prosecutor claiming that the AFSPA is
invalid and unconstitutional.

The law must be in the form of an Act, Ordinance or Regulation

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 The provision does not require a law to specifically be primary legislation. The court can
also refer matters with respect to an Ordinance or a delegated legislation. For instance, the first case
under the Negotiable Instruments (Amendment) Ordinance, 2015, i.e. Dasrathroop Singh Rathore
v. the State of Maharashtra, the objection was raised that the jurisdiction to courts given under the
ordinance is not valid.

The court must believe that such a law is invalid

The court must have reasons to believe that the law is invalid by virtue of it being arbitrary
or discriminatory or otherwise violating the principles of natural justice or any provision of the
Constitution.

The validity of the law must not have been already settled by a High Court or the
Supreme Court
 Case Involving Question of Law
According to Section 395(2) CrPC, if a case does not fall under clause 1 or does not fulfil
any or more of the requirements abovementioned, the trial court can still refer the matter to High
Court under clause 2 if the case involves a question of law. A question of law means which requires
the application of certain legal principle and not one where the existence of a fact is in dispute.

For instance, say a case is based on the extra-judicial confession given by the accused
person to his friend who informs the police and deposes before the court. Here, the question
whether the confession was true and voluntary is a question of fact and whether the court can
convict the accused based on such confession is a question of law.

 Revisionary Powers of Sessions Court and High Court

Revision means where a higher court calls for the record of the case decided by a court
subordinate to it to check whether the jurisdiction, procedure and legal principles were duly
followed while disposing of the case. Revision is different from appeal and review in several ways.

On one hand, revision means checking the judgment of a lower court only with respect to
the procedural and jurisdictional aspect whereas in appeal the entire case is heard again. Further, in
revision, there need not be a hearing conducted. The court can call for records and decide on that
basis. In appeal, there is always separate hearing from the very of beginning. Lastly, review means
analysis of a judgment by the court which gave the judgment.

Sections 399 and 401 CrPC deal with the revisionary powers of the Sessions Court and High
Courts respectively. Section 399 provides that a Sessions Court shall have the same revisionary
powers as the High Court under Section 401 and the procedure to be followed by the Sessions Court
is also the same. Therefore, the powers of two courts are analysed together under one common
head.

 Prerequisites to the Exercise of Revisionary Powers

Calling of Records of Case
The court, first of all, must call for the records of the case which is to be revised from the
court which previously heard the matter. The records contain the FIR or Complaint, the Witness
Statements recorded under Section 161 CrPC, the Confession recorded under Section 164 CrPC (if
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 any), the deposition of witnesses before the court, their examination-in-chief and cross-examination,
any documents brought on record and lastly, the original or certified copy of the judgment of the
court from which the revision is intended.

The Party must be Unsatisfied.

Revision of judgment, like appeal, can be brought by either party to a case who is
unsatisfied by the findings of the court which rendered prior judgment. However, the court can
revise the judgment only on procedural aspects and not on its merits.

 Discretionary Power
Section 401 states that the court may “in its discretion” exercise revisionary powers to grant
relief to a party. The term discretion awards wide powers upon the courts to accept or refuse the
revision of the judgment. The courts are required to use this discretion wisely and to ensure that
justice is not hampered.

Revisionary powers allow the court to interfere with the decision of a lower and to rectify
any error caused by it and it, therefore, is the first step to acquire the faith of people in the judiciary.
If this power is misused or abused, the only remedy left is an appeal which requires huge time and
expense of the parties.

 Available Remedies under Revisionary Jurisdiction

The courts, in their revisionary jurisdiction, are entitled to use all powers and grant all
remedies as provided under Section 386, 389, 390 and 391 of the CrPC. These remedies can be
listed as follows:

1. If the revision petition is filed by the Prosecutor against an order of acquittal, the
revisionary court may reverse the order of acquittal into conviction or order that the case is further
investigated and if any evidentiary material is found, the accused be retried.
2. If the revision is for an order of conviction filed by the accused person, the court may
acquit the accused or order that a retrial is conducted and due procedure of law be followed.
3. The court, in a revision from conviction order, may also inquire upon the findings of
the lower court on which the sentence is decided and may alter such sentence if necessary.
4. The court may, in an order of conviction, change the nature of the sentence imposed
upon the accused by the lower court. It means that the revisionary court may alter a sentence of
rigorous imprisonment to simple imprisonment.
5. If the revision is filed for the augmentation of the sentence imposed by the lower
court, the court may change the sentence and enhance it according to the materials available.
6. When a person has filed an appeal against the conviction order of the lower court
before an appellate court, the revisionary court may suspend the sentence of the accused till the
appeal is disposed of and may enlarge the accused on bail.
7. If the revision is against an order of acquittal, the revisionary court may order to arrest
the accused who was earlier released by the lower court. In such arrest, the accused have all the
rights of an arrested person as guaranteed by the CrPC.
These are the remedies that can be sought in an application for revision of a judgment of a
trial court. Revisionary powers are enjoyed by Sessions Court and High Court but the nature and
extent of the power are the same as aforementioned. A person can file a revision on the basis of the
court from the order of whose a revision is preferred.

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Transfer of Criminal Cases by the Courts

Introduction
Criminal law in India is mainly governed by Indian Penal Code, 1860 and Code of Criminal
Procedure, 1973. Former defines offences and punishments thereof while later lays down the
procedure to be mandatorily followed while pursuing a case. Chapter XXXI (Section 406 to Section
412) of Code of Criminal Procedure deals with Transfer of Criminal Cases by the courts.

Power of Supreme Court to transfer cases and appeals: Section 406 of Cr.P.C.
1. Whenever it is made to appear to supreme court that an order under this section is
expedient from the ends of justice, it may direct that any particular case or appeal to transferred
from one High Court to another High Court or from a Criminal Court subordinate to one High Court
to another Criminal Court of equal or superior jurisdiction to another High Court.
2. The Supreme Court may act under this section only on the application of Attorney
General of India or of a party interested, and every such application shall be made by motion, which
shall, except when the applicant is the Attorney General of India or Advocate General of the State,
be supported by affidavit or affirmation.
3. Where any application for the exercise of the powers conferred by this section is
dismissed, the Supreme Court may if it is of opinion the application was frivolous or vexatious,
order the applicant to pay by way of compensation to any person who has opposed the application
such sum not exceeding one thousand rupees as it may consider appropriate in the circumstances of
the case.

Explanation

A case is transferred if there is a reasonable apprehension on the part of a party to a case that
justice will not be done. A petitioner is not required to demonstrate that justice will inevitably fail.
He is entitled to a transfer if he shows circumstances from which it can be inferred that he entertains
an apprehension and that it is reasonable in the circumstances alleged. It is one of the principles of
the administration of justice that justice should not only be done but it should be seen to be done.
However, a mere allegation that it is an apprehension that justice will not be done in a given case
does not suffice. The court has further to see whether the apprehension is reasonable or not

powers of High Court to transfer cases and appeals: Section 407 of Cr.P.C.
1) whenever it is made to appear to the High Court-
a. that a fair and impartial inquiry or trial cannot be had in any Criminal Court
subordinate thereto; or
b. that some question of law of unusual difficulty is likely to arise; or
c. that an order under this section is required by any provision of this Code, or will tend
to the general convenience of the parties or witnesses, or is expedient for the ends of justice,
It may order-
i. that any offence be inquired into or tried by any Court not qualified under sections 177
to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

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 ii. that any particular case or appeal, or class of cases and appeals, be transferred from a
Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior
jurisdiction;
iii. that any particular case be committed for trial to a Court of Sessions; or
iv. that any particular case or appeal be transferred to and tried before itself.
2) the High Court may act either on the report of the lower court, or on the application of a
party interested, or on its own initiative:
Provided that no application should lie to the High Court for transferring a case from one
Criminal Court to another Criminal Court in the same sessions division, unless an application for
such transfer has been made to the Sessions Judge and rejected by him.
3) Every application of an order under sub-section 1) shall be made by motion, which shall,
except when the applicant is Advocate General of the State, be supported by an affidavit or
affirmation.
4) When such application is made by an accused person, the High Court may direct him to
execute a bond, with or without sureties, for the payment of any compensation which the High
Court may award under sub-section 7)
5) Every accused person making such application shall give to the Public Prosecutor notice
in writing of the application, together with copy of the grounds on which it is made and; and no
order shall be made on the merits of the application unless at least twenty four hours have elapsed
between the giving of such notice and the hearing of the application.
6) Where the application is for the transfer of a case or appeal from any subordinate court,
the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that
pending the disposal of the application, the proceedings in the subordinate court shall be stayed, on
such terms as the High Court may fit to impose
Provided that such stay shall not affect the subordinate court’s power of remand under
section 309
7) Where an application for an order under sub-section 1) is dismissed, the High Court may,
if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way
of compensation to any person who has opposed the application such sum not exceeding one
thousand rupees as it may consider proper in the circumstances of the case.
8) When the High Court orders under sub-section 1) that a case can be transferred from any
Court for trial before itself, it shall observe in such trial the same procedure which that Court would
have observed if the case had not been so transferred.
9) Nothing in this section shall be deemed to affect any order of government under section
197.

Explanation

A Full Bench of Madras High Court has held that where an offence consists of several acts
done in different local areas the High Court when it is made to appear to it that the circumstances
contemplated under cl. (a), (b) or (c) of sub-section (1) exist, may order to the case to be inquired
into or tried by a Court having jurisdiction over any such local areas.

Power of session’s judge to transfer cases and appeals: Section 408 of Cr.P.C.

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 1. Whenever it is made to appear to a Sessions Judge that an order under this sub-section
is expedient for the ends of justice, he may order that any particular case can be transferred from
one Criminal Court to another Criminal Court in his sessions divisions.
2. The Sessions Judge may act either on the report of the lower court, or on the
application of a party interested, or on his own initiative.
3. the provisions of sub-section (3), (4), (5), (6), (7) and (9) of section (7) can apply in
relation to an application to the Sessions Judge for an order under subsection (1) as they apply in
relation to an application to the Sessions Judge for an order under subsection (1) of section 407,
except that the sub-section (7) of that section shall so apply as if for the words “one thousand
rupees” occurring herein, the words “two hundred and fifty” were substituted.

Explanation

The provisions of sub-section (3), (4),(5),(6),(7) and (9) of section (7) and (9)of s.407
becomes applicable in case of the application to the Sessions Judge also, with the difference that
for frivolous or vexatious application for transfer he can award maximum compensation of Rs. 250
only. Where the Sessions Judge has transferred the case u/s 408 to the Court of the Additional
Sessions Judge, who has already begun the trial, a subsequent trial of the same case before the
Sessions Judge was illegal and beyond his jurisdiction.

Withdrawal of cases and appeals by Sessions Judge: Section 409 of Cr.P.C.

1. A Sessions Judge may withdraw any case or appeal from, or recall any case or appeal
which he has made over to, any Assistant Sessions Judge or Chief Judicial Magistrate subordinate
to him.
2. At any time before the trial of the case or the hearing of the appeal has commenced
before the Additional Sessions Judge, a Sessions Judge may recall any case or appeal which he has
made over to any Additional Sessions Judge.
3. Where a Sessions Judge withdraws or recalls case or appeal under subsection (1) or
subsection (2) he may either try case in his own court or appeal himself, or make it in accordance
with the provisions of this court to another court for trial or hearing, as the case may be.

Explanation

A Sessions Judge cannot withdraw or recall a case or an appeal pending before a Judge
which has been partly head by him. A case cannot be withdrawn and proceeded with under s. 409(1)
after the trial has commenced. Recital of a wrong section does not invalidate an order which is
otherwise within the power of the authority making it

Withdrawal of cases by Judicial Magistrates: Section 410 of Cr.P.C.

1. Any Chief Judicial Magistrate may withdraw case from, or recall any case which he
has made over to, any Magistrate subordinate to him and may inquire or try such case himself, or
refer it for inquiry or trial to any other such magistrate competent to inquire into or try the same.
2. Any Judicial Magistrate may recall any case made over by him under subsection (2) of
section 192 to any other magistrate and may inquire into or try such case himself.

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Explanation

After considering the plea of not guilty of the accused, the magistrate posted the case for
trial. Consequently, on re-organisation on the jurisdiction of the courts, the case was transferred to
another Magistrate under section 410. The transferee Magistrate is bound by the order of his
predecessor and cannot go behind the pre-cognizance stage

Making over or withdrawal of cases by Executive Magistrate: Section 411 of Cr.P.C.

Any District Magistrate or Sub-divisional Magistrate may-
1. makeover for disposal, any proceeding which has been started before him, to any
Magistrate subordinate to him
2. withdraw any case from, or recall any case which he has made over to, any Magistrate
subordinate to him, and dispose of such proceeding himself or refer it for disposal to any other
Magistrate.

Explanation

Any District Magistrate or Sub-divisional magistrate has right to make over to or withdraw
from any magistrate subordinate to him cases which have been made over to any magistrate
subordinate to him respectively vide s.411. Any case u/s 411 means any proceeding or inquiry
before an Executive Magistrate such as cases under section 107, 108, 109, 110, 132, 144, 145, 146
and 176.

The powers given by this section are very large and for that reason, they should be most
carefully exercised. The magistrate in the district should use the extensive discretion given to them
to divert the course of the procedure from its ordinary channel only when it is absolutely necessary
for interests of justice that they should do so.
Reasons to be recorded: Section 412 of Cr.P.C.
A Sessions Judge or Magistrate making an order under section 408, section 409, section 410,
section 411 shall record his reasons for making it.

Explanation

This section makes it incumbent on a Sessions Judge or a Magistrate to record reasons for
passing an order for transfer or recalling of the case or appeal under the preceding sections.

Inherent Powers of the High Court in Criminal Matters

The Code of Criminal Procedure, 1973 empowers the criminal courts in India to bring an
accused to justice and for that purpose; the legislators have drafter elaborate procedure in the
Cr.P.C. However, the Code is not drafted to take care of each and every exigent situation that may
arise. Therefore, they provided for Section 482, Cr.P.C. that deals with the inherent powers of the
High Courts of States.

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 Inherent powers as the expression depict are certain powers that the courts may exercise in
its discretion to do complete justice in a case.

Article 142 of the Indian Constitution provides inherent powers to the Supreme Court
while Section 151 of the Code of Civil Procedure, 1908 provides inherent powers to lower civil
courts.

The backdrop of Section 482

The provision specifically aims to protect the inherent powers of the High Courts and curtail
all such acts which tend to restrict or impede the exercise of power by the High Courts. This
inherent power bestowed upon the courts can be exercised in the following situations:

1. To give effect to any order passed by a subordinate court or the High Court under
Cr.P.C.
2. To curb the misuse and abuse of the power of the court to issue processes.
3. To do any act which the court deems to be in the interest of justice or vital to meet the
ends of justice.
The powers under this Section can be exercised only with respect to acts and judgments as
mentioned in the provision and the High Court cannot perform any act which is beyond the powers
granted above. It is ironical that the provision aims to protect the inherent powers of the court but
still, it itself restricts these powers. However, the provision specifically allows the courts to perform
acts to secure justice which is an open and wide provision covering all or any such act that the court
may perform.

As aforementioned, the powers under Section 482 are broad in nature and can be performed
only in exceptional circumstances. For this purpose, the apex court has laid down the following
guidelines:
1. If there is any specific remedy for a grievance already provided for under the Cr.P.C,
the court should not resort to the application of Section 482,
2. The courts should ensure that the inherent powers are used sparingly and only for the
purposes enlisted in the Code, i.e. to give effect to orders, prevent abuse and meet the ends of
justice.
3. If there is a specific bar in the Cr.P.C against the exercise of power under this
provision, the courts should avoid using them.
Further, an additional guideline or prerequisite to the exercise of power under Section 482
was provided by the Supreme Court in State of Maharashtra v. Arun Gulab. The court observed
that the power under this provision should be exercised ‘ex debito justitiae’. It means that it should
be exercised only if the demand for justice requires it to be exercised and the High Court should not
interfere with the exercise of powers of the trial court or take up such power upon itself in the name
of justice.

To Abuse the Process of Court

The term ‘process’, in legal parlance, means any act done or taken by the court to allow the
initiation of the proceeding or to ensure a smooth, fair and expeditious continuance of proceeding.
For instance, the issue of summons to the witnesses, issue of a warrant to the accused, issue of
notice to any person required under the law to be notified, etc. are called processes.

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 In Ganga Prasad v. State and Anr., the court observed that at several times the case filed
before the courts are with malicious intentions and only to threaten parties by the issue of processes
by the courts. The court observed that, therefore, the filing of the case sometimes, in itself, is
oppressive and the courts should not allow such abuse or misuse of the powers of the court.
In Sankatha Singh v. State of Uttar Pradesh, the court held that the High Court cannot exercise
any such function under this provision which is prohibited by Cr.P.C or not allowed under given
circumstances.
There is a twofold test to determine whether there is an abuse of the processes of the court or
not:

1. Whether a bare statement of facts of the case would be sufficient to convince the High
Court if it is a fit case for interference at an intermediate stage.
2. Whether in the admitted circumstances it would be a mock trial if the case is allowed

To Secure the Ends of Justice

The clause is specifically added in the provision to protect the independence of the judiciary
and its administration of justice to the aggrieved. According to this part, the High Court can protect
its powers to perform any act or function that may be required to be performed for the interest of
justice.

The apex court observed in Madhu Limaye v. State of Maharashtra, that the conditions
applicable to the exercise of power under Section 482 apply mutatis mutandis to the exercise of
power to secure the ends of justice as well. Therefore, the court while taking a step to meet or
conform to the ends of justice must ensure that:
1. If there is any specific remedy for a grievance already provided for under the Cr.P.C,
the court should not resort to the application of Section 482,
2. The courts should ensure that the inherent powers are used sparingly and only for the
purposes enlisted in the Code, i.e. to give effect to orders, prevent abuse and meet the ends of
justice.
3. If there is a specific bar in the Cr.P.C against the exercise of power under this
provision, the courts should avoid using them.

Nature of Section 482

In Raghubir Saran v. the State of Bihar, the court held that the power under Section 482 is
extraordinary in nature and should be used with due consideration to law and justice and the
requirements of the Code. In State of Haryana v. Bhajan Lal, the court stated that it is impossible
to enlist an exhaustive list of situations or circumstances where the power under 482 can be used.
However, the following circumstances can be considered fit to the exercise of such power:
1. Where after the recording of FIR or complaint by the police or Magistrate
respectively, the High Court believes that there are no sufficient grounds to believe the commission
of an offence, it can reject the FIR and disallow investigation.
2. Where the FIR recorded by the police officer does not disclose information sufficient
to conduct an investigation or believe it to be a cognizable offence and initiate an investigation.
3. Where the allegations concocted against the accused in the FIR or the complaint, as
the case may be, are not substantiated sufficiently by the evidence.
4. Where the information given to the police by any person does not disclose the
commission of a cognizable offence but inclines towards the commission of a non-cognizable

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 offence, the police officer is not empowered to conduct an investigation unless otherwise authorised
by the court.
5. Where the court believes that the information given to the police or the Magistrate is
untrue and of a nature that it prima facie does not show any credible allegation to constitute a
charge against the accused.
6. Where the court has reason to believe that a proceeding is initiated and the case is
instituted with pure malafide intentions or certain ulterior motives or wrecked vengeance.
Features of Section 482
The following is a list of feature or traits of the power under this provision of the Code:

1. It is at the discretion of the High Court whether to accept or refuse the jurisdiction to
exercise the power under this provision when a request is specifically made before it.
2. The Section is not limited to the exercise of power in cases which are pending before
the High Court itself but the court can use power in any case that comes to its notice.
3. The power under this provision is exercisable only if the aggrieved party has no
alternate remedy under any law of the land and he is subjected to grave injustice.
4. The provision empowers the court to grant any relief to any person even though the
person has filed a petition under this provision for such relief.
5. The inherent powers derive its meaning and significance from its inception. It means
that the reason why the courts were established shows their inherent powers. For instance, the civil
court was established to resolve disputes and thus, civil courts can take any step to resolve such
disputes. Supreme Court was established to protect the Fundamental Rights and thus, its inherent
power is to protect such rights.

Conclusion
These powers as stated above are very unnatural and broad and very easily subject to
manipulation and therefore, the courts are required to use it with wit and wisdom and ensure that no
abuse of its power takes place. It has been a common scenario where a person suffering from a
money dispute does not file a civil suit for recovery but a criminal case for cheating or dishonest
misappropriation of money. In cases like such, it is necessary that the court intervenes and dismisses
such efforts of abusing its powers.

11: PREVENTIVE MEASURES AND SECURITY PROCEEDINGS

Preventive Action By A Police Officer under Cr.P.C

The article discusses Preventive Action By A Police Officer Under The Code Of Criminal
Procedure. The primary object of criminal procedure is to provide machinery for the administration
of substantive criminal law. Therefore, the Code enacted elaborate pre-emptive measures to provide
for any preventive action to be taken by a police officer to prevent the commission of a cognizable
offence.

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 These matters are contained in Sections 149 to 153 of the Code. For expedience, these
provisions or the circumstances in which the power can be exercised in divided into three parts.

Part I: Prevention of Cognizable Offences

Section 149 of the Code provides that “every police officer may interpose for the purpose of
preventing, and shall, to the best of his ability, prevent the commission of any cognizable offence”.
This section implies that a police officer is empowered to take any preventive action to stop a
cognizable offence from being committed. A cognizable offence, as defined under Section 2 (c) of
the code, means “an offence for which the police has the power to arrest and investigate without the
written authority of the Magistrate”.
A general reading of the provision makes it categorical that the powers under this provision
are very wide. The use of the words “to the best of his ability” signifies that the section can be used
to arrest and detain a person in custody, to search any place related to the commission of a
cognizable offence and require any person to be interrogated for the purpose of prevention of the
crime.

It may be noted that the section uses the word “shall” in the provision. It implies that it is not
the power or right of the police officer to prevent a cognizable offence but a binding duty, breach of
which can result in departmental proceedings.

In Ayyappakutty v. State, the court held that “display of photos of criminals are evidently
preventive action which the police could resort to under the code”.
Further, Section 150 provides that when an information with respect to an intention or
design to commit an act which shall be a cognizable offence under the Code, is received by a police
officer, such officer should transmit the information to his superior officer or any other officer
whose duty is to prevent and take cognizance of such offences (usually, the officer in charge of a
police station). The code vests power to arrest and investigate upon an officer of certain specific
rank, for instance, Sub-inspector.
However, it is possible that at the time when the information is received the officer in charge
(Inspector or Sub-inspector, as the case may be) and all the sub-inspector of police are absent from
the station house and the information may be recorded by an officer of a junior rank (such as a
constable or Assistant Sub-inspector). Thus, since such officers have not been empowered to take
action under the code, it is their duty to transmit information to the police officers to whom he is
subordinate.

Section 151 empowers a police officer “to make an arrest without orders from a Magistrate
and without a warrant, the person designing the commission of a cognizable offence, if it appears to
such officer that the commission of the offence cannot be otherwise prevented”. Thus, Section
151 empowers the police officers with similar powers as in the investigation of a cognizable case.
For the application of Section 151, the following essentials or requirements must be proved:
 The officer must have substantial knowledge of the design to commit an offence,
 The offence must be a cognizable offence according to Schedule 1 of the code,
 The arrest must not be the first recourse to prevent the offence,
 The officer must have a reasonable belief that the commission of the offence cannot
otherwise be prevented.
The Supreme Court has held that if the requirements for the exercise of power under Section
151, Cr.P.C. are not fulfilled and the person is arrested, the arresting authority may be exposed to

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 proceedings under the law[Ahmed Noormohmed Bhatti v. the State of Gujarat, (2005) 3 SCC 647.].
It has further been said in Manikandan v. SI of Police that a person arrested on a mere suspicion
cannot be said to be a person against whom commission of a cognizable offence or non-bailable
offence is alleged or made out and so cannot, without more, be remanded to judicial custody and
should be enlarged on bail treating the case as that of a bailable offence.

The rules laid down in the code for arrest shall apply mutatis mutandis to arrest under this
provision as well[Shyam Dattaray Beturkar v. Executive Magistrate, Kalyan, 1999 Cri. L.J 1338
(Ker).]. Section 151 (2) provides that “no person arrested under Section 151 (1) shall be detained in
custody for a period exceeding twenty- four hours from the time of his arrest unless his further
detention is required or authorized under the provisions of the code”. This provision is in
consonance with Section 57 of the code which provides for the procedure after arrest in general.
The section has to be read with Sections 76 and 167 of the code.
Section 76 provides that any person who is arrested shall be produced before the
jurisdictional Magistrate within 24 hours of his arrest. According to this provision, the investigation
by a police officer should be completed within 24 hours before the arrested person is produced and
the legislative intent behind this part is that the officer may produce the arrested person and all the
evidence before the Magistrate at once and initiate the trial.
However, in a practical scenario, none of this is possible. Therefore, the role of Section 167
becomes significant. According to Section 167, if the police are unable to complete the
investigation within the stipulated time of 24 hours, the Judicial Magistrate having jurisdiction of
that area may extend the detention of the arrested person by 15 days and may, from time to time,
increase it to effectuate effective investigation. In Shyam Dattaray, the court observed that the
above rule shall also apply to arrest made under Section 151.

Part II: Prevention of Injury to Public Property

Section 152 states that “a police officer may of his own authority interpose to prevent any
injury attempted to be committed in his view to any public property, movable or immovable or the
removal or injury of any public landmark or buoy or other mark used for navigation”. This section
is aimed at protecting any public property to be destroyed by acts of an individual.
The term ‘public’ is defined under Section 12 of the Indian Penal Code, 1860as “public
includes any class of the public or community but that class must be numerically sufficient to be
designated as public”. The term community cannot mean the residents of a particular household but
it has a wider implication than that[Jatindra Nath v. Manndra Nath, (1950) 51 Cri. L.J 1241.].
Further, “public property” connotes any property to which the public has access without any
restriction or with permission of the competent authority. In Ram Kishore v. State, the court
observed that public property also includes property belonging to the State camping grounds and
grounds left unoccupied for sanitary or recreational purposes.

Part III: Inspection of Weights and Measures

As asserted before, the Code of Criminal Procedure aims to provide machinery for the
administration of substantive criminal law. The Indian Penal Code which the prime substantive
criminal law specifically deals with offences related to possession and use of false weights and
measures with the intention to deceive or defraud customers of such enterprises possessing the false
weights and measures.

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 It has been occasionally noticed that several vendors possess and use false weights and
measuring instruments to increase their profits by unscrupulous means. However, the penal laws
take a stern look at these acts and such actions are made punishable under Section 264 to 267 of the
IPC. Now, the question is the determination of the fact of whether false weight is being possessed or
used or made and sold.

For the above purpose Section 153 of the Criminal Procedure Code, 1973 empowers any
officer in charge of a police station to conduct a search in such places where he has a reasonable
suspicion that a false weight or measuring technique is being used, made or sold. The exercise of
powers under this provision is subject to the following conditions:
 The place to be searched must be within the local jurisdiction of the police station,
 The search must be conducted by an officer in charge of the police station or any other
officer not below the rank of Sub-inspector,
 The search must be conducted according to the procedure for general search under
Section 103,
 The officer must have sufficient reason to believe that there are in such place “any
weights, measures or instruments for weighing which are false”,
 The intention of the owner or person in possession of such a place should be to
deceive or defraud any other person.
If the above conditions are fulfilled, the officer can conduct a search in such place without
any warrant or written authorization by the Magistrate and seize any such false weights or
measuring instruments discovered[ §153(2),CRPC 1973].

Security Proceedings under the Code of Criminal Procedure, 1973

Introduction
Security, for the purpose of Chapter VIII, means collateral in the form of a bond to pay a
specific amount on breach of the condition of the bond. Chapter VIII of the Code of Criminal
Procedure, 1973 deals with security proceedings conducted by the courts. It is not only the duty of
the criminal law to bring the offender to justice but to ensure that such offences are not repeated.

Keeping this in consideration, the lawmakers have inserted Sections 106 to 110 to empower
the courts to conduct security proceedings under the Code to prevent convicted offenders and
habitual offenders from reiterating such acts.
Security Proceedings
The code empowers the courts to conduct security proceedings for two purposes. For the
ease of understanding, the article is divided into two parts each dealing with one of the purposes for
exercising the power to foist security upon such persons.

Part I: Security for Peacekeeping

Security proceeding for keeping the peace “may be taken against a person under the
following circumstances”:
 On Conviction of an offence likely to cause a breach of the peace – This provision
and provisions hereinafter are to ensure the maintenance of public peace and tranquillity. The Code
bestows carte blanche powers to the Executive Magistrate for this purpose. Under this provision, if
a person is convicted of any offence, the nature of which is such that it will disrupt public order and

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 peace, the Magistrate may convict the person of such offence and at the time of conviction, require
the person to execute a bond prohibiting any recidivism of the same offence within three years of
his release from prison. For instance, a person who has been a part of an unlawful assembly
preparing to cause a riot in the society is believed to be committing an offence that will disturb
public order.
The important ingredients of the provision are:

Firstly, it applies to “offences under Chapter VIII of the Indian Penal Code including the
offence of assault, criminal force ad criminal intimidation”[ §106 (2), Cr.P.C, 1973.].
Secondly, the bond can be executed “with or without sureties”[ §106 (1), Cr.P.C, 1973.] to
take the guarantee in case there is a violation of the conditions of the bond and the person escapes
from justice.
Thirdly, the person must be “convicted by a court of competent jurisdiction”[ §106 (1),
Cr.P.C, 1973.] after a fair trial.
Fourthly, if the “conviction is set aside in an appeal or review or otherwise, the bond
executed shall be void”[ §106 (1), Cr.P.C, 1973.].

 In any other cases – Section 107 of Cr.P.C provides similar powers to require an
offender to execute a bond for maintenance of public serenity in any other cases where public order
disruption is likely and probable. The joint committee report on criminal law provided that “in order
to be effective, proceedings under the above section have to be taken urgently” and since these
procedures relate to “maintenance of peace and order in the society, the powers have been vested
upon the executive Magistrates”.
The objective of the provision is preventive in nature and not punitive. The section is
designed “to enable the Magistrate to take measures with a view to preventing the commission of
offences involving breach of peace or disturbance of public tranquillity”. In Rajendra Singh
Pathania v. State, the court observed that the object of the provisions is “to invoke it in an
emergent situation when prompt action is necessitated to deal with threatening apprehension of
breach of peace”.

The courts have been “very vigilant in dealing with the action of the execution in relation to
these provisions”. This was made categorical by the judgment of the Madhya Pradesh High Court
in Medha Patkar v. the State of M.P., wherein the “court awarded compensation to the accused as
the government sent them to prison for failure of furnishing bond in a case where no evidence had
been brought on record to prove that there was an anticipation of breach of peace”.

The Executive Magistrate is the head of the police force in a district who is accountable for
maintaining peace and tranquillity. Thus, “he has absolute and unqualified discretion to decide
whether or not it is imperative, for maintenance of peace, to institute proceedings under Section
107” [C.S. Reddy v. the State of A.P., 1973 Cri.L.J 1713 (AP).]. However, this discretion must be
guided by reason and not a whim. To ensure the reasonable exercise of power under this provision
the sine qua non have been obtruded by the courts:
Firstly, the Magistrate should be of “the opinion that there is sufficient ground for
proceeding against the person informed against”[ Ram Chandra Jena v. Muralidhar Onjha, 1988
Cri. L.J 218 (Ori).].

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 Secondly, the Magistrate is “bound to record the reasons for forming such opinion before
issuing notice under Section 111”[ Tavinder Kumar v. State (NCT of Delhi), 1990 Cri. L.J 40
(Del).].

Part II: Security for Good Behaviour

Sections 108, 109 and 110 of the Code provide for taking security for good behaviour from
persons involved in any kind of act constituting an offence under the Indian Penal Code. The
provisions of these sections affect the liberty of a person and hence, is violative of Article 21 of the
Indian Constitution.
Therefore, the lawmakers considered it vital to vest the power upon Judicial Magistrate “to
be exercised in accordance with the procedure established by law”. However, the provision was
“amended by the Criminal Procedure (Amendment) Act, 1980 to transfer the power from the
Judicial Magistrate to the Executive Magistrates”.
Maintenance of law and order in the community is of prime importance under the Cr.P.C.
Therefore, to attain this objective, the code empowers the functionaries to obtain security from
different classes of persons. These are:

 Proceedings against persons disseminating seditious matters – Section 108 of the

Code empowers an Executive Magistrate to “order a person to execute a bond if such person is
known to be disseminating seditious matters or matters amounting to intimidation or defamation of
a judge”. The jurisdiction under this provision is “preventive and not punitive”. The test under this
section is “whether the person proceeded against has been disseminating seditious matters or any
other matter as mentioned above and whether the court fears a possibility of recidivism”.
The second clause of the provision provides for “taking security for the dissemination of
obscene material”. In the first part, it is essential that the dissemination was done intentionally
whereas, for the second part, the intention is not a consideration. Any person who “makes,
produces, publishes or keeps for sale, imports, export conveys, sells, lets to hire, distributes,
publicly exhibits or in any other manner puts into circulation any obscene matter” shall be included
under this section. Moreover, the section does not only apply on the commission of offence but also
on attempt and abetment of the same offences.
 Proceedings against Suspected Persons – Section 109 of the Cr.P.C provides a
procedure to “check and control the persons who are likely to commit offences and it cannot be
denied that this cannot be done unless they are prevented from doing so by resorting to provisions
such as Section 109”. The provisions of Section 109 are so stringent that it may be “made an engine
of oppression unless care is taken by the Magistrates to prevent its abuse. The object of the section
is to enable the Magistrate to take action against suspicious strangers lurking within their
jurisdiction”[ Dasappa v. the State of Karnataka, 1975 Cri. L.J 1613 (Kant).].
While explaining the scope of the terms “conceal presence” under Section 109, the court
in Abdul Ghafoor v. Emperor held that “these words are sufficiently wide to cover not only the
concealment of bodily presence in a house or grove, etc. but also the concealment of appearance by
wearing a mask or covering the face or disguising in any other way”.
Now, in order to apply the provisions of Section 109, the courts have laid down two
essential conditions:
i. “The person must be taking precautions to conceal his presence, and
ii. The concealment must be with a view to committing a cognizable offence”[ State of
Mysore v. Koti Poojari, AIR 1965 Mys 264.].

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  Security Proceedings against habitual offenders – Persons who “habitually commit
offences of anti-social traits” like food adulteration or customs or corruption, not only deserve to be
punished but certain action is required to be taken against such persons to prevent recidivism on
their part. The provision deals with offences which are anti-social in nature, i.e. those directly affect
the society at large. For instance, theft may be an offence against the society but, however, it
directly affects the one whose materials have been stolen. On the other hand, food adulteration
affects everyone in general.
In Emperor v. Vijaidatta Jha, the court averred that “the object of the section is to protect
the public against hardened and habitual offenders”. The information received by the police officer
under this section “should not be vague and must indicate that person against whom the information
is given is by habit an offender”[ In re: Narendra Nath Jha, AIR 1938 Pat 533.].
Therefore, in all these situations, the code entails that an Executive Magistrate is obliged to
issue a show-cause notice urging the person to state his reasons and explain why the Magistrate
must not require him to execute a bond to ensure peace and serenity in the society and if such
person fails to show cause or the Magistrate is not satisfied with his cause, he may order such
person to execute a bond with the condition of not repeating the offence.

Dispersal of Unlawful Assemblies and Removal of Public Nuisance

Introduction
the Dispersal of Unlawful Assemblies and Removal of Pubic Nuisance. The Code of
Criminal Procedure, 1973 not only provides for power and procedure to investigate a crime but also
ensures that a potential crime is avoided. In respect of this object, Chapter X of the Code empowers
the police and other functionaries to take actions to maintain public order and tranquillity in the
society. The chapter comprises of two methods for prevention of offences and maintenance of
public order.

Firstly, the power to disperse any unlawful assembly of persons and secondly, power of
removal of public nuisance and dealing with persons causing such nuisance.

Dispersal of Unlawful Assembly

 Meaning of Unlawful Assembly
According to Section 141 of the Indian Penal Code, 1860 an ‘unlawful assembly’ is a group
of five or more persons who have one common object which may include all or any of the
following:
First – To intimidate or threaten the Central Government or State Government, Parliament
or State Legislature and/or any public servant during the discharge of his lawful duty by use of
criminal force,

Second – To impede any law or legal process from being successfully executed,

Third – To commit any mischief or criminal trespass or any other offences under the Indian
Penal Code, 1860,

Fourth – To illegally obtain any property from a person or prevent him from accessing any
public way, use of water or any incorporeal right that he is entitled to,
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 Fifth – To threaten by use of criminal force compelling a person to do what is he is legally
not bound to do or prevent from doing what he is legally bound to do.

Therefore, any group of five or more people gathered together or acting independently but
towards achieving one object which is any one or more of the five objects aforementioned is an
unlawful assembly. To constitute an unlawful assembly, it is not necessary that the assembly was
formed with the intention to accomplish said objects but if an assembly later decides to commit an
act which falls under any of the five categories, it will be considered as ‘unlawful assembly’ under
Section 141 of the IPC.

 Purpose of Dispersal
The Code grants powers to its functionaries to disperse members of such unlawful
assemblies to ensure that public order and peace is maintained in the society. The provision is
considered necessary because the formation of unlawful assembly and being a part of unlawful
assembly has been made an offence under the IPC punishable under Section 143 and if one of the
members of the assembly commit any offence towards the achievement of the common object, each
member of such assembly shall be punished for that offence. Therefore, dispersal of these
assemblies come under the prevention of crime and comes within the ambit of the scope of the
Cr.P.C.

 Procedure of Dispersal
The power to disperse the unlawful assembly can be exercised in three different ways under
Sections 129 to 131 of the Code of Criminal Procedure.

a. By Use of Civil Force: Section 129 of the Code empowers the police officers and
Magistrates to command the members of an unlawful assembly or a prospective unlawful assembly
(assembly of persons likely to commit any of the act under Section 141, IPC) to disperse and stop
violating public peace. For the purpose of dispersal of unlawful assemblies, powers are conferred
primarily on any Executive Magistrate (includes Sub-divisional magistrate and District Magistrate)
or officer in charge of a police station or any officer in his absence but not below the rank of Sub-
inspector.
Before any force can be used for the dispersal of an unlawful assembly, three prerequisites
as mentioned in Karam Singh v. Hardayal Singh should be satisfied. Firstly, there should be an
unlawful assembly with the object of committing violence or an assembly of five or more persons
likely to disturb public peace and tranquillity. Secondly, such assembly is ordered to be dispersed
immediately by the competent authority. Thirdly, in spite of such order to disperse, such assembly
does not disperse or does not, ex facie, seem to be dispersing.
The provisions under Section 129 allow the use of only civil force, i.e. command, order or
warning and therefore, in a situation which did not justify firing, firing took place and that too
without the orders of the authority, the dependants of the victim were ordered to be compensated by
the State[State of Karnataka v. B. Padmanabha Beliya, 1992 Cri. L.J 634 (Kant).].

b. By Use of Armed Forces: In connection to the use of armed forces of the nation to
disperse unlawful assembly, Section 130 of Cr.P.C provides that if the Executive Magistrate
believes that the unlawful assembly cannot be dispersed by use of civil force and its dispersal is
necessary for public security, such Magistrate may cause it to be dispersed by the armed forces.

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 The Magistrate may use the assistance of any group of persons belonging to any of the three
armed forces (Army, Navy and Air Force) and with such officers under his command, he may order
the arrest and confinement of persons who formed the part of such assembly. However, clause 3
provides that the armed forces and the commanding Magistrate should use as little force as required
and cause minimal possible injury to any person or property.

c. By certain armed forces officers in the absence of competent authority: The

provisions of Section 131 is applicable only when the public security is manifestly endangered by
the presence of an unlawful assembly and when no Magistrate can be communicated with under the
given circumstances. If these two conditions are satisfied than any commissioned or gazetted officer
of the armed forces may use the forces under his command to disperse such unlawful assembly.

Removal of Public Nuisance

 Meaning of Public Nuisance
An interpretation of Section 133 (1) of Cr.P.C will lead to the inference that ‘public
nuisance’ includes any or all of the following acts:

First – any unlawful obstruction in any public place or from anyway, river or channel which
is or may be lawfully used by the public,

Second – any trade or occupation, or any goods or merchandise, the conduct of which is
injurious to the health or physical comfort of the community,

Third – construction of any building or disposal of any substance which is likely to cause
fire or explosion,

Fourth – any building, tent, structure or tree that is in such a condition which is likely to fall
and cause injury to persons in the neighbourhood,

Fifth – any unfenced tank, well or any excavation which lies adjacent to anyway or public
place and

Sixth – any dangerous animal that may cause injury.

The above six acts individually constitute different circumstances of a public nuisance but,
however, the meaning of several terms remain ambiguous since the Code is silent about them. The
term “public place” in the first clause is not defined in the Code. In Ram Kishore v. State, the
court held that “a place in order to be public must be open to the public, i.e. place where the public
has access by right, permission or usage”. Further, in Vasant Manga v. Baburao Naidu, the court
held that “community cannot be taken to mean residents of a particular house. It means something
much wider than that”.
 Purpose of Removal of Public Nuisance
The object and purpose behind Section 133 of the code are to prevent such public nuisance
which, if the Magistrate fails to take immediate recourse to Section 133, will cause irreparable
damage to the public. To apply Section 133, the public nuisance should be short-term and should
not have existed permanently before. Therefore, in Makhan Lal v. Buta Singh, the court averred
that ‘no action seems possible if the nuisance has been in existence for a long period. In that case,
the only remedy open to the aggrieved party is to move the civil court.
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  Nature of Provisions related to Public Nuisance
Section 133 of the code provides a rough and ready procedure for removing public
nuisances and is to be used in urgent cases. The public nuisances are no doubt not as dangerous as
requiring the use of security proceeding under the Code, nor their removal is as urgent as the
dispersal of unlawful assemblies. However, the legislature considered that even public nuisances are
fraught with potential danger. Thus, require summary action for its removal.
It is pertinent to reiterate what the Punjab and Haryana High Court observed in Bhaba
Kanta v. Ramchandra. The court observed that the proceeding related to the removal of public
nuisances are “just to maintain peace and tranquillity and the orders rendered under these provisions
are merely temporary in nature”. Basically, when there is a dispute with respect to a land between
two parties, any illegal construction, etc. causes hindrances to the public as well.
Thus, the orders under any sections of removal of public nuisance come to an end when the
dispute is resolved by the civil court. Hence, the orders for the removal of public nuisance are
coterminous with the judgment or decree of the civil court.

 Procedure for Removal of Public Nuisance

According to Section 133, upon receiving any reasonable information regarding the
commission or omission of acts that cause a public nuisance, the appropriate Executive Magistrate
can exercise his powers under Section 133.
The provision empowers the Magistrate to take evidence to support its belief that public
nuisance is being committed in some part under its jurisdiction. After receiving the information and
taking evidence, if the Magistrate is satisfied that one of the six circumstances aforementioned
under Section 133 (1) exists, he may order the appropriate person to;

1. Remove such obstruction or nuisance,

2. To desist or take adequate measures to regulate the trade and occupations that are
injurious to public health and safety,
3. To restrain the construction of any establishment which is constructed illegally and
before the decree of the civil court in that regard,
4. To remove, repair or replace or otherwise fix the building or any other construction or
tree which is in a falling condition,
5. To fence such tank, well or excavation which is unfenced and hence, threat,
6. To destroy, confine or otherwise dispose of such hazardous animals who pose a threat
to the society.
To exercise the power of removal of public nuisance, the following are the sine qua non:
1. The nuisance must be public and affect the members of the society as a whole and
thus, can be removed from a public place,
2. There must be an imminent danger to property and a consequential nuisance to the
public [Kachrulal Agrawal v. the State of Maharashtra, (2205) 9 SCC 36.],
3. If the Magistrate does not take any action and direct the public to take recourse to the
ordinary course of law, irreparable damage should be caused[Vijaya Bank v. The state of Gujarat,
1999 Cri. L.J 946 (Guj).] and
4. Obstruction or nuisance should be an invasion on the public right and on individual
rights[Vijaya Bank v. The state of Gujarat, 1999 Cri. L.J 946 (Guj).].
Section 134 further provides that the order passed by the Magistrate under Section
133 should be served upon the person against whom it is made by police personally and a receipt of

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 such service should be obtained by the officer. However, the section also makes provision if the
order cannot be served to the person personally.
Clause 2 of Section 134 mandates that such orders which cannot be served should be
notified by proclamation and published in the official gazette or any other manner prescribed by the
State Government. Also, a copy of the order must be stuck up at such place or places to ensure that
the information of the order is conveyed to such person.
A person against whom such order is passed is required to adhere to the requirements of the
order and remove the public nuisance in the time and manner stipulated in the order. If a person
fails to perform his duties under such order, Section 135 (b) allows him to show cause for non-
compliance of the order and if the person fails to show cause as well, he shall be punished under
Section 136 of the Cr.P.C for an offence under Section 188 of the IPC.

12: MAINTENANCE OF WIVES, CHILDREN AND PARENTS

Persons Entitled To Claim Maintenance Under Section 125 Of The Cr.P.C

Introduction
Section 125 to 128 of the Code of Criminal Procedure, 1973 provide for “speedy, effective
and rather inexpensive remedy” to certain persons who are specifically entitled to claim
maintenance under these provisions. The subject matter of these provisions technically deal with
family matters and therefore, it is in the nature of a civil dispute.
Nevertheless, the rationale for imbibing these provisions into Cr.P.C is to accord an
accelerated and economical remedy than that is available in civil courts. The Supreme Court
in Bhagwan Dutt v. Kamla Devi justified the presence of Section 125 under Cr.P.C by stating that
“these provisions are aimed at preventing starvation and vagrancy leading to the commission of the
crime” .

Applicability of the Provisions

The provisions entailed under Sections 125 to 128 of the Code are applicable to all persons
irrespective of their religions and runs parallel to the personal laws of the parties. It means that even
if a personal law has specific and detailed provision for maintenance, it cannot make the provision
under Cr.P.C inapplicable. In Nanak Chandra v. Chandra Kishore Aggarwal, the apex held that
“sections 125 to 128 have no relationship with the personal law of the parties” .
The application of these provisions went through a great deal of turmoil during 1985 when
the apex court decided the landmark case of Md. Ahmed Khan v. Shah Bano Begum. The court,
in this case, granted the maintenance to the respondent-wife who belonged to Islam where it is
believed that no maintenance needs to be paid to the wife since the husband pays dower (reverse of
dowry) at the time of marriage.
The controversy led to the enactment of Muslim Women (Protection of Rights on Divorce)
Act, 1986 to reverse the effect of the judgment in Shah Bano. However, in Daniel Latifi v. Union
of India, the apex court once again upheld its decision in Shah Bano and the applicability of the
Act was held independent of Section 125.

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Persons Entitled to Claim Maintenance
Under certain circumstances mentioned under Section 125, a person is required to pay
maintenance to the following persons:
1. His Wife: The first person entitled to claim maintenance is the wife of the person who
is required to pay maintenance. In Savitabenben Bhatiya v. the State of Gujarat, the apex court
held that for the application of this section the “term ‘wife’ means is a legally wedded wife” . Thus,
there are two essential conditions to claim maintenance under this provision by a wife; firstly, the
wife must be legally wedded wife and secondly, the marriage must be valid in the eyes of law.
In Anupama Pradhan v. Sultan Pradhan, the court laid three criteria to determine the
status of husband-wife. First, the persons claiming to be husband and wife must have lived as
spouses for a considerable period of time. Second, it should be in the knowledge of the public that
they live together as husband and wife and third, the parties must have been married according to
their personal laws.
With respect to the condition of living together for a certain period and with knowledge of
the public, the burden is on the wife to prove that they have been living together as husband and
wife before their separation. Further, explanation (b) to Section 125 (1) provides that a “the term
wife also includes a divorced woman”. A woman cannot be divorced unless she was a legally
wedded wife of the man. Thus, the right to maintenance has been extended to a divorced woman as
well.

Now, with respect to the validity of a marriage, it always depends upon the rituals and
culture and the personal laws applicable on the parties to decide whether the marriage was valid or
not[Kumari Bai v. Anandram, 1998 Cri. L.J 4100 (MP).]. For instance, in Naresh Chandra v.
Reshma Bai, the court observed that a “marriage by an exchange of garlands is invalid” since the
parties were Hindu.
Moreover, a second marriage solemnised in the subsistence of the first marriage is invalid
and the second wife cannot legally claim maintenance under this provision. When a person claims
that his second marriage is invalid since it occurred without obtaining a decree of divorce from the
first marriage, the burden lies on him to prove that his first marriage is valid and second is,
therefore, invalid[Vimala v. Veeraswamy, (1991) 2 SCC 375.].
The courts can, however, pass an order of maintenance in case of the second marriage as
well to prevent destitution leading to criminal conduct. In Rameshchandra Daga v. Rameshwari
Rameshchandra Daga, the apex court held the second wife is entitled to maintenance under and
averred that this “decision holds good even in case of Section 125 maintenance”.

The definition of “wife” has been expanded by the courts to meet the changing paradigms of
society. In a modern society where parties are involved in a live-in relationship, several instances
have been witnessed where on the promise to marry, the man deceives the woman to live with him
and maintain a physical relationship. Now, in the case of live-in relationship, the parties live like
husband and wife and to the knowledge of the public (in most of the cases) but are not legally
married.

Thus, this question arose before the Hon’ble Supreme Court in D. Velusamy v. D.
Patchaiammal and Chunmuniya v. Virender Kushwaha in 2010 and 2011 respectively. The
court, in both cases, held that “a woman who was in a marriage-like relationship, though not a
legally wedded wife under Section 125 could claim maintenance under the Cr.P.C and the
Protection against Domestic Violence Act”.
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 2. His Minor Child: The section also obliges every person to maintain his minor child.
The essential traits of this part of the provision can be enlisted as under:
 The child must be a minor. Explanation (a) to Section 125 (1) defines ‘minor’ as any
person who qualifies the criteria laid down in the Indian Majority Act, 1875 to be referred to as a
minor. Section 11 of the Act of 1875 requires a person to be below the age of 18 years to be called a
minor in the eyes of law.
 The child can be a male or a female. The only requirement is that it must be a minor
and not be able to maintain itself.
 The child can be legitimate or illegitimate; married or unmarried. A minor married girl
is entitled to maintenance from her husband and her father both at once. However, if the father can
prove that the husband is able to maintain the minor girl he can avoid such maintenance, but if the
husband is not able to maintain the minor girl the father is bound to maintain her.
 The religion of the child is immaterial to decide maintenance under section 125.
In Noor Saba khatoon v. Md. Quasim, the Apex court held that a person cannot be absolved from
his obligation to maintain his child only because of his religion. A Muslim father similar to a Hindu
father is responsible to pay maintenance for his children under this provision of Cr.P.C.

3. His Abnormal Child: The obligation of a father to maintain his minor child, as
mentioned above, is extended to a child who has attained the age of majority if that child is “by
reason of any physical or mental disability is unable to maintain itself”. The child can be a male or
female, legitimate or illegitimate and married or unmarried. However, the father is not responsible
to maintain his married daughter if she has attained the age of majority whether she is normal or
abnormal. The responsibility to maintain a major married girl is of the husband and no one else.

4. His Father or Mother: With the change in time and societal needs, the structure of
the family changes too. As seen today, families are more nuclear and children are not willing to take
responsibility for their parents. This was anticipated by the legislators and to ensure that children
maintain their parents and they do not become an offender or a victim of the certain
offence, Section 125 includes parents to be maintained by their children.
The provision uses the term “his father or mother” which implies that the duty is bestowed
upon the son to maintain his parents. However, the Kerala High Court, in Areefa Beevi v. K.M.
Sahib analysed the section and stated that “the expression his father or mother must be taken as to
have the meaning her father and mother as well”.
Now, the next most significant issue raised with respect to this provision is whether the
terms “father” and “mother” include “adoptive father or mother” and “stepfather or stepmother”.
According to Section 3 (20) of the General Clauses Act, 1897, “father shall include an ‘adoptive
father’”, but, however, “mother” has not been defined to include the adoptive mother. In such a
situation, the Bombay High Court used its interpretative power and held that “mother” shall include
“adoptive mother” as well[Baban v. Parvatibai, 1978 Cri. L.J 1436 (Bom).].
Now, when it comes to stepmother or stepfather, the High Courts of Bombay, and Gujarat
have the same opinion. In Ramabai v. Dinesh and Havaben v. Razakbhai, these courts observed
that “having regard to the object and intention of Section 125, the term “mother” will have its
natural meaning and will not include stepmother”. The Supreme Court, on the other hand, though
agreed with the conclusions of the High Courts, yet it further opined that “a childless stepmother
may claim maintenance from her stepson provided she is a widow or her husband, if living, is also
incapable of maintaining her”. The court further added that a stepmother also cannot claim
maintenance if she has her own natural-born sons or daughters.
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Conclusion
Thus, the provision contemplates the public duty of a person who is very much able to
maintain himself to maintain those who are unable to maintain themselves. The provision does not
follow a quid pro quo system and it is no defence to claim that the parents or his wife did not satisfy
his needs or requirements and hence, he is not obliged to maintain them.
The provision is mandatory in nature and the person can approach a competent Magistrate to
deal with the issue. It is also very important to note that an earlier maximum amount of maintenance
allowed was Rs. 500/- in total which was done away by the 2001 amendment and it is now at the
discretion of the Magistrate to decide the sum of compensation.

Conditions For Passing of Maintenance Order and Alteration of Order of Allowance

Introduction
According to the Hindu Adoption and Maintenance Act, 1956, maintenance includes
“provision for food, clothing, residence, education and medical attendance and treatment. In the
case of an unmarried daughter, it also includes all reasonable expenditure of an incident to her
marriage”[ §3 (b), Hindu Adoption and Maintenance Act, 1956.]. Besides the personal law, the
Code of Criminal Procedure also provides for maintenance on the fulfilment of certain essential
conditions.
The term maintenance has not been defined in the code but it has been adjudged by the apex
court to have the same import as under Section 3(b) of the Hindu Adoption and Maintenance Act,
1956[Mangat Mal v. Punni Devi, (1995) 6 SCC 88].
Under Section 125 of Cr.P.C, maintenance can be claimed as a legal right by a wife, minor
children, unmarried daughters and parents from a person who refuses or neglects to maintain them.
The purpose of the section is to prevent criminal conduct as a result of destitution and starvation.
The lawmakers presumed that if am able-bodied person refused to maintain his kin who are
not able-bodied like him, they may take the path of criminality to satisfy their needs. Thus, Sections
125 to 128 was incorporated into the Code.

Essential Conditions for Granting Maintenance

Maintenance under Cr.P.C is not granted to everyone and under any circumstances. The
code, under Section 125, vests the right to claim maintenance only upon the wife, minor children,
unmarried daughter and parents and under special circumstances which are as follows:

1. Sufficient means to maintain:

According to §125(1), maintenance can be claimed from a person only if he has “sufficient
means” to maintain the person or persons claiming such maintenance. The expression “sufficient
means” is subjective since sufficient for one may not be sufficient for another. Also, the term
“means” may include money, property, business etc. which has also been not specified by the law.

Therefore, to fill the vacuum created by the absence of any legal explanation with this
regard, the courts have clarified the meaning and extent of each of these words.

In Chandrapal v. Harpyan, the court held that ‘means’ of a person “does not mean the
tangible property or sources of income of the husband” . The court implied that it included even the

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 ability of the person to earn and maintain his family. This was said in most clear terms in Chander
Prakash v. Sheila Rani.
The court held that “if a man is healthy and ‘able-bodied’ he must be held to possess the
means to support his wife, children and parents” . These cases establish the rule that a person cannot
evade his responsibility to maintain his dependants claiming his insolvency or joblessness.
Now, the phrase “able-bodied” has also been sifted by the courts several times. The law has
to be impartial irrespective of who the victim is and who the offender is. It cannot be expected from
a person to give up all his means as maintenance and starve himself to death. Thus, able-bodied
cannot just mean physical and mental fitness and ability to earn.

It must include social factors such as “opportunity to earn, education or experience in a field
to be able to work and also includes finance”. In Ali Hossain v. Baby Farida Khatoon, the court
observed that when it is said that a person is able-bodied, it is presumed that he is able to pay
maintenance and the court must take into account every piece of evidence required before deciding
the quantum of maintenance to be paid.
Dealing with the word ‘sufficient’, whether the means are sufficient or not has to be
determined to take into consideration the standard of living of the claimant, the earnings or income
of the husband and other financial expenses or commitments of the person against whom the
maintenance is claimed. In Re: Raibari Behera, 1983 CrLJ 125 (Ori), the court held that any debt
outstanding against the person who is liable to pay maintenance or any other urgent financial
commitments should be considered before fixing the amount of maintenance.

2. Neglect or Refusal to Maintain:

125 (1) states that there must be clear dereliction or refusal to maintain the claimant on the
part of the respondent. Such neglect or refusal can be expressed or implied and by words or by
conduct. The scope of neglect or refusal depends upon who the claimant is. For instance, in case the
claimant is a wife, neglect or refusal will mean something more than a mere failure or omission.
The husband must in clear words deny the maintenance to the wife or make it difficult for
her to live in that house. However, in case of a minor child who is not able to exercise his will or
has no volition of itself, mere failure or omission may amount to neglect or refusal. The same was
observed by the Andhra Pradesh High Court in Chand Begum v. Hyderbaig.
The courts have inclined towards a liberal interpretation of the expression “neglects or
refuse to maintain”. No straight jacket formula can be established to determine whether the wife or
any other claimant could successfully prove that the person neglected or refused to maintain
him/her. In Sahu v. Khagyodhar Sahu, the court averred that it shall depend upon the facts and
circumstances of each case.

3. A person claiming Maintenance must be unable to maintain itself:

The provisions under Sections 125 to 128 are civil in nature. They have been incorporated
in criminal law with the sole intention to provide speedy and inexpensive justice that will prevent
vagrancy and augmented crime owing to such vagrancy. Now, a wife who has been gifted a huge
amount of wealth by her father along with a residential apartment, cannot claim that she has a right
to maintenance because her husband refused to maintain her.
Like any other provision under the Criminal Procedure Code, this provision also needs to be
used wisely and to bring the other party to justice and not to cause gains or profits to the suffering
party. Thus, the applicant’s inability to maintain himself/herself is the sine qua non for the grant of
maintenance under §125.
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 Now, unable to maintain herself in §125 (1) (a) does not mean that the wife should be
“absolute destitute and should be on the street, should beg and be in tattered clothes”[ Abdul Salim
V. Najima Begum 1980 Col. 3 232 (All).]. The expression connotes that the person has no other
sufficient means to maintain himself/herself than the person against whom the maintenance is
claimed. The inability to maintain oneself has nothing to do with the earning capacity of the
claimant.

The logic applied in the case of able-bodied person does not apply to wives or children when
they claim maintenance. Unless the claimant has an actual source of income and such income is
sufficient to meet the basic necessities, a legal right to claim maintenance remains existent and
enforceable.

There are no specific criteria to determine the inability of the claimant under this provision.
In Shanyani Haidar v. Bharati Haidar, the court asserted that “the statement of the wife that she
has been able to survive with great difficulty is sufficient compliance of Section 125 CrPC” .
In Rewati Bai v. Jageshwar, ordering allowance of Rs. 350/- per month to the wife, the
M.P. High Court observed that the fact that she was compelled to work as a labourer to survive was
by itself not sufficient to establish that the applicant was able to maintain herself.
To claim maintenance under this provision, the applicant must categorically aver in the
application that s/he is unable to maintain her/himself. However, failure to add in the petition about
the inability of the claimant does not become the sole reason for vitiating the trial.

In Mohinder Singh v. Joginder Kaur, the wife filed an application for maintenance under
§125 but did not mention about her inability to maintain herself in the petition. At the time of taking
evidence, however, it was brought out that in the wife was unable to maintain herself and so the
magistrate granted her claims which were also upheld by the Hon’ble High Court.

4. Special Conditions when Maintenance is claimed by wife:

Under Section 125 (4), two exceptions to the grant of maintenance have been provided
specifically when the applicant is the wife. According to this section, the husband will be exempted
from maintenance if the wife has maintained “outright adulterous conduct and she is in a quasi-
permanent union with the man with whom she is committing adultery”[ Kasthuri v. Ramaswamy,
1979 Cri. L.J 741 (Mad).].
Also, if the wife refuses to live with the husband under the same roof without any reasonable
ground, she cannot be said to possess the right to maintenance. In Saygo Bai v. Chueeru Bajrangi,
the court said that if the husband has contracted a second marriage or keeps a mistress, it shall be
considered to be a just ground for the refusal of the wife to stay with him. The court held that no
wife with any self-esteem will ever bear the pain of keeping with the mistress of her husband.

Alteration in Allowance Ordered by the Magistrate

After the Magistrate is satisfied that the above-mentioned conditions have been duly
fulfilled, he shall order the person to pay a monthly allowance to the claimant and if necessary,
interim maintenance during the pendency of the matter. This amount of maintenance payable to the
claimant can be altered under two circumstances:

1. On proof of a change in circumstances of the parties or any of the parties, the

Magistrate can alter the order of maintenance or interim maintenance as the case may be.

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 2. Under Section 127 (1), if the Magistrate believes that a valid case before a competent
civil court is pending and the judgment in such court might vary the amount of maintenance, then
the Magistrate may alter the allowance.
Besides these, no application can be filed for an increase in the allowance for the reason that
they already allow maintenance is not sufficient to meet her needs.

Jurisdiction And Enforcement Of The Order Of The Magistrates Under Section 125, Cr.P.C,
1973.

Section 125 to 128 of Criminal Procedure Code, 1973 deal with the grant of maintenance by
a person who neglects to maintain his wife, parents or children. It is a common legal axiom that
says “ubi jus ibi remedium”, i.e. where is right there is the remedy.
On one hand Section 125 vests the right of maintenance upon such neglected persons
whereas sections 126 to 128 provide for the jurisdiction, order and enforcement of such order of the
Magistrates.

Jurisdiction of Magistrates
According to the Code, only “Judicial Magistrates of the First Class can deal with and
decide petitions for maintenance”[ §125, Cr.P.C, 1973.] under Chapter IX. It has been provided by
clause (g) of Section 461 that “if any Magistrate, not being empowered by law in this behalf, makes
an order of maintenance, his proceedings and such order shall be void”[ §461 (1) (g), Cr.P.C,
1973.].
Under Section 126, proceedings for maintenance “may be taken against any person in any
district:
 Where he is or
 Where he or his wife/parents/children reside or
 Where he last resided with his wife or as the case may be with the mother of his
illegitimate child”.
However, the jurisdiction of the Magistrates under this provision is ousted by Section 7 (2)
(a) of the Family Courts Act, 1984. According to this section, “wherever family courts have been
established the jurisdiction to grant maintenance shall be exercised by family courts alone”. The
court in Chimata Nagarathnamma v. Chimata Naganail observed that “the alternative forums have
purposefully given by Parliament so as to a discarded wife or helpless child to get the much-needed
and urgent relief in one or the other of the three forums that are convenient to them”.
Now, since the provision is quite elaborate, the issue that often arises is that whether a
woman deserted by her husband and does not have a permanent place, will have to initiate a
proceeding before a court where she last resided with the husband. Thus, when it comes to the
interpretation of Section 126, the apex court held in Jagir Kaur v. Jaswant Singh that “the words in
Section 126(1) should be liberally construed without doing any violence to the language” .

Sections 125 to 128 of the code is in the nature of remedial legislation and therefore, for the
convenience of the persons claiming remedy under this provision, “the venue of the proceeding is
made wide enough to include any place where she may be residing on the date of the application for
maintenance”. However, the jurisdiction of the courts in this section has been restricted several
times by the High Courts.
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 Besides the residential place of the person against whom the claim is made, the courts have
held that the district and residence of the petitioner are also relevant. According to the courts, both
the parties should be within the jurisdiction of the court[Shakuntala v. Thirumalayya, (1996) 2 MLJ
326 and Abdul Qayyum v. Durdana Begum, (1974) Cri. L.J 873 (AP).].

Besides the wife, the parents of the person can also claim maintenance under this provision
“where they reside or where their children reside”[ N.B. Bhikshu v. State of A.P., 1993 Cri. L.J
3280 (AP).]. Etymologically, the word “reside” would mean to have a permanent place of
residence; where a person enjoys food, shelter and clothing. In Jagir Kaur, the court observed that
“the expression ‘resides’ means something more than a flying visit and does not include a casual
stay in a particular place”. To determine the meaning of ‘reside’ what is necessary “is the intention
to stay for a period, the length of the period depending on the circumstances of the case”[
Balakrishna Naidu v. Sakuntala Bai, (1943) 44 Cri. L.J 741.].

Order of Maintenance
Section 125 (1) of the Cr.P.C empowers the courts to order maintenance to helpless related-
persons to prevent criminal conduct compelled by destitution and starvation. To comprehend the
nature and circumstance in which such an order can be passed, it is essential to reproduce the
section.

Section 125: Order for maintenance of wives, children and parents.

(1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain
itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or injury unable to
maintain itself, or

(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class
may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the
maintenance of his wife or such child, father or mother, at such monthly rate in the whole, as such
Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time
direct: Provided that the Magistrate may order the father of a minor female child referred to in
clause (b) to make such allowance until she attains her majority if the Magistrate is satisfied that the
husband of such minor female child if married, is not possessed of sufficient means.

Explanation. – For the purposes of this Chapter,-

(a) ” Minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9
of 1875); is deemed not to have attained his majority;

(b) ” Wife” includes a woman who has been divorced by, or has obtained a divorce from,
her husband and has not remarried.
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 After complete perusal of the jurisdiction and evidence brought on record by both the
parties, if the court is satisfied that the essential conditions under Section 125 for the grant of
maintenance have been satisfied, “the court may order the person proceeded against to make a
monthly allowance for the maintenance of the applicant”.
The “upper limit of the amount of maintenance, i.e. ₹500/- has been now removed by
Parliament” and the discretion is bestowed upon the deciding court to determine an appropriate
amount to be paid as a whole and the duration in which it has to be paid.

The proviso to §125(1) also empowers the court to “order a father of a legitimate or
illegitimate child minor female child to make such allowance as necessary until she attains
majority”. However, the code uses the word “may” under the provision which implies discretion
and direction. Thus, discretion is conferred upon the courts to “justify the requirement of the
situation considering the equity of each case separately”.
With respect to the circumstances that should be observed by courts while passing the order
of maintenance, the apex court observed that “object of these provisions being to prevent vagrancy
and destitution, the Magistrate has to find out what is required by the wife to maintain a standard of
living which is neither luxurious nor penurious but is consistent with the status of the family”[
Bhagwan Dutt v. Kamla Devi, AIR 1975 SC 83.].
In Sudeep Chaudhary v. Radha Chaudhary, the apex court held that the expression “in
the whole” means that the maintenance allowable to the claimant should not exceed amount ordered
under Section 125 of the Code. Thus, if a claimant has obtained maintenance under the Hindu
Marriage Act or any other personal law, such amount will be deducted with the maintenance
ordered under Section 125.
Besides, the order of maintenance, the court is also empowered to grant any interim
maintenance as a relief to the claimant. Now, let us assume, a situation where the wife was
subjected to cruelty for 6 years and after such brutality, she accumulated all the energy and decided
to move to her brother’s house and file a petition for divorce and maintenance.

Now, it is not possible for the woman to undertake the expense of fees of her two children
and the cost of living in a new city and she cannot wait for the order of the court. The issue arose
before the Supreme Court in Savitri v. Govind Singh Rawat wherein the court allowed such
interim orders holding that the magistrate has implied powers under §125 to do so.

Enforcement of Order of Maintenance

What is the use of an order if the person against whom it is passed does conform to it?
Therefore, to avoid any injustice to the already suffering victim, the law always provides for an
enforcement mechanism. The relevant procedure for enforcement of an order is provided under
§125 (3) read with §128 of the Code.

If any person against whom an order of maintenance is passed fails to furnish the amount
with registry of the court within the stipulated period, the claimant can make an application before
the court of Judicial Magistrate of the First Class to enforce the order of maintenance and order the
person to adhere to the previous order and make the due payment.

The essential ingredients under this provision are:

 The application can be made in any court of Judicial Magistrate with the certified copy
of the order of maintenance irrespective of the jurisdiction of the court[§128, Cr.P.C, 1973.].

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  The application must be made within 1 year of the date of default of payment.
 The person who fails to make payment of maintenance must not have sufficient
reasonable grounds for doing so.
 The court, if satisfied that the non-compliance of the order was without sufficient
reason, will issue a warrant of arrest against such person.
 The defaulting person can be sent to imprisonment for 1 year or until he makes the
payment whichever is earlier.
 The defaulting cannot put any unreasonable condition for payment of such money. For
instance, if the person asks his wife to stay with him and she has reasonable cause to deny, he
cannot evade payment saying the condition was not fulfilled.
In Ram Bilas v. Bhagwati Devi, the court laid down the rule that for recovery of one year’s
maintenance, the person is sentenced to one month’s imprisonment; for one month’s accrued
maintenance, the imprisonment shall be of one week. The rule does not bind other courts as it was
merely an obiter but, however, the spirit was to set a fixed system for non-payment of maintenance
amount.
Section 128 acquires importance for enforcement of an order of maintenance because this
provision requires the court to provide the claimant with a certified copy of the order of
maintenance to the actual claimant or his/her guardian or any other authorized person to whom the
maintenance is payable. The copy of the order must be provided free of cost and without any delay.

13: MISCELLANEOUS (CERTAIN MOST IMPORTANT TOPICS IN PRACTICE)

Analysis of the Principle of ‘Double Jeopardy’ In India

The principle, precisely, means that a person who has been tried and convicted of a criminal
offence once cannot be tried or convicted for the same offence again. The principle of double
jeopardy is not a new concept. It existed under the Government of India Act, 1935 and was duly
accepted as a fundamental right as well as a legal right.

The etymology of Double Jeopardy

The term ‘jeopardy’ is defined as “hazard, danger or peril”. With respect to criminal law,
jeopardy means “the risk of conviction and punishment”. The expression is defined in Black’s Law
Dictionary as “a second prosecution after the first trial for the same offence”. The principle derives
its origin from the English common law principle of ‘nemo debet vexari’ meaning a man may not
be put twice in peril for the same offence. The principle has also been accepted as a part of the
5th Amendment right under the United States Constitution.
In Mohinder Pratap Singh v. Director, Health Services, the court held that ‘no person
shall be prosecuted or punished for the same offence more than once’. This was a significant case
where the right against double jeopardy was upheld as a basic human right.

Double Jeopardy under the Constitution

Article 20 (2) states that no person shall be prosecuted and punished for the same offence
more than once. This provision forms part of Part III of the Constitution which means that it is a
fundamental right and it is the duty of the State to ensure that no action is taken that violates this

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 right. This right was incorporated form the inspiration gained from the English common law
principle of nemo debet vexari and 5th Amendment of the U.S. Constitution.
However, the right under the Indian Constitution is narrower than that bestowed by the other
English or the U.S. laws. Under the English and American laws, a person cannot be tried for an
offence and convicted if he has earlier been tried of the same offence. Under Article 20(2), the
person should not only be tried but also convicted of the offence in the previous occasion to claim
the right in any subsequent trial for the same offence.
The essential features of right against double jeopardy under Article 20(2) are:

1. The right applies only when a person tried for an offence for which a conviction order
has already been passed by a trial court. In Venkataraman v. Union of India, the accused was first
subjected to a departmental enquiry and suspended from work, and subsequently tried for a criminal
charge. The court held that the previous sanction does not amount to trial or conviction but a mere
departmental proceeding.
2. The conviction must be after a complete and fair trial. Any appeal or review or
revision against the conviction does not amount to subsequent trial.
3. The Article does not apply to the continuing offence. In Kolla Veera Rao v. Gorantla
Venkateshwara Rao, the accused was charged with the offences of ‘voluntarily causing hurt’ and
‘wrongful confinement’. He first tried to destroy evidence in the first case and was caught and tried
for it. Later, he tried to destroy the evidence in the second case as well and was again tried for it.
Thus, the question was whether the second trial is for the same offence, i.e. destruction of evidence.
The court held that the offence was a continuing one and hence, does not constitute two trials.
4. The conviction must be for the same offence. If the offences are distinct, this provision
is inapplicable. In Leo Roy v. Supt. District Jail, the accused was convicted under the Sea
Customs Act for evading custom duty and later convicted for criminal conspiracy under IPC. The
court held that the offences are distinct.

Double Jeopardy under Cr.P.C

Section 300 of the Code of Criminal Procedure, 1973 abounds with two essential legal
principles called ‘autrefois convict’ and ‘autrefois acquit’. It means that the provision puts a bar on
the trial of a charge against a person who has already been charged for the same offence and either
has been convicted or acquitted. The provision has been divided into six clauses and each of them is
discussed in detail herein under:
Clause 1, of §300
This clause implies that a person should not be tried for the same offence twice if he has
already been tried for that offence. The essentials to apply in this section are:

 The person must be either convicted or acquitted of the offence,

 The offence must be tried by a court of competent jurisdiction,
 The two offences should be the same or at least identical. In ICAI v. Vimal Surana,
the accused was convicted for offences under Sections 24 & 26 of the Chartered Accountants Act
and was subsequently, tried for the similar offences under IPC (Sections 419 & 420). The
conviction was held to be a bar on the second trial.
 If more than one offence can be made out from given facts of the case; conviction for
one offence shall act as a bar on the trial for other offences resulting from the same facts.
Clause 2, of §300

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 The clause provides that where a person is convicted or acquitted of an offence and a
distinct charge could be made out against such person but was actually not made in the previous
trial, he cannot be prosecuted for the same. The intention of this clause is to prevent abuse of
criminal administration to continue prosecuting a person by building up charges against him.

For instance, imagine five friends plan to rob a rich merchant and execute their plan. While
committing robbery, the merchant sees them and they hit him making him unconscious. They
abduct him into their vehicle and throw into a waterfall and kill him.
Here, the five friends can be charged with ‘formation of unlawful assembly, dacoity,
murder, abduction, abduction in order to murder and dacoity with murder (§§ 149, 393, 302, 364 &
396)’. Thus, if the prosecution was to misuse criminal administration, the five friends will be tried
for each offence separately and each trial will take around 4 to 5 years.

To avoid the above situation the code provides Section 300 (2). Moreover, if at all, the
prosecution has reasonable grounds to initiate a subsequent trial against the same person for a
charge which was earlier omitted, it has been made obligatory for the prosecution to acquire a
consent from the State Government to do so.
Clause 3, §300
This clause lays down a situation where the accused can be retried for an offence which
arises from the same facts of the case but is distinct in nature. According to this clause, a person
convicted of any offence constituted by any act causing consequences which, together with such
act, constituted a different offence from that of which he was convicted, maybe afterwards tried for
such last-mentioned offence, if the consequences had not happened, or were not known to the Court
to have happened, at the time when he was convicted.

For e.g. A ravished B in a moving bus and threw her out of the bus. Later, A is caught, tried
and convicted for rape under IPC. However, if B dies in the hospital during treatment, A can be
retried for murder since this a new consequence arising from the same act which was not brought to
light on the prior occasion. This clause is applicable only on convictions and no acquittals.

Clause 4,of §300

This clause is a continuation of the previous clause and lays down another exception where
double jeopardy rule does not apply. According to this provision, if a person is convicted or
acquitted or any offence, notwithstanding such conviction or acquittal, if the offence has given rise
to subsequent consequences (like the above example) and if the court convicting or acquitting the
accused was incompetent to try him for the subsequent offence, there is no bar on the second trial.
Thus, the only requirement for this section is that the court trying the accused must be incompetent
and without jurisdiction to try the subsequent case.

Clause 5, of §300
The clause extends the right against double jeopardy in certain cases where the accused is
discharged though not acquitted. Section 258 of the code provides that a court shall be empowered
to discharge the accused in a summons case and let him free even before the principal witnesses are
examined.
This is called discharge and happens when the court hears the prosecution and believes that
no grounds exist to try the accused for the offence because the prosecution’s evidence is not
sufficient to prove anything and it will be a waste of time to continue the trial. Power to discharge

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 can be exercised when the case instituted is a summons case, warrant case or even a sessions case.
However, Section 300(5) applies only when the accused is discharged in a summons case.

The clause provides that any person accused of an offence in a summons case and discharge
after trial, cannot be prosecuted for the same offence again except without the consent of the
concerned court. The provision was inscribed in the code to ensure safeguard against unnecessary
misuse of power to prosecute.

Clause 6, of §300
This is a savings clause which ensures that certain provisions of the same Act or any other
Act will not be affected by this section. This section saves Section 26 of the General Clauses Act,
1897 and Section 188 of the Cr.P.C

Section 26, General Clauses Act, 1897

The section provides that where an act constitutes offences under different laws and are
punishable with different laws, the person accused of such act shall be tried and convicted under
either of the laws but shall not be liable for prosecution twice. Thus, the case of ICAI v. Vimal
Surana is ideal for this clause.

Section 188, Cr.P.C

According to this section, if an offence has been committed by a person outside India either
in some other country or in a vessel or aircraft registered in India and India has exclusive
jurisdiction to try that person, any prosecution or conviction or acquittal by a foreign court shall not
bar the prosecution in Indian courts and it shall not amount to double jeopardy. In Monica Bedi v.
State of Andhra Pradesh, the accused had obtained a passport with a false name and was already
tried for the offence in Lisbon. However, the court held that she can be tried in India as well and the
right against double jeopardy shall not be applicable.

Right Of An Accused Person To Defend Himself Under Cr.P.C, 1973

The principle of audi alteram partum requires that no one shall be condemned unheard. This
is a principle of natural justice which connotes that everyone has the right to be heard. There cannot
be a just decision without hearing the stories of both sides. To uplift this principle, Section 303 of
the Code of Criminal Procedure, 1973 vests upon a person accused of any offence, the right to be
defended by “a pleader of his choice”.

Scope and Application of § 303

The section recognizes the right of any person brought before a criminal court to answer any
charge or accusation to be defended by a lawyer that he pleases. A person is said to be accused only
if a process has been issued against the person or if any proceeding has been instituted.

In Kuthu Goala v. State of Assam, the court observed that when an accused is taken under
remand by the police under Section 167 of the Cr.P.C, this amounts to a proceeding and the right,
hence, begins from this moment onwards. It was further held that recording of confession before the
Magistrate is also a proceeding, and it is the duty of the Magistrate to inform the accused of his
right to consult a pleader.

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 The right to consult and be defended by a legal practitioner is now recognized as a
Fundamental Right under Article 22(1) of the Constitution. In Hansraj v. State, the court observed
that arrest and trial in a jail in hot haste on the next day without any opportunity to defend himself
or informing the accused of Fundamental Right under Article 22(1) is the denial of that right.
Further, this section has to be read with Section 273, Cr.P.C. the provision requires that a
trial must be conducted in front of the accused and his pleader. This ensures that the accused can
hear the evidence to be used against him and reply appropriately when given the opportunity to
explain.

Section 303 further contemplates that an accused in custody must have a reasonable
opportunity to interact and communicate with his pleader for any legal advice as to his defence. The
courts have observed that the right to have an advocate or to be represented by an advocate begins
from the time of the arrest itself.
The communication between the accused and his pleader may take place either in the
presence of the police officer or in confidentiality. In general, a criminal case; either trial or appeal
or revision, should not be decided in the absence of the accused or his pleader or any person
specifically authorized by him to represent him. In Md. Sukur Ali v. State of Assam, the apex
court observed that a criminal case decided in the absence of the accused violates Article 21 of the
accused person.

Truth in Sentencing the Accused

Truth in sentencing is an apparently simple concept, with considerable rhetorical power, if
only because it would be hard to support its opposite: dishonesty in sentencing. On closer
examination, however, the concept is more ambiguous than it might seem at first glance. Truth in
sentencing originally referred to the difference between the sentence imposed by a court and the
time actually served by the offender.

Proponents of truth in sentencing, therefore, tended to attack early release of sentenced

prisoners. Truth in sentencing in its original sense is often seen as a policy concern that is typical of
common law jurisdictions. Certainly, it has achieved much prominence and arguably had its greatest
impact on penal policy in the United States of America, Australia, the United Kingdom and
elsewhere in English-speaking world.

The right to defend has played a limited role, in the case of life sentences, for example,
where the courts or even the legislature have sometimes been criticized for setting minima that are
too low to reflect the severity of a sentence of life imprisonment.

Mandatory Requirements to be an Eligible Pleader

Order III Rule 4 of the Code of Civil Procedure, 1908 requires that every person who desires
to be represented by an attorney or pleader must have an instrument in writing that approves that the
person is entitled to represent the person who desires to be represented by the person by is going to
represent the person. This document is commonly ushered as the Vakalatnama whereby the person
who hires the attorney empowers him to take actions or do any act legally allowed on his behalf.

The pleader who is so hired and willing to represent the party to be represented must file
before the appropriate court a memorandum of appearance which is a document where the attorney
who represents the person who wants to be represented claims before the court that he has been

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 appointed by the person as his pleader and that he has the power of attorney to take any action and
appear on his behalf.

With respect to representations of accused or other persons by requisite pleaders specifically

before the subordinate courts, the Hon’ble High Court has issued the following guidelines:

 The Vakalatnama, through which a pleader is empowered to represent his client, must
contain the name of the client in full and the name of the lawyer who shall represent. If there is
more than one person to be represented, the Vakalatnama must contain the names of all such
persons.
 Proof required when power of attorney not executed by the principal—When such
appointment or power is not executed by the principal himself, but by some person claiming to
appoint or give authority on his behalf, the pleader will not be recognized by the Court without
proof that such person was duly authorized by the principal to execute such appointment or power.
 Power of attorney or memorandum of appearance in cross-appeals—In cross-appeals a
leader who has already filed a power of attorney or memorandum-of-appearance for the appellant
shall not be required to file another power-of-attorney or memorandum-of-appearance for his client
as a respondent in the cross-appeal.
 Date of engagement—the power of attorney or memorandum of appearance shall be
filed in Court by the Pleader shortly after his engagement, indicating the date of his engagement.

Pleaders for indigent accused

When the law is made the lawmakers do not deliberate on whom rights should be vested and
whom it should not. The right to be defended by a pleader of one’s choice is enjoyed not only by
those who can afford a lawyer for legal assistance but also those indigent accused persons who
cannot afford a lawyer. To ensure that no one is condemned unheard, the legislators enacted section
304 right after Section 303 of Indian Penal Code.

Section 304, bestows a duty upon the state to provide legal aid in the form of lawyers to
those persons who are facing criminal trial and are not able to afford an attorney to represent their
stake in the court. This section bestows upon a right to the accused persons without sufficient means
to be defended fulfilling the principle of natural justice “Audi Alterum Partum.

The defence taken by the help of the pleader is at the expense of the state. The rules
regarding the fees of such attorney are made by the High Court of the respective state with the
previous approval of the state.
Then the question arises is when is this right to legal aid of the accused begins from.

This right is available to the accused as soon as he is arrested for a cognizable offence by the
police. However, this pleader shall only be at the liberty to represent the accused at the time of court
proceeding. It is not available during the time of interrogation by the police.

In Md. Ajmal Kasab case, the accused demanded a pleader from his home country,
however when the accused realized that no legal aid was forthcoming then he demanded a pleader
from India and that was immediately provided for, and this was held to be not in violation of any
constitutional rights.
This provision also derives Its importance from the rights envisages in the constitution of
India, under Article 21 read with Article 39A, it imposes a duty upon the state to provide for legal
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 aid to the accused. This right of the accused of free legal aid is reasonable, just and also implicit
under Article 21 of the Constitution as also iterated in Khatri v. State of Bihar.
This right extends during all times, whether when the accused is produced before the
magistrate, or remanded back or during the filing or arguing appeals or Special leave petition before
the Apex court. And it is a duty and the obligation of the magistrate to inform the accused of his
right to engage a legal aid at the expense of the state government in cases of poverty or indigence.

Examination Of Accused By The Magistrate Under Section 313

the Examination Of Accused By The Magistrate Under Section 313 Of The Cr.P.C, 1973.
Criminal Law is based on the presumption of innocence of the denounced person. Therefore, it
contemplates every effort to be taken to allow the accused to explain his conduct and the
circumstances in which he committed the offence or in which he has been accused of committing
the offence. Thus, Section 313 of the Criminal Procedure Code mandates the court to examine the
accused.

The law orders each implicating proof ought to be put to the denounced independently.
Section 313 CrPC depends on the major rule of fairness.

Introduction
Accused is analysed in each enquiry or preliminary by empowering him to clarify by and by
to conditions showing up in proof against him. Section 313 of Criminal Procedure Code, 1973
(hereinafter, CrPC) conceives intensity of the preliminary court to look at the accused to clarify
proof showed against him.

We as a whole realize it is principal rule of equity nobody ought to be accused unheard. to

meet the necessity of the standards of normal equity as it necessitates that an accused might be
given a chance to outfit clarification of the implicating material which had come against him in the
preliminary. Be that as it may, his assertions can’t be made a reason for his conviction.

The Purpose of Section 313

The section itself announces the purpose of this provision in express language that it is “for
the motivation behind empowering the accused person by and by to clarify any conditions showing
up in the proof against him.”
The object of section 313 of Criminal Procedure Code, is to given occasion to feel qualms
about an obligation the courts to scrutinize the accused appropriately and decently so that it is
acquired home to the accused clear words the accurate case that the charged need to meet and
consequently an open door is given to the accused to clarify any such point. The assessment of the
accused person isn’t planned to be an inert custom it must be completed in light of a legitimate
concern for equity and reasonable play to the accused person.

The reason for section 313 of CrPC is set out in its opening words “for the motivation
behind empowering the charged person to clarify any conditions showing up in the proof against
him”, with the goal that it is right of accused person to disclose to court what are the conditions of
the occasion showing up in proof against him.
On the off chance that lower court neglect to offer the chance to him, he is qualified to ask
the appellate court to put him in the equivalent position as he would have been in, had he been
inquired. It is genuinely accused of having the right to look after quiet, he isn’t constrained to talk
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 during the examination and ensuing thereon. Simultaneously it is an obligation of the court to offer
a chance to talk or clarify his body of evidence and against the proof set forth by indictment during
preliminary

It was observed by the Hon’ble apex court in Raj Kumar Singh v. State of Rajasthan that
in a criminal trial, the motivation behind analysing the accused individual under Section 313 CrPC.,
is to meet the prerequisite of the standards of common equity, for example, audi alterum partem.
This implies the charged might be approached to outfit a few clarifications as respects the
implicating conditions related to him, and the court must observe such clarification.
For a situation of incidental proof, the equivalent is basic to choose whether or not the chain
of conditions is complete. Regardless of how frail the proof of the indictment might be, it is the
obligation of the court to inspect the accused and to look for his clarification as respects the
implicating material that has surfaced against him. The conditions which are not put to the accused
in his assessment under Section 313 CrPC., can’t be utilized against him and must be rejected from
thought.

Procedure for Examination of Accused

According to section 313 of CrPC., an accused person is analysed at any phase for seeking
additional evidence, will after the culmination of proof of arraignment. To know the technique of
assessment of a charged person, it is appropriate to peruse Section 313 of CrPC.

On plain perusing of the aforesaid provision, the initial segment offers attentiveness to court
to question the accused person at any phase for enquiry without past notice whereas the subsequent
part is compulsory. The utilization of “may” in provision (a) shows that attentiveness is vested in
the Court. Be that as it may, clause (b) utilizes “will”, and makes the scrutinizing obligatory.

When an accused person is being examined as over, no oath or pledge is to be directed to

him. Besides, he does not render himself subject by declining to address such questions or by
furnishing bogus responses to such arrangements.

The appropriate responses which are given by the accused person in such assessment might
be taken into thought and put in proof, possibly in support of him in that or some other request or
preliminary for any other offence which such answers may will, in general, show that he has
submitted.

While scrutinising the accused the trial court needs to think about that the inquiries ought to
be founded on the proof cited by arraignment. The inquiries ought to be planned in a clear,
legitimate and justifiable manner leaving no vagueness in addressing the charged person. While
looking at the alleged offender, courts need to mull over the financial and scholarly capability of
charged and his ability to comprehend addresses presented to him.
The court needs to take intense consideration while looking at natural and ignorant persons.
The accused in the event that he is anything but a shrewd individual with a sharp memory may not
by any means recall every one of the conditions put to him while giving his clarification. This may
affinely prompt miscarriage of equity.

In the event that dubious inquiries are put to the accused, he might not have the chance to
clarify quickly and effectively. Proof of each witness and implicating proof found thereon ought to
be asked exclusively yet not in a conventional manner scrutinizing all the accused at once.
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 Addressing of all charged at once about implicating proof discovered structure arraignment
isn’t legitimate, as job and interest, each alleged offender may diverse as indicated by the realities
and conditions of each case. So, it is constantly alluring to get some information about implicating
proof found against him for a situation.

Evidentiary Value of Statements made under Section 313

As the accused is not examined on vow in 313 assessment to clarify his form or his case
against the proof cited by indictment, the statements made by him can’t be taken as a proof against
him. Indeed, even it is right of the charged person to keep quiet or to give any unauthentic
articulation which doesn’t tie him or the court is not permitted to indict him on such explanations
given by him in the assessment.

The purpose, procedure and consequences of 313 examinations were best explained by the
Hon’ble Supreme Court in Sanatan Naskar v. State of West Bengal. The court held that “The
answers by an accused under Section 313 of the CrPC are of relevance for finding out the truth and
examining the veracity of the case of the prosecution. The scope of Section 313 of the CrPC is wide
and is not a mere formality”.
In Mohan Singh v. Prem Singh, the court raised the question that when such an
examination is recorded, what degree and results such explanation can be utilized during the
enquiry and the trial. Over the time frame, the Courts have clarified this idea and now it has
attained, more or less, assurance in the field of the criminal statute.
The assertions of the accused can be utilized to test the veracity of the exculpatory of the
confirmation, assuming any, made by the accused. It very well may be mulled over in any enquiry
or preliminary yet at the same time, it does not carefully confirm the situation.

The provisions of Section 313 (4) of CrPC expressly gives that the appropriate responses
given by the charged person might be mulled over in such enquiry or preliminary and put in proof
possibly in support of the accused in some other enquiry into or trial for some other offence for
which such answers may will in general show he has submitted.

As it were, the utilization is passable according to the arrangements of the Code yet has its
very own restrictions. The Courts may depend on a part of the assertions of the accused person and
see him as liable regarding the other proof against him drove by the arraignment, be that as it may,
such explanations made under this Section ought not to be considered in detachment yet related to
proof illustrated by the indictment.

Another significant alert that Courts have proclaimed in the proclamations is that conviction
of the denounced can’t be founded simply on the assertions made under Section 313 of the CrPC as
it can’t be viewed as a substantive bit of proof.

Effect of Non-Compliance of Section 313

Non-examination of accused under Section 313 of CrPC doesn’t nullify the whole
procedures or instance of the arraignment. The person charged of offence can make use for the
equivalent even at the re-appraising stage. It is not the sole base for ousting except if the accused
person indicated premature delivery for equity.

The court in State (Delhi Adm.) v. Dharampal, stated that in this way it is to be seen that
were an oversight, to carry the consideration of the accused to an inculpatory material has happened
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 that doesn’t ipso facto vitiate the trial. The accused must show that irreparable loss had incurred or
great travesty of justice was occasioned by such oversight.
Further, in case of an inculpatory material not having been put to the accused, the re-
appraising Court can generally make great that slip by calling upon the insight for the charged to
show what clarification the denounced has as respects the conditions built up against the charged
however not put to him.

Moreover, in Gyan Chand v. State of Haryana, the plea of non-compliance of the

arrangements of Section 313, CrPC was taken for the first time before the apex court. Be that as it
may, there was no material appearing concerning what bias has been caused to the denounced
person if realities of cognizant belonging were not put to them.
In this manner, the court held that the trial was not frustrated for the rebelliousness of the
provision. Mere faulty/inappropriate assessment under Section 313 is no ground for putting aside
the conviction of the accused person, except if it has brought about partiality to the denounced.
Except if the assessment is done in an unreasonable manner, there can’t be any bias to the
denounced.

Examination of Accused as a Defense Witness: Purpose and Procedure

Introduction
the Purpose and Procedure of Examination of Accused as a Defense Witness. According to
Section 118 of the Indian Evidence Act, 1872 any person who is not disabled from understanding
the questions put to him due to his extreme elderly age or tender years or childhood can be a
competent witness in a court of law.

This provision entails that any person irrespective of his nature and role in the trial can be a
witness. Now, criminal law constitutes three types of witnesses; i.e. Prosecution Witness, Defense
Witness and Court Witness.

A person whom the prosecutor proposes to examine in the court for the purpose of giving
evidence supposedly in his favour is called the prosecution witness, except the complainant or
informant whose rank is of charge-sheet witness but he appears for the prosecutor.

On the contrary, the witnesses whom the accused proposes to examine in the court for
giving evidence on his behalf and in his favour are called Defense Witnesses. Besides these, under
Section 311, the court is empowered to call any person who is related to the case or acquainted with
the facts of the case as a witness to testify and answer the questions that the court puts to him. Such
person(s) is called Court Witness.

Accused as a Competent Witness

As already stated under section 118, every person is a competent witness if s/he can
understand the questions put to her/him and the answers that s/he gives to the court and the
consequences of such answers. Therefore, an accused is a competent witness according to the
Evidence Act.

This is also contemplated under Section 315 of the Code of Criminal Procedure, 1973
(hereinafter ‘CrPC’). This provision avers that a person who is accused of an offence can be a
competent witness for the defence and maybe examined in a court of law under oath.
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Scope of Section 315
The provision gives that a blamed individual can be a lawful and proficient witness for the
defence and like some other observer he is qualified for giving proof on vow in disproof of the body
of evidence brought against him by the arraignment.

Where the accused person deliberately offers himself to be inspected as a Defense witness,
the indictment is qualified to look at him and the proof so acquired might be utilized against other
persons who have accused and/or tried with him, i.e. the accomplices.

In any case, the section bars or disables the Court from drawing any unpropitious derivation
from the non-assessment of the accused person as a Defense witness. The superior courts have
decreed in various cases that if a denounced person alongside others, willfully steps in the dock or
the witness box as a competent witness, he is liable to interrogation by the prosecuting counsel and
the proof brought out in such questioning can be utilized against his co-accused.

On the off chance that such an observer implicates his co-accused who are together tried
with him, they reserve a privilege to interrogate him, on the off chance that they so want.

In Gajendra Singh v. State of Rajasthan, the accused, in the wake of getting his averments
recorded under Section 313, got himself examined by the Magistrate and subsequently during the
trial as a Defense witness under Section 315 of the Code.
His solicitation to create get certain documents marked by the court and brought on record
was turned down by the trial court which was later reversed by the apex court. The Supreme Court
observed that under Section 315, the accused is not only entitled to be examined as a witness but
has all rights to produce any document as he deems necessary to substantiate his claims as to any
other witnesses.

Procedure to Examine the Accused as Witness

The provision lays down certain specific procedure that needs to conformed to allow the
examination of an accused as a witness in the court. The procedure can be explained in the form of
enlisted pointers for brevity:

1. The Person must be Accused: It means that mere lodging of FIR or complaint does
not amount to accusation against the person. The police must have conducted an investigation and
on the basis of the investigation, there must be some reason to suspect his involvement in the
offence committed. The person must be specifically named as an accused in the Final Report, i.e.
the charge-sheet submitted by the investigating authority after the investigation is completed. Only
when the person is named as an accused, s/he can be examined as a witness for defence under
Section 315.
2. The Accused must be tried before a Criminal Court: this entails that the trial must
be conducted before a criminal court. The provision does not mention specifically which courts but
uses the general phrase ‘criminal court’. It means the section is valid when the trial is before the
Magistrate’s court or Sessions court or even any CBI court or special court established for a
particular prosecution. Thus, the vital requirement is that the trial must be for a criminal offence.
3. The Accused must be a Competent Witness: It connotes that the accused must be
able to comprehend the questions which are put to him in the court by the counsels or the judge.
The person must be able to understand the question, the nature of the question, the purpose behind
asking such question and must be proficient to answer the question with utmost ease and in his
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 favour or at least not in his adversity. If the accused is a minor or a lunatic or a person otherwise of
an unsound mind, the court must satisfy itself that s/he is able to understand the questions and
answers.
4. The Accused can Appear only for Defense: Under Section 315, the accused can be
examined only as a Defense Witness. It means if the Defense does not want to examine the accused,
the prosecution cannot ask any question to the accused and the case of the prosecution has to
depend on its own witness and other defence witnesses. The purpose of the section is to give one
last opportunity to the accused to explain himself or to bring any evidence he thinks is vital to
defend him. Therefore, the prosecution cannot use this provision to cross-examine the accused
unless he has been examined as a defense witness.
5. The Accused must give Written Consent to be Examined: The law requires that the
accused must make a written request to the court to allow him to be examined as a witness for the
defense. If the accused is examined as Defense Witness, it gives the prosecution all rights to cross-
examine the accused on whatever he has stated in the court. The presumption of criminal law is
always in favour of the innocence and therefore, subjecting the accused to cross-examination may
be adverse for the accused’s case. Therefore, written permission of the court is necessary to
examine the accused.
6. The Accused need not take Oath: The section contemplates that the accused “may”
be examined on oath. The word ‘may’ gives discretion to the defence to decide whether he wants to
examine the accused on oath or not. In general, practice, when the accused is examined to produce
any document before the court, he need not be examined on oath because the contents of the
document cannot be proved by his oral testimony even if given under oath.

Merits and Demerits of Examining the Accused

In general practice, an accused person is never examined in the court as a Defense witness.
All he wants to say is averred during the 313 examinations by the Magistrate, save if there is urgent
need or necessity to examine him in the court. Unless grave prejudice will be caused to the accused
or when there is no chance of accused being acquitted and the accused wants to try his last resort of
requesting the court himself, an accused is never examined in the court.

Examining the accused in court would subject him to rigorous cross-examination of the
prosecution who sits like a predator waiting for this opportunity to grab its prey when it is at its
weakest.

The prosecutor can have hundreds of questions for the accused; not only with respect to his
involvement in the offence but also about the involvement of the co-accused as well. Any statement
that the accused makes in his capacity as a charged person, can be used against his accomplices to
entrap them and convict them.
Moreover, when the accused is examined in the court as a witness on oath, if he makes false
assertions, this will subject him to penalty or prosecution for perjury and if he is not examined on
oath, it affects the reliability of the averments made by him.

Further, the law does not allow the court to presume anything unfavourable nor does it allow
the prosecutor to comment on the fact that the accused has not been examined as a witness by the
defence. Therefore, the provision is very rarely used in practice but is of significant value when
used.

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 Compounding Of Offences Under The Code Of Criminal Procedure, 1973

This segment, with petty amendments in two Tables of offences under the IPC in Clauses
(1) and (2) thereof as likewise accommodating the impact of the death of the individual able to
compound. It further gives bar against composition against a denounced having a past conviction.

The provision is the resurrection of Section 345 of the Code of Criminal Procedure 1898.
Aside from the over the meaning of “offence” in Section 2(n) of the Code, 1973 and the
arrangements of Section 4 and 5 of the Code, 1973 which separately are equivalent to the Provision
of Section 4(1) (O), Section 5 and Section 1(2) of the Code, 1898 must be considered to
comprehend the law as to intensifying of offences completely.

Introduction
Criminal law has multi-faceted objectives. It is not an objective if criminal law to avenge the
victim or punish the offender. Criminal law aims at bringing the offender to justice by allowing him
an opportunity to explain his deeds and understand whether the person understands his actions or
not.

The final purpose of criminal law is that justice is done by either providing appropriate
punishment to the offender or acquitting the accused person and ensuring that the offender is
effectively rehabilitated.
Now, since the criminal does not aim at punishing the offender or eliminating offenders
from the society, the Code of Criminal Procedure, 1973 has been imbibed with provisions for the
settlement of cases outside the court if the accused understands his/her acts and is willing to pay for
the damages caused by him. The act of settling a criminal prosecution outside the court with mutual
consent of the victim and the offender is called compounding of offences.

Not all offences are allowed to be settled outside the court. Section 320 of the CrPC which
allows compounding of offences under the IPC and other offences lays down a table specifically
mentioning the offences which can be settled outside the court and by whom. Offences which are
allowed to be settled outside the court are called compoundable offences and which are not allowed
to be resolved outside the court are called non-compoundable offences.

Objectives of Compounding of Offences

The provisions for compounding of offences came as a new provision after the Criminal
Procedure Code 1898 was devoured by the present Criminal Procedure Code. The main objectives
as laid down in the 41st law commission report which suggested the present CrPC are as follows:
 Amicable Settlement: Compounding of offences allows amicable settlement of
criminal cases which otherwise would involve leading voluminous evidence, oral and documentary,
and allegations will be hurled on each other. Composition of the issue assists is avoiding these
circumstances and dispose of the prosecution in a most ameliorating manner.
 Reducing Burden of Courts: Criminal courts are always overburdened with cases
because of the increasing number of crimes in the society. Every new case brought before the court
is a burden upon the court. If the case is settled between the parties outside the court, it helps to
reduce the burden of the courts as well.
 Mutual Respect and Reformation: Settlement of a criminal case shows the guilt and
remorse inside the accused person and the willingness to make good the harm done. Subjecting such
person to rigorous trial and keeping him/her in detention only deteriorates his mental capacity. It is
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 a known factor that no one criminal has come reformed from jail. Hence, the settlement allows the
person to accept his offence and lead a reformed life.
 Expeditious Resolution: A criminal trial, however minor, takes minimum 2 to 3 years
to complete and the sentence to be announced. Allowing the parties to settle the case within
themselves enable them to save time and money of the hefty prosecution.

Compoundable Offences
As aforementioned, offences which can be resolved outside the court are called
compoundable offences. In such offences, the injured person or victim or his/her family (as the case
may be) and the accused person enter into agreement oral or written whereby on performance of
certain act by the accused or fulfilling of certain conditions by the accused, the victim (prosecutor or
prosecutrix) agree to drop the charges against the accused and withdraw the prosecution.

The compounding must be bona fide not with any malice or hidden motive. Further,
offences compoundable at the option of the aggrieved party must be without any form of
consideration. If there is an agreement between the victim and the accused to drop charges, it is
invalid and the court may reject such settlement.
For instance, A wants to purchase a house of B which B does not want to sell. A initiates
prosecution against B in a cheating case that A acquired through his sources. A offers B to
withdraw charges if B sells the house to A. This is not a valid composition and hence, liable to be
rejected by the court.

There are two types of compoundable offences:

 Offences Compoundable with the Permission of the Court
In offences which are compoundable at the permission of the court, the parties have to
mutually file an application for compounding the offence outside the court mutually. The court
looks into the reason for compounding, the authenticity in compounding the offences and whether it
will do justice to the victim and reform the accused or not.

If the court is satisfied that the parties have a bona fide intention to resolve the case outside
the court, it grants the permission and fixes a date for intimation to the court the settlement finally
agreed. After this, the case is disposed of as settled.
The following table shows which offences are compoundable with the permission of the
court and at the option of which of the parties.

Person by whom offence may be

Offence Provision of IPC compounded

Assault or criminal force

in attempting wrongfully to confine The person assaulted or to whom the
a person 357 force was used

Assault or criminal force

to woman with intent to outrage The woman assaulted to whom the
her modesty 354 criminal force was used

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 Assisting in the
concealment or disposal of stolen
property, knowing it to be stolen,
where the value of the stolen
property does not exceed two
thousand rupees. 414 The owner of the property stolen.

Causing hurt by doing an

act so rashly and negligently as to
endanger human life or the
personal safety of others 337 The person to whom hurt is caused

Cheating a person whose

interest the offender was bound,
either by law or by legal contract,
to protect. 418 The person cheated.

Cheating. 417 The person cheated.

Criminal breach of trust,

where the value of the property The owner of the property in respect
does not exceed two thousand of which the breach of trust has been
rupees. 406 committed.

Defamation against the

President or the Vice-President or
the Governor of a State or the
Administrator of a Union Territory
or a Minister in respect of his
conduct in the discharge of his
public functions when instituted
upon a complaint made by the
public prosecutor. 500 The person defamed.

Dishonest The owner of the property

misappropriation of property 403 misappropriated

Dishonestly receiving
stolen property, knowing it to be
stolen when the value of the stolen
property does not exceed two
thousand rupees. 411 The owner of the property stolen.

House trespass to commit

an offence (other than theft) The person in possession of the house
punishable with imprisonment. 451 trespassed upon.

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 Marrying again during the The husband or wife of the person so
lifetime of a husband or wife. 494 marrying.

Mischief by killing or
maiming animal of the value of ten
rupees or upwards. 428 The owner of the animal.

Theft by clerk or servant

of property in possession of master
where the value of the property
stolen does not exceed two
thousand rupees 381 The owner of the property stolen

Theft, where the value of

property stolen, does not exceed
two thousand rupees 379 The owner of the property stolen

Using a false trade or The person to whom loss or injury is

property mark. 482 caused by such use.

Uttering words or sounds

or making gestures or exhibiting
any object intending to insult the
modesty of a woman or intruding The woman whom it was intended to
upon the privacy of a woman. 509 insult or whose privacy was intruded upon.

Voluntarily causing
grievous hurt 325 The person to whom hurt is caused

Voluntarily causing
grievous hurt on grave and sudden
provocation 335 The person to whom hurt is caused

Wrongfully confining a
person for three days or more 343 The person confined

 Offences Compoundable without the permission of the court

Besides the above-listed offences, there are petty offences which do not have any effect on
the society and even if there is some malicious intention to settle between the accused and the
victim, it can be let go considering the non-heinous trait of the offence. In these cases, the parties
agree upon a settlement and inform the court that they have settled the case and the prosecutor
withdraws the prosecution.

The following table shows which offences which do not require the permission of the court
to be compounded:

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 Provision of Person by whom offence may be
Offence I.P.C. compounded

Uttering words, etc. with

deliberate intent to wound the religious The person whose religious
feelings of the person 298 feelings are intended to be wounded

323, The person to whom the hurt is

Causing hurt 334 caused

Wrongfully restraining 341,

confining any person 342 The person restrained or confined

Assault or use of criminal 352, The person assaulted or to whom

force 355, 358 criminal force is used

The person in possession of the

criminal trespass 447 property trespassed upon

The person in possession of the

House-trespass 448 property trespassed upon

Criminal breach of contract of The person with whom the

service 491 offender has contracted

Adultery 497 The husband of the woman

Enticing or taking away or

detaining with the criminal intent of a
married woman 498 The husband of the woman

Defamation, except such cases

as are specified against Section 500 of
the I.P.C., 1860 in column 1 of the
Table under sub-section (2) 500 The person defamed

Printing or engraving matter,

knowing it to be defamatory 501 The person defamed

Insult intended to provoke a

breach of the peace 504 The person insulted

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 Criminal intimidation except
when the offence is punishable with
imprisonment for seven years 506 The person intimidated

The act caused by making a

person believe that he will be an object The person against whom the
of divine displeasure 508 offence was committed

A Study Of The Law of Limitation under Cr.P.C to File a Case

Introduction
Limitation, etymologically, refers to a restriction or a restraint from doing anything. In its
ordinary legal and popular sense, limitation connotes to the time within which an action may be
brought or a case may be filed before a court to preserve a right. Aiyar’s Lexicon defines ‘limitation
period’ as “a statutory period after which a lawsuit or a prosecution cannot be brought in a court”.
It is common legal prudence that a case cannot be filed or heard after a certain period of
time. The law is based on the maxim in Roman law that states ‘Vigilantibus Et Non Dormientibus
Jura Subveniunt’, i.e. law comes to the assistance of those who are vigilant with their rights and not
those who sleep on their rights. Thus, after the statutory period of limitation has expired, the court is
not legally bound to hear or try the case. Law of limitation has several exceptions but in a nutshell,
it is relevant to know that limitation period are not absolute and can be condoned at the discretion of
the court.

Limitation to Prosecute under Cr.P.C

Sections 467 to 473 of the Code of Criminal Procedure, 1973 deal with the law related to
the limitation to initiate a prosecution. These provisions explain, in detail, the duration of limitation,
when it starts, when it ends and what happens if the case is not filed within the limitation period.

 Period of Limitation and bar to prosecute

Section 467 defines the expression ‘period of limitation’ as the period specified in section
468 for taking cognizance of an offence. The definition uses the term “means” which implies that
the definition is exhaustive and the period of limitation shall include only those periods mentioned
in Section 468 irrespective of the period mentioned in the Limitation Act, 1963.
Section 468 (2) divides the offences under the penal laws into three groups and prescribes
limitation for each group. Firstly, offences which are punishable only with fine will have a period
of limitation amounting to six months. Secondly, if the offence is punishable with imprisonment
for a term not exceeding one year the period of limitation shall be one year. Lastly, if the offence is
one punishable with an imprisonment of more than one year but not exceeding three years, the
period of limitation shall be three years.
Thus, no court shall take cognizance of an offence of the three categories specified above
after the expiry of the period of limitation. The code does not talk about the offences which are
punishable with imprisonment for a term exceeding three years. It is implied and followed that
offences punishable with imprisonment for a term exceeding three years are not barred by limitation
and can be filed whenever possible provided the court is satisfied with the reasons provided for
delay in filing the case.
Moreover, Section 468 (3) also provides that if there are several offences which can be tried
together in one trial, the period of limitation shall be that of the offence which is punishable with the
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 more severe punishment or, as the case may be, the most severe punishment. For instance, A joins a
group of terrorists who were planning to bomb the Taj Mahal and initiates executing their plans
with them.
He is caught by the police during one of his visits and charged with ‘being a member of an
unlawful assembly’ punishable with six months’ imprisonment, ‘joining an unlawful assembly
armed with deadly weapon’ punishable with two years’ imprisonment and ‘rioting armed with
deadly weapon’ punishable with 3 years’ imprisonment. Thus, since the maximum punishment is
for ‘rioting armed with a deadly weapon’ which is punishable with 3 years’ imprisonment, this shall
be considered to calculate the period of limitation.

 Commencement of the Period of Limitation

The period of limitation, in any normal circumstances, shall always commence on the date
on which the offence was committed. Even if the case is reported later, the period of limitation for
the purpose of commencement of trial shall be computed from the date of the commission of an
offence and not on the date when it was reported before the police.

However, the code makes provision for circumstances where the date of offence is not
known to the victim or the police officer. According to Section 469 (1) (b), where the commission
of the offence was not known to the person aggrieved by the offence or to any police officer, the
first day on which such offence comes to the knowledge of such person or to any police officer,
whichever is earlier shall be the commencement date for computation of period of limitation.
Moreover, when the identity of the offender is not known to the victim or the police, the
period of limitation shall commence when the identity of such a person is known. This ensures that
the time spent on an investigation by the police does not deprive the victim of his/her
rights. Section 469 (2) also states that the day when the commission of an offence is known or when
the identity of the accused is known, as the case may be, shall be excluded while computing the
limitation period.
 Essential Considerations
While computing the period of limitation, the courts should take into consideration several
points such as:

1. If a person has already initiated a prosecution against the accused in the same factual
matter but the court is not of competent jurisdiction and the case is dismissed, the court that has
competent jurisdiction to try the accused should exclude the time spent by the prosecutor while
diligently prosecuting the accused in the wrong court. This provision should also apply to any
appeal or revision initiated before a court without jurisdiction.
2. If a person is prevented from prosecuting the accused owing to an order of injunction
by a competent court, the period during which the injunction is in force, the day on which the order
was issued and the day when the injunction is withdrawn should be excluded while computation.
3. If an offence requires issuance of notice to the other party (e.g. Dishonourment of
cheque) or a prior sanction or consent of the Government (e.g. offences against public servants), the
time required to serve the notice and receive the reply and the time required to obtain the consent or
sanction from the Government should be excluded while computing the period of limitation.
4. If the accused or offender has been absconding from police or has left India in order to
abscond and evade justice, the period during which he has been outside India or been absconding
should be excluded during the computation.

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 5. Where the period of limitation expires on a day when the Court is closed, the Court
may take cognizance on the day on which the Court reopens.
6. If an offence is a continuing offence, a fresh period of limitation shall begin to run at
every moment of the time during which the offence continues. For instance, A kidnapped B and hid
him in a warehouse in the factory where he works. After a few days, when he did not receive the
ransom, he transferred the kid to another place and again waited for ransom. This is, therefore, a
continuing offence and thus, the limitation period shall start every time a step is taken towards the
commission of an offence.

Condonation of Delay
In Singbel GPU Construction Co-Operative Society Ltd. v. CCE, Chief Justice Vijai Bist
of the Sikkim High Court observed that “We are conscious and aware that the law of limitation is
sufficiently elastic to allow and enable the concerned Authorities to apply it for substantial justice”.
Considering this, the law of limitation is always relaxed according to the procedure established by
law and the guidelines given by courts.
Section 473 of the Code allows any court to take cognizance of any offence beyond the
period of limitation if it is satisfied that the reasons for such delay has sufficiently been explained
and it is necessary to allow the application to condone the delay in the interest of justice. In
the Singbel case, the court dismissed the application of the appellant to condone the delay stating
that the reasons for the delay were not sufficiently explained.
The court observed that “merely because a non-pedantic approach should be adopted to an
application for condonation of delay it is not essential that every delay including those in which the
drafting has been done in a haphazard manner and with nary a care to detail or explanation
pertaining to the delay with dates thereof be condoned”.

The landmark case for condonation of delay is Esha Bhattacharjee v, Raghunathpur

Nafar Academy. The court specifically provided that any application for condonation of delay
must be drafted with care and circumspection and not in haste or in a haphazard manner harbouring
the notion that the courts are required to condone delay on the bedrock of the principle that
adjudication of a lis on merits is seminal to justice dispensation system. The misuse of the term
justice must not be tolerated while dealing with such applications.

Difference between Illegal and Irregular Procedure

Meaning of Procedure under the Law

A Critical Analysis of the Difference between Illegal and Irregular Procedure has not been
defined in any of the procedural laws or the General Clauses Act, 1897. Hence, it is essential to take
assistance from external aids such as law lexicons.

According to Black’s Law Dictionary, the procedure is ‘commonly composed of the sum of
legal principles constituting the substance of the law, and denotes the body of rules, whether of
practice or of pleading, whereby rights are effectuated through the successful application of the
proper remedies’. Further, the procedure has been defined as a ‘mode or form of conducting judicial
or other proceedings’ in Aiyar’s law dictionary.

Meaning of ‘Illegality’ and ‘Irregularity’

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 The word ‘illegality’ signifies that activity which is contrary to the established principles of
law and denotes a complete defect in the proceedings. According to S.R. Das, illegal refers to that
quality of the act which makes it contrary to the law. In People v. Kelly, the New York appellate
court observed that illegality connotes something which is ‘immoral or wicked or which implies a
breach of the law’.
On the other hand, an ‘irregularity’ is a want or lack of adherence to some prescribed rule or
mode of proceeding and includes omitting to do something that is necessary for the due and orderly
conducting of the suit or doing it in an unreasonable time or improper manner. Thus, irregular
means a departure from the prescribed course of doing an act and does not include an act contrary to
the procedure.

The distinction between Procedural Illegality and Irregularity

The Supreme Court, in National Fertilizers Ltd. v. Somvir Singh pointed out that the
distinction between illegality and irregularity is explicit. While dealing with the procedure of
appointment to one of the departments of the appellant company, the apex court held that the
appointment was made at a time when recruitment was banned by the government vide notification
dated 31.03.1998. Further, the recruitment rules were not followed and the selection committee had
not been properly constituted. In these circumstances, the court held that this is not mere irregularity
but a violation of the provisions of law.
In B.N. Nagarajan v. State of Karnataka, the apex court observed that irregularities mean
acts comprising such defects which are attributable to methodology followed during recruitment
while illegality includes violation of law in toto.
In State of U.P. v. Desh Raj, the distinction was made crystal clear. The Supreme Court
here averred that “an appointment which was made throwing all constitutional obligations and
statutory rules to winds would render the same illegal whereas irregularity presupposes substantial
compliance of the rules”. It means that when the term irregular is used, it is presumed that a part of
the procedure to be followed has not been followed while substantial other parts which were
required to be followed were followed.
For instance, under Section 164 of the Code of Criminal Procedure, the procedure for
recording of confession of accused and statements of witnesses by the Magistrate is provided.
According to this provision, a confession can be recorded only by a Judicial Magistrate, in the
absence of the police officer; it may be video-graphed and a memorandum has to be affixed at the
foot of the statement by the Magistrate.
The provision also requires that the confession must be voluntary and this should be
mentioned in the memorandum. Now, if the confession is recorded by a police officer or the
Magistrate forgets to prepare a memorandum, this is procedural irregularity as one of the several
procedures was not followed. However, if the confession is not voluntary and still recorded by
coercion, this is procedural illegality because involuntary confession is a violation of the entire
procedure and not merely a part of it.

Points of difference between Irregularity and Illegality

1. Meaning: Procedural Illegality relates to the violation of law caused by an act without
reference to the legal power of the person. On the contrary, procedural irregularity relates to legal
competence and the extent of power that can be exercised to do an act. If the power exercised is less
or more, it is irregular.
2. Application: Procedural illegality applies to an act forbidden or prohibited by the law.
On the other hand, irregularity applies to an act which, even though not prohibited by law, but not
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 permitted by any statutory provision. It applies to acts which are not done completely done even
though the law mandates it to be done.
3. Effect: An illegal act or procedure is wholly unwarranted by law. The effect of such
acts is that they are void ab initio and cannot be made enforceable in any court of law. Contrary to
this, procedural irregularity may not be illegal in the sense that no wrong is committed and an act of
irregularity may not necessarily be void. It is usually voidable at the option of the court or as the
statute prescribes.
For instance, in National Fertilizer Company’s case, the respondent’s argument that the
appointment made without a proper selection committee was a procedural irregularity and hence,
the appointment was not void, was rejected by the court which stated that since the act was done
against the notification of the Ministry, it was illegal and hence, void.
4. Ability to Rectify: An illegal act cannot be made legal under any circumstances.
Nevertheless, an irregular act can be cured of such irregularity by the court or higher authority if the
statute provides power to such authority.
For instance, as stated above Section 164 provides the procedure to be followed by
Magistrates during recording confessional statements. A counterpart provision exists in Section
463 of the Code which empowers the court to condone any irregularity in Section 164 procedure if
the court is of the opinion that it will not do any injustice to the accused and the accused have been
given sufficient opportunity to defend himself.
5. Principles of Natural Justice: In Kesava Rao v. Subba Raju, the Andhra Pradesh
High Court observed that an order is illegal if it is opposed to any enactment or any rule having the
force of law. It is irregular if the procedure followed is in violation of the principles of natural
justice (right to be heard and rule against bias) and fair play. In K. Kraipak v. Union of
India, where a candidate for selection to Forest services was himself a member of the selection
committee, the apex court held that procedure followed was contrary to rule against bias (principle
of natural justice) and hence, illegal.
Now, in one case, the court has held a violation of principles of natural justice as procedural
irregularity while in other, it is illegality. This conflict was addressed by the Andhra Pradesh High
Court in the 1977 case of Govt. of India v. National Tobacco Co.. The court held that if during
any procedure or in the middle of any proceeding, ‘any principle of natural justice has been violated
and if it has resulted in the substantial failure of justice, it would be an act of illegality’.

Procedural Irregularity under the Cr.P.C.

Chapter 35 of the Code deals with irregular and illegal proceedings and the effects of such
acts. The chapter does not specifically use the term illegal proceeding but divides irregular
proceedings into two parts; first, irregularities which do not vitiate the proceedings (procedural
irregularities) and second, irregularities which vitiate the proceedings (procedural illegalities).
Section 460 of the Code provides that if a Magistrate who is not empowered to perform any
of the enlisted acts in the provision, does such act in good faith, the proceeding shall not be set aside
for such irregularities. On the other hand, Section 461 provides the exact opposite of Section 460.
According to this provision, if any Magistrate, not being empowered by law to do the acts specified
in the provision, does any of the following things, the proceeding shall be void.

Sections 462 to 464 are critical examples of procedural irregularities. Section 462 provides
that if the order or sentence is passed by a court which did not have jurisdiction to try the case, such
order or sentence shall not be set aside only on the grounds that the place of trial was incorrect
unless it is shown that such proceeding has actually resulted in the failure of justice.
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 Similarly, Section 463 protects the proceedings before a Judicial and Metropolitan
Magistrate which do not follow the prescribed procedure provided the accused is not affected by
such irregularity and that the accused received sufficient opportunity to defend himself.
Lastly, Section 464 avers that no sentence or any finding (observation) of any criminal court can be
set aside only because no charge was framed or incorrect charges were recorded against the accused
unless a failure of justice has occurred.
Conclusion
Thus, the common ground to declare any irregularity void is to prove the failure of justice
which can only be proved by exhibiting violation of any of the principles of natural justice.

When the procedure followed in any jurisprudence is vast and highly complex, it is
inevitable that procedural irregularities will occur. Therefore, the statutes and common law take this
into consideration and all irregularities are not prima facie considered void. If that had been the
case, almost every case would have to be tried again for lack of adherence to some procedure or the
other.

The Probation of Offenders Act, 1958

The Probation of Offenders Act, 1958 contains elaborate provisions relating to probation of
offenders, which are made applicable throughout the country. The Act provides four different modes
of dealing with youthful and other offenders in lieu of sentence, subject to certain conditions. These
include:—

(1) Release after admonition;

(2) Release on entering a bond on probation of good conduct with or without supervision, and on
payment by the offender the compensation and costs to the victim if so ordered, the courts being
empowered to vary the conditions of the bond and to sentence and impose a fine if he failed to
observe the conditions of the bond;

(3) Persons under twenty-one years of age are not to be sentenced to imprisonment unless the court
calls for a report from the probation officer or records reasons to the contrary in writing; and

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(4) The person released on probation does not suffer a disqualification attached to a conviction under
any other law.

It must be stated that the provisions of the Probation of Offenders Act are not confined to juveniles
alone, but extend to adults also. Again, provisions of the Act are not only confined to offenses
committed under the Indian Penal Code but they extend to offenses under other special laws such as
the Prevention of Corruption Act, 1947; the Prevention of Food Adulteration Act, 1954; the Customs
Act, 1962; the Prevention of Black Marketing & Maintenance of Supplies of Essential Commodities
Act, 1980; the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974,
Narcotic Drugs & Psychotropic Substances Act, 1985 etc.

In recent times, the emphasis is on the reformation and rehabilitation of the offender as a self-
sufficient and useful member of the society, without subjecting him to the deleterious effects of jail
life.

This relates to the measure of probation, which may be used by the courts as an alternative and is
increasingly being used.

INTRODUCTION

An accused person should be given a chance of reformation which he would lose in case he is
incarcerated in prison and associates with hardened criminals.

The object of Criminal Law is more to reform the offender than to punish him. Instead of keeping an
accused with hardened criminals in a prison, Court can order personal freedom on the promise of
good behavior, and can also order a period of supervision over an offender. This is what we generally
call as ‘Probation’. Simply, it can be understood as ‘ the conditional release of an offender on the
promise of good behavior’.

MEANING OF PROBATION

“Probo” is a Latin word, the meaning of which is “I prove my worth” i.e. to see whether he can live
in a free society without breaking the law. “Probatio” means “test on approval”. Webster dictionary
meaning of Probation is the act of proving, proof, any proceeding designed to ascertain character.
Thus probation means a period of proving or trial. The offender has to prove that he is worthy of
probation.

Probation is a socialized penal device, an extramural alternative of institutionalization and has come
about as the result of modification over a period of time of doctrine of deterrence into the principle of
reformation, a development that paved the way to the introduction of clinical approach and the
principle of individualization in the handling of offenders.

Probation means discharging a person subject to commitment by the suspension of sentence, during
the regularity of conduct, and imposing conditions and on default thereof arresting and committing
him until imprisonment is served or the judgment is satisfied [i] It is a substitute for imprisonment, a
conditional suspension of sentence.[ii]

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The term “Probation” is derived from the Latin word “probare”, which means to test or to prove. It is
a treatment device, developed as a non-custodial alternative which is used by the magistracy where
guilt is established but it is considered that imposing of a prison sentence would do no good.
Imprisonment decreases his capacity to readjust to the normal society after the release and association
with professional delinquents often have undesired effects.

According to the United Nations, Department of Social Affairs, The release of the offenders on
probation is a treatment device prescribed by the court for the persons convicted of offences against
the law, during which the probationer lives in the community and regulates his own life under
conditions imposed by the court or other constituted authority, and is subject to the supervision by a
probation officer.

The suspension of sentence under probation serves the dual purpose of deterrence and reformation. It
provides necessary help and guidance to the probationer in his rehabilitation and at the same time the
threat of being subjected to unexhausted sentence acts as a sufficient deterrent to keep him away from
criminality

Probation seeks to accomplish the rehabilitation of persons convicted of the crime by returning them
to society during a period of supervision rather than by sending them into the unnatural and all too
often especially unhealthful atmosphere of prisons and reformatories (Attorney General’s Survey of
Release Procedure, Vol II, 1939 Page 1).

Probation system is based on reformative theory. It is a scientific approach. It is a rational approach

towards the causation of crime of young offenders and thus they can be saved from becoming
habitual offenders by dumping them into jails. The probation officer insists on the problem or need of
the offender and tries to solve his problem and see that the offender becomes a useful citizen of the
society.

OBJECT OF PROBATION

i) The object of probation is to bring lawbreakers and anti-social persons into willing cooperation
with the community of which he is a member, thus giving him security which he needs and social
protection against his attacks on person or property.

ii) The function of probation is to effect improvement in the character of the offender and permanent
rehabilitation and reformation of the offender.

iii) Probation involves molding of the individual’s habits in a more constructive way.

iv) It’s a substitute for imprisonment. Punishment will not serve the purpose in all cases of offenders.

v) The object is that an accused person who is convicted of a crime should be given a chance of
reformation which he would lose by being incarcerated by prison.

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Analysis of Section 4 of Probation Of Offenders Act 1958

Release on Probation

Section 4 of the act deals with the power of the court to release certain offenders on probation of
good conduct. [iii]

As per Section 4, if any person is found guilty of having committed an offense not punishable with
death or imprisonment for life and the court by which the person is found guilty is of opinion that,
having regard to the circumstances of the case including the nature of the offence and the character of
the offender, it is expedient to release him on probation of good conduct, then, notwithstanding
anything contained in any other law for the time being in force, the court may, instead of sentencing
him at once to any punishment, direct that he be released on his entering into a bond, with or without
sureties, to appear and receive sentence when called upon during such period, not exceeding three
years, as the court may direct and in the meantime to keep the peace and be of good behavior.

The section further requires that the offender or his surety has a fixed place of residence or regular
occupation in a place where the court exercises jurisdiction. Also, before making any such order, the
court shall take into consideration the report, if any, of the probation officer, concerned in relation to
the case. However, it is not necessary that the court has to act on the probation officers report. It can
also gather information from other source and on its own analysis.

The court may also require the offender to remain under the supervision of a probation officer during
a certain period if it thinks that it is in the interests of the offender and of the public. It can also
impose appropriate conditions which might be required for such supervision. In case the court does
specify such conditional release, it must require the offender has to enter into a bond, with or without
sureties, enumerating the conditions. The conditions may relate to the place of residence, abstention
from intoxicants, or any other matter as the court thinks appropriate to ensure that the crime is not
repeated.

The non-obstante clause in Section 4 of the Act is a clear manifestation of the intention of the
legislatures that the provisions of the Act would have effected notwithstanding any other law for the
time being in force. [iv]

It is a general section under which the benefit is extended to the offenders under 21 years of age and
also offenders who are above 21 years of age. Discretion is exercised by the court while giving the
benefit of probation to the offenders above 21 years of age. No reasons are to be recorded when the
benefit of probation is granted to the offenders above 21 years of age.

Section 4 laid down that the court shall consider the report of the P.O if any. It is not obligatory on
the court to call for and consider the report of the P.O. in terms of Section 4(2).

An order of release on probation came into existence only after the accused is found guilty and is
convicted of the offense. Thus the conviction of the accused or the finding of the court that he is
guilty cannot be washed out at all because that is the sine quo non for the order of release on
probation of the offender. The order of release on probation of the offender is merely in substitution
of the sentence to be imposed by the court. This has been made permissible by the c statute with a
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humanist point of view in order to reform youthful offenders ad to prevent them from becoming
hardened criminals.[v]

Meaning of the “character” of the accused

The word character is not defined in the Act. Hence it must be given the ordinary meaning. [vi]The
provision of Section 4 vests in the court a discretion to release a person found guilty of having
committed an offense not punishable with death or imprisonment for life.

It is really for the court, by which the person is found guilty, to determine, having regard to the
circumstances of the case including the nature of the offense and the character of the offender,
whether or not it will be expedient to release him on probation of good conduct. It is only when the
court forms an opinion that in a given case the offender should be released on probation of good
conduct that the court acts as provided in Section 4[vii].

Power is discretionary:

While granting the benefit under the Act the court shall take into consideration the nature of the
offense. If the offense is not trivial in nature, the court should not be lenient in granting such a
benefit. [viii] Power to release on probation is discretionary and has to be exercised in appropriate
cases. [ix]

Conditions:

Conditions to be satisfied for application of Section 4:

(1) the offense committed must not be one punishable with death or imprisonment for life.

(2) the court must opine that it is expedient to release him on probation of good conduct instead of
sentencing him to any punishment and

(3) the offender or surety must have a fixed place of abode it regular occupation in a place situated
within the jurisdiction of the court.

Relevant factors to be taken into consideration. The convicts have no indefeasible right to be
released. The right is only to be considered for release on license in terms of the Act and the rules.
The Probation Board and the State Government are required to take into consideration the relevant
factors before deciding or declining to release a convict.

Scope

The provision of Section 4 vests in the court a discretion to release a person found guilty of having
committed an offense not punishable with death or imprisonment for life. It is really for the court, by
which the person is found guilty, to determine to have regard to the circumstances of the case
including the nature of the offense and the character of the offender, whether or not it will be
expedient to release him on probation of good conduct. It is only when the court forms an opinion

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that in a given case the offender should be released on probation of good conduct the court acts as
provided in Section 4. [x]

A wide discretionary jurisdiction has been conferred on the courts to release the convicts not involved
in very heinous offenses, on probation instead of incarcerating them to prison. The main object of
awarding punishment is the prevention of crime and reformation of the offender

The policy of the law is that where an offense is an overly heinous one grant of probation is ruled out
as a matter of law. The heinousness of the offense and its deleterious effect on the body politic, is in
the eye of the law, “if not fundamental, a very relevant factor for the grant or refusal of probation.”

In Dasappa v. State of Mysore, [xi] it is laid down as follows :

“It is only when the court forms an opinion that the offender in a given case should be released on
probation of good conduct that it has to act as provided by Section 4 of the Act. It was for the
accused to have placed all the necessary material before the court which could have enabled it to
consider that the first accused was an offender to whom the benefit of Section 4 would be extended “.

FOR WHAT OFFENCES, SECTION 4 CANNOT BE APPLIED?

It was settled law that nobody can claim benefit under PO Act as a matter of right. This was clearly
held in AIR 2001 SC 2058. It was observed in State Of Sikkim vs Dorjee Sherpa And
Ors, [xii]that decisions reported in AIR 1983 SC 654 : 1983 Cri LJ 1043 (Masarullah v. 1State of
Tamilnadu) and 1981 (Supp) SCC 17 (Aitah Chander v. State of A.P.) have also been referred to
contend that the Court should not take technical views in such cases and should take into
consideration some other aspects such as possibility of losing the job, for invoking the provisions of
Probation of Offenders Act even in serious offenses.

It has further been contended that the Court should also take into consideration that the convicts
belonging to middle-class families without any criminal antecedent often become the victim of
circumstances because of an undesirable company and other evil influences available to such young
generation. Provisions of Probation of Offenders Act,1958 normally cannot be applied to the
following offenses:

1. ACB cases (AIR 1983 SCC 359),

2. Section 304 part-II of IPC [8],
3. NDPS Cases ( (2002) 9 SCC 620),
4. Section 304-A (AIR2000 SC 1677),
5. Section 325 IPC[9],
6. Sections 409, 467, 471 IPC (AIR 2001 SC 2058;),
7. Kidnap and, abduction (AIR 1979 SC 1948), and
8. Habitual offenders, (Kamroonissa v. State of Maharashtra, AIR 1974 SC 2117), etc.

Analogous Law:

Section 4 is similar to subsections (1) and (7) of Section 360 of the Code of Criminal Procedure,
1973 which are stated as follows:
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(1) When any person not under twenty-one years of age is convicted of an offence punishable fine, or
with imprisonment for a term of seven years or less, or when any person under twenty-one years of
age or any woman is convicted of an offence not Punishable with death or imprisonment for life, and
no previous conviction is proved against the offender, if it, appears to the court before which he is
convicted, regard being had to the age, character or antecedents of the offender, and to the
circumstances in which the offence was committed, that it is expedient that the offender should be
released on probation of good conduct, the court may, instead of sentencing, him at once to any
Punishment, direct that he be released on his entering into a bond, with or without sureties to appear
and receive sentence when called upon during such period (not exceeding three years) as the Court
may direct and in the meantime to keep the peace find be of’ good behaviour :

Provided that where the first offender is convicted by a Magistrate of the second class not specially
empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this
section should be exercised, he shall record his opinion to that effect. and submit the proceedings to a
Magistrate of the first class forwarding the accuses to or taking, bail for his appearance before, such
Magistrate, who shall dispose of the case in the manner provided by sub-section (2).

The court, before directing the release of an offender under sub-section (1) shall be satisfied that an
offender or his surety (if any) has a fixed place of abode or regular occupation in the place for which
the court acts or in which the offender is likely to live during the period named for the observance of
the conditions.

CASE LAWS

LANDMARK CASES

I. Uttam Singh vs The State (Delhi Administration) 21 March, 1974[xiii]

The appellant was convicted under s. 292 I.P.C. and sentenced to rigorous imprisonment and fine for
selling a packet of playing cards portraying on the reverse luridly obscene naked pictures of men and
women in pornographic sexual postures. The conviction and sentence was affirmed by the High
Court.

It was contended that the sentence was very severe on the ground that only one single offense had
been established and secondly that he might be released Linder the Probation of Offenders Act, 1958.

Facts : The accused has a shop at Kishan Ganj, Delhi. It is no more in controversy that on 1st
February 1972, the accused sold a packet of playing cards portraying on the reverse luridly obscene
naked pictures of men and women in pornographic sexual postures to P.W. 1. This sale was arranged
by the police Sub-Inspector (P.W. 4) on receipt of secret information about the accused uttering these
obscene pictures.

On getting a signal from the purchaser a raid was made in the accused’s shop when two more packets
of such obscene cards were also recovered in addition to the packet already sold to P.W. 1. The ten-
rupee note, which was the price of the said set of playing cards and which had been earlier given-by
the Sub-Inspector to P.W. 1, was also recovered from the person of the accused.

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At the trial, the accused was convicted under Section 292, Indian Penal Code and sentenced to six
months’ rigorous imprisonment and to a fine of Rs. 500/-, in default further rigorous imprisonment
for three months. The High Court affirmed the conviction as well as the sentence.

The learned counsel for the appellant submitted that the sentence is very severe on the ground that
only one single sale has been established in this case and also only three packets of cards were
recovered from the accused. He further submitted that the accused is entitled to be released on
probation under Section 4 of the Probation of Offenders Act, 1958.

Held – The accused is married and is said to be 36 years of age. Having regard to the circumstances
of the case and the nature of the offense and the potential danger of the accused’s activity in this
nefarious trade affecting the morals of society particularly of the young, we are not prepared to
release him under section 4 of the Probation of Offenders Act. These offenses of corrupting the
internal fabric of the mind have got to be treated on the same footing as the cases of food adulterators
and we are not prepared to show any leniency. The appeal was, therefore, rejected.

II. Ishar Das vs State Of Punjab on 31 January [xiv]

The appellant, who was less than 20 years was convicted for an offense under s. 7(1) of the
Prevention of Food Adulteration Act, 1954, and was ordered to furnish a bond under s. 4 of the
Probation of Offenders Act, 1958. The High Court revised the sentence, because of Section 16 of the
Prevention of Food Adulteration Act Prescribed a minimum sentence of imprisonment for 6 months
and a fine of Rs. 1000.

It is Manifest from plain reading of sub-section (1) of section 4 of the Act that it makes no distinction
between persons of the age of more than 21 years and those of the age of less than 21 years. On the
contrary, the said subsection is applicable to persons of all ages subject to certain conditions which
have been specified therein. Once those conditions are fulfilled and the other formalities which are
mentioned in section 4 are complied with, power is given to the court to release the accused on
probation of good conduct.

The question which arises for determination is whether despite the fact that a minimum sentence of
imprisonment for a term of six months and a fine of rupees one thousand has been prescribed by the
legislature for a person found guilty of the offense under the Prevention of Food Adulteration Act, the
court can resort to the provisions of the Probation of Offenders Act.

In this respect sub-section (1) of Section 4 of the Probation of Offenders Act contains the words
“notwithstanding anything contained in any other law for the time being in force”. The above non-
obstante clause points to the conclusion that the provisions of Section 4 of the Probation of Offenders
Act would have an overriding effect and shall prevail if the other conditions prescribed are fulfilled.

Those conditions are:

(1) the accused is found guilty of having committed an offense not punishable with death or
imprisonment for life,

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(2) the court finding him guilty is of the opinion that having regard to the circumstances of the case,
including the nature of the offense and the character of the offender, it is expedient to release him on
probation of good conduct, and,

(3) the accused in such an event enters into a bond with or without sureties to appear and receive
sentence when called upon during such period not exceeding three years as the court may direct and,
in the meantime, to keep the peace and be of good behavior.

HELD: Section 4(1) of the Probation of Offenders Act contains the non-obstante clause
notwithstanding anything contained in any other law for the time being in force, and hence the
section would have overriding effect and shall prevail if its other conditions are fulfilled; especially
when the Probation of Offenders Act was enacted in 1958 subsequent to the enactment in 1954 of the
Prevention of Food Adulteration Act.

As the object of Probation of offenders act 1958 is to avoid imprisonment of the person covered by
the provisions of that act, the said object cannot be set at naught by imposing a sentence of the fine
which would necessarily entail imprisonment in case there is a default in the payment of fine.

The Supreme Court held that the Probation of Offenders Act was applicable to the offenses under the
Prevention of Food Adulteration Act, 1954.

III. Public Prosecutor v. N.S. Murthy[xv]

The accused was tried for committing murder of his wife but he was convicted under Section 323 of
IPC as the injury caused by him was simple in nature. He was released on Probation by the trial court
but the High Court sentenced him to sic months R.I. It was held that the conduct of the accused
immediately after the occurrence as well as the trial was one of the relevant and material factors to be
taken into account before exercising powers under Section 4(1) of the Probation of Offenders Act
1958. In regard to the conduct of accused the court made the following observation:

“In the present case, the accused did not admit his guilt at any stage. The conduct of the accused is
not that of a man of good character. Admittedly he ran away after the incident. He was kept in
custody of P.W 3 and was handed over to the police on the day following the date of offense at the
inquest. He never repented for what had happened to his wife either immediately after the occurrence
or at any time subsequent thereto. His statement under Section 342 CrPC makes it abundantly clear
that he is not entitled to have the benefit of Section 4(1) of the Act.

RECENT CASES

I. Sukhnandan v. State of M.P [xvi]

The High Court while dealing with a question as to whether the benefits of the provisions of the Act
may be granted to the accused, for outraging the modesty of woman it has been held after considering
the provisions of Section 4 as well as Section 12 of the Act , it would be just and proper that the
applicant, who is in service and his service record is found not to be good and also he is having five
children and is the sole bread earner, the sentence of fine even imposed on him may attach
disqualification, be given the benefit of the provisions of the Act

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Facts – On 31-10-1990 at 12 o’clock while Parbatia Bai (P.W. 1) was returning from the well,
accused met her and followed her. He asked where her husband has gone. Parbatia told that her
husband has gone for earning wages. He demanded liquor from Parbatia, but Parbatia refused. He
tried to drag Parbatia and took her near the Jack-Fruit Tree (Kathal Ped) and slapped Parbatia.

Parbatia cried, her bangles were broken and her Saree had torn, then the accused ran away from the
spot. Parbatia complained about the matter to Muniram, her husband. Both of them then went to the
police station on 2-11-1990 at 11:00 a.m. and lodged the F.I.R. Offence under Sections 354 and 323
was registered. She was sent for medical examination. Ex. P-5 is a medical report. The applicant was
arrested and the challan was filed.

The accused was serving as Peon in the Education Department. His service record is said to be good.
He is having five children, three daughters, and two sons, and the conviction awarded to him may
result in removal from service. Therefore, the benefits of the provisions of the Probation of Offenders
Act, 1958 may be granted to him.

Held : Having thus considered the provisions of Section 4 as well as Section 12 of the Probation of
Offenders Act, in the opinion of this Court, it would be just and proper that the applicant, who is in
service and his service record is found to be good and also he is having five children and is the sole
bread earner, the sentence of fine even imposed on him may attach disqualification, be given the
benefit of provisions of the Probation of Offenders Act. The State counsel was specifically asked,
who stated that he has no objection to this effect.

II. Ashok Kumar Dogra vs The State (N.C.T. Of Delhi) on 29 September 2008

Facts : On 26.6.1995, while driving a red line bus bearing registration No. DL- 1P-2315 at Peera
Garhi Chowk, Delhi, the petitioner hit a scooter bearing No. DL-1S-1132. The scooter rider, who was
injured succumbed to his injuries later on. PW-8, Ct. Randhir Kumar was an eye witness to the
accident.

Before the Metropolitan Magistrate, Ct. Randhir Kumar deposed that the accident was a result of rash
and negligent driving of the petitioner. Considering the entire evidence produced by the prosecution
the petitioner was convicted by the Metropolitan Magistrate. The appeal preferred by the petitioner
was also dismissed by the Sessions Court, holding that there is no infirmity in the order passed by the
Trial Court.

On 28th March 2008, counsel for the petitioner confined his plea in this matter to the reduction of
sentence and/or the benefit of Sections 3 and 4 of the Probation of Offenders Act, 1958.

The counsel for the petitioner contends that the petitioner has faced the rigors of trial for nearly
twelve years and has already served more than five months of his sentence. Furthermore, the
petitioner is the only earning member of the family and has to support his wife and four minor
children.

It is also contended that the petitioner has no history of ever being involved in any criminal
proceedings. Counsel of the petitioner submitted that keeping in mind these factors, either the

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sentence of the petitioner may be reduced or the petitioner may be released on probation of good
conduct as contemplated by Sections 3 and 4 of the Probation of Offenders Act, 1958.

Counsel for the State, on the other hand, opposed the contention of the petitioner and relies on the
decision of the Supreme Court in Dalbir Singh Vs. State of Haryana 2000 Cri.L.J. 2283. In that case,
whilst dealing with the question of benefit of probation being granted to offenders under Section 304-
A of the IPC, the Supreme Court categorically stated that the benefit of any such probation should not
be extended to persons convicted under Section 304-A for rash and negligent driving.

Held – While considering the quantum of sentence, to be imposed for the offense of causing death by
rash or negligent driving of automobiles, one of the prime considerations should be deterrence.

The punishment sentencing the petitioner to undergo rigorous imprisonment for three months under
Section 279 IPC, with a fine of Rs.500/-; and rigorous imprisonment for one year with fine of
Rs.5,000/- under Section 304-A IPC awarded by the Court of the Metropolitan Magistrate and
confirmed by the Court of Sessions was held to be quite reasonable. The revision petition was
accordingly dismissed.

III. Mukhtiar Singh vs State Of Punjab on 16 March 2010

The trial Court convicted the petitioner for the offense and sentenced him to undergo rigorous
imprisonment for a period of one year and to pay a fine of Rs.5000/- and in default of payment of
fine, he was ordered to further undergo rigorous imprisonment for three months. Aggrieved against
the same, petitioner had filed an appeal. The Appellate Court dismissed the same, upheld the
conviction and maintained the sentence.

Facts – On 9th November, 1995, ASI Jagsir Singh was present along with his companion officials at
Sirsa Kainchian in connection with patrol duty. At that time, secret information was received that the
present petitioner is engaged in the distilling of illicit liquor and is operating a working Still in the
fields of Jit Singh son of Harnam Singh at Ghaggar drain.

On the receipt of secret information, ruqa was sent to the Police Station for registration of the case
and a raiding party was constituted. When the raiding party reached the spot, it found the accused
feeding fire below the hearth. The working still was dismantled. The equipment and raw material was
cooled down and was taken into possession. A separate recovery memo was prepared, vide which the
equipment of the working Still and 175 kg of Lahan (raw material used for preparing the illicit liquor)
were taken into possession.

From the testimony of the witnesses, it has held that the petitioner was operating a working Still and
was engaged in distilling illicit liquor. It was submitted that the occurrence had taken place on 9th
November, 1995. A period of more than 14 years has elapsed and during this period, the petitioner
has not committed any other offense.

It was further submitted that at the time of occurrence, the petitioner was aged about 33 years. He has
a large family to support and is the sole breadwinner of his family. It has been submitted that
petitioner be granted an opportunity to reform himself and rehabilitate in the society.

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In Isher Dass v. State of Punjab, AIR 1972 SC 1295, Hon’ble Supreme Court held that subsection
(1) of Section 4 of the Probation of Offenders Act containing the non-obstante clause, would have an
over-riding effect and shall prevail if the other conditions prescribed were fulfilled.

The Full Bench held as follows:- “To conclude on the legal aspect, therefore, it must be held that the
mere prescription of the minimum sentence under Section 61 (1)(c) of the Punjab Excise Act, 1914 is
no bar to the applicability of Sections 360 and 361 of the Criminal Procedure Code, 1973 and the
same is not a special reason for denying the benefit of probation to a person convicted thereunder. In
the alternative, it is equally no bar to the applicability of Sections 4 and 6 of the Probation of
Offenders Act. The answer to the question posed at the outset is rendered in the negative.”

Taking into consideration that in the last 14 years, petitioner has committed no other offense, the age
and antecedents of the petitioner, the Court was of the view that ends of justice will be fully met in
case petitioner is released on probation under Probation of Offenders Act, 1958 for a period of one
year. He shall furnish personal/surety bonds to the satisfaction of the trial Court with an undertaking
that he shall maintain peace, good conduct, and behavior during the period of probation.

CONCLUSION

To conclude, it can be said that the measure of alternative punishment i.e., probation and the
objective of the theory of reformative punishment would be achieved only if the judiciary and the
administration work together. It would be of great benefit for a country like India, where the jails are
often overcrowded, with frequent human rights violations which would harden the human inside a
person.

Probation is an affirmation of the human inside every being and it must be given importance.

The reform and rehabilitation process have to be worked out in the context of existing social
conditions to achieve the ultimate objective to reclaim back those offenders to an orderly society.

The provision of Section 4 vests in the court a discretion to release a person found guilty of having
committed an offense not punishable with death or imprisonment) for life. It is really for the court, by
which the person is found guilty, to determine, having regard to the circumstances of the case
including the nature of the offense and the character of the offender, whether or not it will be
expedient to release him on probation of good conduct. It is only when the court forms an opinion
that in a given case the offender should be released on probation of good conduct that the court acts
as provided in the Section.

Where, however, the court is not satisfied with the justification of a release on probation of good
conduct, it will certainly impose upon the offender penalty as provided by the Indian Penal Code. In
case of offenders under twenty-one years of age, special provision has been made in Section 6

Section 4 is general. It applies to all kinds of offenses, whether under or above twenty-one years of
age. Section 4 empowers the court in appropriate cases to release an offender on probation of good
conduct “instead of sentencing him at once to any punishment”.

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Section 4 speaks of punishment and not of imprisonment. The court will not punish him in any
manner if on the facts it is satisfied that a particular person guilty of the offense of the nature
enumerated in Section 4 should be released on his entering into a bond. The word ‘punishment’,
therefore, is wide enough to comprehend both the punishment of imprisonment and the punishment
of a fine. Therefore, Section 4 empowers a court to remit the fine also and on the plain wording of the
section, it will be unreasonable to contend that remission of the fine was not within the competency
of the court.

JUVENILE JUSTICE SYSTEM IN INDIA

This article has been written by Namrata Kandankovi, student of Symbiosis Law School,
Pune. The author of the article has discussed the emergence of juvenile justice in India, the existing
laws in juvenile justice, changes brought in it due to the recent developments and the existence of
juvenile justice systems in other countries, ways to give effect to the rehabilitation of juvenile
offenders and the changes to be brought in the same.

Introduction – Emergence of Juvenile Justice Act in India

In the past few decades, there has been an unprecedented increase in the crimes by children
who are below the age of 16 years. And the reasons advocated for the development of such behaviour
among children are- The upbringing environment of the child, economic conditions, lack of education
and parental care. An even more astonishing part of this aspect is that the children are being used as
tools for the commission of a crime, and this age group includes especially children aged between 6-
12 years, as at this point of time, the minds of innocent children can be manipulated in an easier way.
Under the law – Child is someone who has not attained the age of 18 years and is also not
capable of understanding wrong and right or arriving at a reasonable conclusion. In the modern age of
law, most of the countries dealing with juvenile acts have adopted the principle of “Doli Incapax”
which by the very definition means that the person incapable of understanding the commission of a
crime.

Emergence in India
The development of the Juvenile Justice Act in India can be dated back to the British Era.
This is because it was during the British period when certain laws were enacted to address the issue
of Juvenile delinquency. An example of this can be that of the introduction of the Whipping Act of
1864. This law was passed to punish the juveniles by the way of whipping them for the wrong
committed by them and further creating a deterrence in the minds of juveniles in order to bring an
end to such acts. The Indian Penal Code, 1860 nd the Criminal Procedure Code, 1861, further took
this forth by treating the child differently throughout their numerous provisions. The juvenile justice
system is considered to be a direct consequence of reforms and developments in western countries.
Existing Juvenile Justice System in India
Juvenile Justice Act was enacted by India in the year 1986. Following this, the general
assembly of the United Nations adopted the convention which dealt with the rights of a child, and it
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was in 1992 when India ratified the UNCRC. The main concern of the convention was to uphold and
cherish the right of the child to reintegrate with the society without any judicial proceedings initiated
or running against him and in order to attain this the government felt, there was a need to rewrite the
existing law. And therefore in the year 2000, the old law was replaced by the new – Juvenile
Justice(Care and Protection of Children) Act. And there existed wide differences between the old and
the new law. And the changes were made in order to secure the interest of the Juveniles. One of the
important changes to be taken into consideration was regarding the role of NGOs.
Section 8, 9, 34, 37 and 45 of the Juvenile Justice Act dealt with the role of NGOs and other
organisations – Voluntary organisations may be certified to maintain homes under this act.
Section 45 of Juvenile justice act – The state government is empowered to make rules in order to
ensure effective linkages between various governmental, non-governmental, corporate and other
community agencies for the sake of rehabilitation and social integration of the child.

Role of NGOs and Social Workers – The basic notion which the NGOs are required to carry
forth is offer care and compassion to a child and in addition to this also ensured that his rights are
acknowledged and protected. Since the year 1980 the juvenile justice board has seen a shift from
welfare to Justice approach, and irrespective of this shift the social workers have continued to pour in
all the efforts and have been active participants in health, education and other welfare activities
relating to children for a period of past seven years.
And, hence the Juvenile Justice Board which is usually headed by Metropolitan Magistrate or
Judicial Magistrate of the first class has an additional requirement to appoint two social workers on
board and these social workers should be the selection committee and further, their appointment is
made by the state government. The amendment of 2000 is moreover elevated the position of social
workers to being a part of the bench which constitutes the Juvenile Justice Board.

Juvenile Justice and Constitution of India

The Constitution of India is the Superior law of the land and the constitution lays down the
rights and duties of its citizens which are to be followed. The working of government machinery is
also provided by the constitution. And in addition to all this, Part IV of the Indian
Constitution provides for Directive Principles of State Policy DPSP- and this is provided mainly to
ensure the smooth functioning of the society. And regarding the rights and welfare of the children
following has been provided by the constitution
 Right to Free and compulsory education to all the children aged between 6 to 14 years of
age – Article 21A
 Right to be protected from any hazardous employment under the age of 14 years – Article
24 of the Indian Constitution.
 Right to be provided with proper Standard of living and Good Nutrition – Article 47 of the
Indian Constitution.
 Right to be protected from Human Trafficking and Forced Labour – Article 39 of the
Indian Constitution.

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 The lawmakers while drafting the Juvenile Act of 2015 have hence taken into consideration
all the provisions which have been laid down by the constitution for the welfare and protection of the
rights of children. And for the same reason chapter IV of the Juvenile Justice Act lays down
numerous provisions which have focussed their attention on the betterment and welfare of children
and also the reformation and rehabilitation of juveniles in every possible circumstance.

Indian Penal Code and Criminal Procedure Code

The Indian Penal Code came into being on 1st May 1861 and it was considered to be the first
establishment of codified law in colonial India, and the IPC dealt with both adult and juvenile
offences. Section 82 of IPC lays down – “Nothing is an offence which is done by a child under seven
years of age”. And section 83 of IPC enshrines – ‘Nothing is an offence which is done by a child who
is above 7 years of age and under 12 who has not attained the sufficient maturity of understanding in
order to judge the nature and consequence of his act on that particular occasion’.
Further, there are Section 315 and 316 under IPC which discuss the offence of foeticide and
infanticide. If a person does an act which amounts to culpable homicide which results in the quick
death of an unborn child then the person will be charged with the act of Culpable Homicide.
There are numerous sections in IPC which discuss the matter of Kidnapping and
Abduction. Section 361 states that if a male minor who hasn’t yet attained the age of 16 and a female
minor who hasn’t attained the age of 18 if removed from their lawful guardians without their consent
then the act is termed as the offence of kidnap.

Section 27 of the Criminal Procedure Code deals with the clause of – Jurisdiction in case of
Juveniles, it lays down that – Any offence which is not punishable with death or imprisonment for
life, which is committed by a person below the age of 16 years, may be tried by a court which is
specially empowered under the children act to decide on such, matters. Or it can be dealt with by any
other law for time being in force which is providing for treatment, training and rehabilitation of
young offenders.
Section 437 of the Criminal Procedure Code lays down that a child in conflict with law can
apply for an Anticipatory Bail. Justice Narayana Pisharadi of Kerala High Court held that the child in
the conflict of law has all the rights to apply for anticipatory bail and there is no bar on this by any
provisions of Juvenile Justice Act. The anticipatory Bail of a child in conflict with law is
maintainable in the High Court or the Court of Sessions.

Juvenile Justice – Is it a Criminal Justice or Social Justice?

This aspect of Juvenile Justice laws draws the attention of critics because in most of the
countries of the world the concept of juvenile justice is considered to be that of Criminal Justice, but
at the same time the ministry or the department which is responsible for making laws and
implementing them is the one from the Department of Social Justice. Further, the results arising out
of it because of this mismatch are the following
 There arises a tension between the Protective and Rehabilitative approach of Juvenile
Justice and the traditional approach of dealing with the crime.
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  There will be ample scope for discrimination among the juveniles which will be based on
the nature of the offence at every stage.
 There even arises a confusion in the law and its administration.

Changes brought in JJ Act in the wake of recent developments
The frightful Nirbhaya Case of December 16, 2012, brought the whole nation under shock
and there was a dire need to make changes in the then existing juvenile laws as one of the convicts of
Nirbhaya case was six months away from the completion of 18 years during the time of commission
of the crime and he was considered to be the one accused with being most heinous with regard to the
crime.
It was on December 22, 2015, that the Rajya Sabha finally passed the juvenile justice bill.
 The new law permits juveniles between the age of 16-18 years to be tried as adults if they
are accused of committing an offence of heinous nature.
 That group of 16-18 years will be further examined by the juvenile justice board and this
is done in order to know if the crime was committed by that person as an adult or a child.
 The juvenile justice board is required to consist of a team of psychologists and social
experts and this is made in order to ensure that the rights of a juvenile are protected if the
crime was committed by him as a child.
 Every district in the country must have a Juvenile Justice and additionally a child welfare
committees, which come into play as a consequence of the passage of the bill.

Juvenile Justice Systems in other countries

It was on 20th November 1989 that the General Assembly of the United Nations adopted the
conventions of rights of a child, and this convention even prescribes a set of standard to be adhered
by all the member states and should strive to serve the best interest of a child. It can also be said that
international conventions and instruments have contributed in an immense way to the prevention of
child abuse. This, in turn, helps on a larger scale for the well-being and development of the child. In
addition to this, even international bodies have paid much attention and laid their emphasis on the
aspect of the overall development of the child.

Juvenile justice system in the US

The juvenile justice system is considered to be more flexible and easily enactable in the US
when compared to other countries. There are two important stages in the juvenile justice system in
India which are to be taken note of- In the first stage the police officer has complete rights to keep the
child in his own custody or can even immediately release him or even admonish the offender in order
to stop him for commission of further crimes of similar nature.

After the completion of the trial in the court, the juvenile offenders are sent either to children
homes or any certified schools and this will be based on the order passed by the court.

Under the juvenile justice system in the US, a juvenile will be tried as an adult only in cases
where the age of the juvenile is close to adulthood or when the juvenile is found out to be a habitual
offender.
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Juvenile justice systems in the UK
Juvenile courts came into existence in the year of 1908 in England and their primary aim was
to provide the required care and protection to the children. In addition to this, they also focus their
attention on removing all the unnecessary aspects from the environment around a child, as this can
provide a great opportunity for the reformation of the offenders.
There were two important acts which were brought into being by the English courts which will we be
discussed in the following article.
1. The Children and Young Offenders Act, 1993 under this act the juvenile courts of
England are conferred with special civil powers to take into account the matter in dispute.
In addition to this, it also provides that the cases where the wrongs have been committed
by young and child offenders should be tried in the juvenile courts itself and not in any
other courts.
2. The Criminal Justice Act 1948, this act is considered to be a new development in the
Legislation of England and this act deals with the rights of juvenile offenders. The prime
motto of the act was to provide security to a class of offenders and ensure their
rehabilitation by sending them to remand homes.
Causes of Juvenile Delinquency in India
There are numerous causes and reasons put forth for juvenile delinquency in India, and it is often
difficult to recognise and correct such a behaviour amongst children, and this happens because every
individual has a different behavioural matter and especially among children it tends to change over
time and hence, it becomes difficult to identify such a behavioural pattern. Following are the causes
listed for Juvenile delinquency in India.
 Economic Instability and poverty– Abject poverty and economic instability among
families in India are considered to be the major contributing factors to the increased
juvenile delinquency. Non-availability of basic resources among numerous people gives
rise to delinquency and this further results in habitual tendency to continue in the same
line.
 Sexual Indulgence– Children who were subject to unwanted sexual activities or any kind
of sexual assault in the early years of their childhood end up exhibiting a repulsive
behaviour. Too much sexual variance among boys may further lead to the commission of
crimes by them like that of kidnapping and rapes.
 The disintegration of Family– Lack of parent control and care towards their children and
disintegration of families add to be the main causes for delinquency. Divorce of the
parents and the absence of a caring and affectionate environment in the homes also act as
promoters of juvenile delinquency in India.
 The advent of modern lifestyles– The rapidly growing and evolving times make it
difficult for a majority of kids and adolescents to cope with and this may further lead to
delinquency among the children.
 Migration– Migration acts as one of the major causes of the commission of an offence by
the juveniles. For example- migration of boys to deserted and slum areas brings the in

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 contact of anti-social elements and they are very much prone to get affected by them in
many possible ways.

How to curb the wrongs committed by juveniles?

Juvenile delinquency in India is defined as the habitual commission of criminal acts or
offences by young persons, who are usually below the legal age of maturity. In order to curb the
wrongs committed by the juveniles, there are various developments brought into being by the
juvenile justice act, and they are discussed as under

Juvenile Justice Board

Whenever an inquiry satisfies the juvenile justice board that the offence committed by the
child was a petty offence then they are required to take the following measures
 Allow the child to return home after admonishing him or after properly advising him or
her.
 Order to the child to perform community service, as this helps in instilling good values
among the children and such a measure is to be undertaken when the offence is of quite a
graver nature.
 Get the child to participate in group counselling and similar types of activities as this
greatly helps in the rehabilitation of the child.
 The child is required to be released on probation if he was seen to exhibit good conduct.
 When the offence is not of a petty nature and quite grave, then the child should be sent to
a special home for a period not exceeding 3 years.
 The child or even his parents can be advised to pay fine, and this further acts as a
deterrence.

Proper observational homes and facilities for juveniles

The constitutional guarantees to the juveniles are the same as those promised to the adults and
one of the important guarantees among them being a fair trial. However, it is an accepted notion that
the adults usually secure the bail faster when compared to that of juveniles. Merely because the
juveniles are not punished does not mean their constitutional rights are taken away from them. It is
rather a duty cast on the government to ensure the rehabilitation of such offenders happens. In order
to ensure this, governments are required to provide proper observational homes. The observational
homes come to act as transit points and hence it is important for them to offer vocational training and
education to the juveniles and further make sure there is a good atmosphere maintained in the homes
in order to benefit the transformation of the juveniles.

Rehabilitation of Juveniles in India

Taking into consideration the prevailing scenario it can be said that there many loopholes
when it comes to rehabilitation of juveniles in India. The Juvenile Justice (Care and Protection of
Children) Act 2000, is indeed a very good law but at the same time, it lacks the demanded
infrastructure. Further, dragging one’s attention to the statistics released every year in India it can
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again be said that, the juvenile boards in are less than the expected numbers in various districts of
India and are also not up to the mark in terms of their efficiency.
The prime essence of juvenile justice boards in India is to have a group of medical officers,
social activists who have been adequately trained, counsellors and psychiatrists. The presence of
these people would help the board in arriving at the right decision in terms of future actions to be
taken with regard to the juveniles committing crimes in India. But the sad reality again is that there is
a dearth of these experts and this, in turn, is resulting in not attaining the excepted results by the
board. Now, it is the work of each state government to implement all the requirements and ensure
there is proper working of the broad in each and every district and it is also leading to the attainment
of the desired results.

The aspect of media is also to be taken into account. The attention of media being dragged to
the child as either a victim or an offender is very damaging to the child as the children are of tender
age and are not generally expected to have the required maturity. Hence, in order to be in line with
this, the juvenile justice act had issued the guidelines that, the child’s identity should not be disclosed
anywhere in the media and the photographs of the child are not be published anywhere. If there is an
inquiry held against a child under the JJ act, then there should be no report in the newspaper or
magazine or any news sheet which is allegedly disclosing the name, school or identity of the child.
The act further allows such a report to be made only if it is in the interest of the child.

Conclusion
The measures to be taken for the benefits of juveniles can be brought into reality only if there
exists a proper linkage between the state and various district governments. Additionally, there is also
a requirement for the child rights activities and groups to take up the initiatives of the transformation
of juvenile offenders and this would further boost the process and help in bringing the desired change
on a larger perspective. The increasing crime rated among the juveniles in the recent times and
absence of deterrence among them creates an alarming situation which is to be given full attention to
the earliest.
The measures mentioned in the article regarding the curbing of offences by juveniles require
special attention and implementation of the same. With the current rate of crimes by juveniles, it is
expected to be on a rise in the forthcoming years and therefore needs to be stopped in its initial stages
itself.

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 QUESTION BANK (2013 to 2019)

THE CODE OFCRIMINAL PROCEDURE, 1973 & FATA

PART - A

1.Explain the various types of Criminal Courts and their powers under the Criminal
Procedure Code .1973.

2.Evaluate the role of the defence Counsel in Criminal trials.

3.”The right to speedy trial is an integral part of the Right to liberty guaranteed under Article
21 of the Constitution of India-Comment

4.Write an essay on release of offenders on probation in India.

5.Discuss the law relating to “Juvenile delinquency”.

6.What are the important changes made by the present Criminal Procedure ode-1973 to
speed up disposal of criminal cases?

7.Define the warrant of arrest.State the circumstances in which a police officer can arrest
without warrant,under Criminal Procedure Code -1973.

8.”Wife unable to maintain herself is entitled to get maintenance from her husband”-
Comment.

9.Explain the procedure relating to trail before court of sessions.

10.Explain the orders that may be passed regarding juvenile in conflict with law.

11.Is our CPC 1973 is simple,expeditious and inexpensive in achieving its goal?

12.Define and differentiate between Inquest,Inquiry Investigation and Trial.

13.”In every arrest there is custody, but vice versa is not true”-Explain.

14.Who are the persons from whom bond for good behavior can be taken?

15.Describe the important characteristics of juvenile courts.

16.What was the principal object of CRPC 1973? Discuss the recent amendments on CRPC
1973.

17.Define and differentiate between offence, cognizable offence and compoundable offence.

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 18.What are the occasions in which a police officer can arrest without an order from a
magistrate?

19.What are the powers and duties of the appellate court in deciding the appeal?

20.Explain the circumstances under which a convicted person may be released on probation.

21.What are the special features of the of Criminal Procedure -1973?

22.How arrest can be made? What are the right of the arrested person?

23.What is the primary object of framing charge? When charge may be framed?

24.What are the conditions which must be satisfied before ‘maintenance’ can be granted?

25.Explain the rule that any person can set the criminal law in motion state its execeptions.

26.What are the circumstances under which a person may be ordered by a court to make
monthly allowance of his wife and children.

27.Explian the procedure to be followed by a police officer on receipt of information

relating to the commission of a cognisable offence and non-cognisable offence.

28. What are the formalities and precautions to be observed by a magistrate in recording the
confession of an accused person?

29.What are the factors responsible for delinquency among children? Give your suggestions
to control the problem.

30. Code of Criminal Procedure generally extends to investigation inquiry or trial of every
offence committed – Explain.

PART B

1.Supreme Case
2.Private Complaint.
3.Joinder of Charges.
4.Anticipatory Bail.
5.Trial of an Unsound mind person.
6.Arrest.
7.Transfer of a Criminal Case.

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 8.Criminal Appeal.
9.Death penalty.
10.Judicial Custody.
11.Adminition.
12.Borstal school.
13.Complaint.
14.Discharge and acquittal.
15.Execution.
16.D.K.Basu vs. State of West Bengal.
17.John Augustus.
18.Plea of guilty.
19.Inherent powers of High Court.
20.Revision.
21.Complaint to a magistrate.
22.Discharge.
23.Error in charge.
24.First Information Report.
25.General provisions as to enquiries and trial.
26.Victim compensation.
27.Irregular proceedings.
28.Juvenile offenders.
29.Age of Juvenility.
30.Bond of good behavior.
31.Constitution of criminal courts
32.Duties of Probation Officer.
33.Executive Magistrate.
34.First Offender to be released on admonition.
35.Governmernt power to remit sentence.
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 36.Habitual offenders.
37.Inherent powers of High Courts.
38.Judicial Magistrate Courts.
39.Arrest without warrant.
40.Bailable and Non-Bailable offences.
41.Conviction for different offence than charged.
42.Double jeopardy.
43.Examination of complaint.
44.Final Report of police.
45.Suspention of Police.
46.Observation home.
47.Inferior courts.
48.Juvenile Justice Act 2000.
49.Explain Summons case.
50.Tender of pardon to an accomplice.
51.Withdrawl from prosecution.
52.Joinder of charges.
53.Probation officer’s report.
54.Neglected juvenile.
55.S.437 Cr.P.C.
56.Remand.
57.Anticipatory Bail.
58.Cognizable offence.
59.Pre sentencing hearing.
60.Inquest report.
61.Remissionary sentence.
62.Case diary.
63.Judicial custody.
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 64.Compoundable offences.
65.S.161(3)-Cr.P.C.
66.Joint trial.
67.Appeal
68.Fair trial to accused
69.Special home
70.Inquest

PART C

1.’A’ is tried upon as charge of theft as a servant and acquitted.While the acquittal remains
in force, he is charged with breach of trust.decide the legality.

2.’A’ is tried for the offence of adultery with ‘C’ the wife of ‘B’. ‘A’ and ‘C’ want to
compound the offence. Discuss.

3.’A’ a witness called before the criminal court refusews to anssuch refusalwer the questions
which are put to him.He does not offer any reasonable execuse for such refusal.Can the court
sentence him for such refusal.

4. ‘A. pleads guilty in a case, before the Court of sessions. He is willing to prepare an appeal
against the conviction. Advise him.

5.A FIR is registered in delayed manner. In a trial before the court ,decide the legality of
FIR.

6.’A’ after commiting muder at thirunelveli , absconded and afterwards he was arrested near
Mumbai.Discuss the place of trial.

7.’A’ made an oral allegation before a magistrate with a view to take actions against some
unknown persons who have commited a cognizable offence. Whether this can be acted upon?

8.In a particular case because of the non-availability of Assistant Public Prosecutor, the
District magistrate appointed a police officer as Assistant Public Prosecutor; who also took part in
the investigation of the case. Is the appoinyment and the subsequent trial are valid one ? Expalin.

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 III YEAR OF 3 YEAR LL.B
SEMESTER - V
ODD SEMESTER

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SUBJECT : ENVIRONMENTAL LAW
SUBJECT CODE : TA5C

Page 2 of 165
 SYLLABUS
TA5C – ENVIRONMENTAL LAW
Unit - I
Bio - Geographical aspects of our Environment.
Unit - II
Socio - Economic dimensions of our Environment.
Unit - III
Problems affecting the Environment and factors responsible for environmental
degradation.
Unit - IV
Policies of the State for abatement of Pollution and for conservation.
Unit - V
Constitutional obligation to protect the natural environment.
Unit - VI
Right to live in a healthy environment - Evolution and principles / Doctrines
propounded by the Judiciary.
Unit - VII
History of evolution of law to handle pollution and other environmental problems in
India.
Unit -VIII
Remedies for environmental pollution available under common law and Statute law
(Remedies under law of torts, Indian Penal Code, Criminal Procedure Code, Civil Procedure
Code)
Unit - IX
Laws relating to control of pollution:
Unit - X
National Green Tribunal
Unit - XI
Water pollution - meaning - authorities under the water act. - powers and functions of
Central and State Pollution Control Boards - activities prohibited and regulated under the Air
Act. - Penalties for violation
Unit - XII
Air Pollution - meaning - authorities under the Air Act -Powers and functions of
Central and State Pollution Control Boards - activities prohibited and regulated under the Air
Act. - Penalties for violation.
Unit - XIII
Noise Pollution - Law relating to noise pollution - provisions under the Police Act -
Noise Rules 2000.
Unit - XIV
Pollution of Land - waste management - issues relating to use of plastics - Hazardous
waste management rules - Bio-medical waste Management Rules.
Unit - XV
Ground water pollution - management of ground water sources - Madras Metropolitan
area Ground water Regulation Act. 1987.
Unit - XVI
Law relating to Conservation of Forest and Wild Life.
Unit - XVII
Law relating to Prevention of Cruelty to Animals.
Unit - XVIII
Environmental Protection Act and Rules made there under Notifications issued under
the Act.

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Unit - XIX
Role of Social movements in Environmental Management.
Unit - XX
International Environmental Law - Significance of various international convention to
protect the environment and the principles declared in the Conventions.
Unit - XXI
Region Specific environmental problems - Status report of environmental problems in
the state of Tamil Nadu.
Statutory Materials with Amendments
1. Wild life (Protection) Act, 1972.
2. Prevention of cruelty to Animals Act, 1960.
3. The Water (Prevention and Control of Pollution) Act, 1974.
4. Forest (Conservation) Act. 1980.
5. The Air (Prevention and Control of Pollution) Act, 1981.
6. Environmental (Protection) Act, 1986.
7. Public Liability Insurance Act, 1991.
8. National Green Tribunal Act, 2010

Books for Reference :

1. Armin Rosencranz Etal (ED), Environmental Law and Policy in India. - Tripathi,
Bombay.
2. Armin Rosencranz Etal (ED), Environmental Law and Policy in India: Cases,
Materials and Statutes, Tripathi, Bombay.
3. Centre for Science and Environment, The State of India's Environment - A Citizens'
Report, Delhi.
4. Indian Law Institute, Environmental Protection Act: An Agenda for Implementation,
Tripathi, Bombay.
5. Jaswal Ps.and Nishtha Jaswal, Environmental Law, Pioneer Publications, Faridabad,
Harayana.
6. Lal's Commentaries on Water, Air Pollution and Environment (Protection) Law, Law
Publishers (India) Pvt. Ltd.
7. Sahasranaman, Pb, Law of Environment Protection (1997) Classic Publications,
Bangalore.
8. W.Bernie, Patricia and Boyle, Alan, Basis Documents on International Law and the
Environment (1995), Oxford University Press,
9. Paras Dlwan, Environmental Law Volume (1,2,3).
10. P. Leelakrishnan : Environmental law in India.
11. S. K. Shukla : Environmental protection laws.
12. L. Agarwal : Legal control and Environmental pollutions.
13. S. Shanthakumar : Environmental law

**************************

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 ENVIRONMENTAL LAW- FSC- V YEAR / TLC- III YEAR.

ENVIRONMENTAL LAW – (TA5C)

UNIT - I

BIO-GEOGRAPHICAL ASPECTS OF OUR ENVIRONMENT

 MEANING OF ENVIRONMENT

 THE ENVIRONMENT

 THE BIO SPHERE

 ECOLOGY

 ECO SYSTEM

 MAJOR ECOSYSTEMS OF THE EARTH

 FOOD CHAIN AND FOOD WEB

ENVIRONMENTAL LAW AND ECOLOGY – AN INTRODUCTION

“The basic insight of ecology is that all living things exist in inter-related
systems; nothing exists in isolation. The world system is web like; to pluck one strand
is to cause all to vibrate; whatever happens to one part has ramifications for all the
rest. Our actions are not individual but social; they reverberate throughout the whole
eco-system.”

A. Fritsoh

The World Health Organization (WHO) has observed that over 70 per cent of all human
ailments are influenced by environmental deterioration. The industries are the sources of
hazardous emissions and effluents. The use of chemical insecticides and pesticides in
agriculture also leaves dangerous residues. Transport, whether by land or water or air
contaminate the environment. Public health infrastructure – sewage, garbage, and drainage –
has a detrimental impact on the environment. The food we eat, the water we drink and the
house we live in are not free form contaminants, affecting our health, and causing a spectrum
of ailments. Noble laureate Paul Crutzen – one of the first scientists to identify the cause of
the hole in the ozone layer – said up to two million people in the India alone were dying each
year from atmospheric pollution.

Since environmental pollution has become a major threat to human survival and
development, ‘Environmental Law’ has emerged as one of the most important tool for
promoting development without destruction.

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MEANING OF ENVIRONMENT:

‘Environment’ simply means ‘surrounding’ and that is way Einstein defined it, as
“Environment is everything that isn’t me”. Obviously, ‘environment’ is a concept that is
relative to whatever object it is which is surrounded. If used in that sense, environment could
include virtually anything and everything.

Hence, there is need for a specific definition for the word ‘environment’. The
Environment Protection Act, 1986, defines ‘environment’ as “environment includes water, air
and land and the inter-relationship which exists among and between water, air and land and
human beings, other living creatures, plants, micro-organism and property”.

‘Environmental Law’ refers to that to set of enforceable rules and principles regulating
the activities of persons, natural or legal, which have impact on ‘environment’. To be more
precise, Environmental law is an instrument to protect and improve the environment and
control or prevent any act or omission polluting or likely to pollute the environment.
‘Environmental Law’ is thus perceived as one of the most important and modern tools of
environmental management.

The issue of the ‘environment’ is a big issue in political terms. It is big in terms of the
size of the problems faced and the solution required; global warming, the destruction of the
ozone layer, acid rain, deforestation; overpopulation and toxic waste are global issues which
require an appropriately global response. It is big in terms of the range of problems and issues
– air pollution, water pollution, noise pollution, waste disposal, radioactivity, pesticides,
countryside protection, and conservation of wildlife – the list is virtually endless. The issue
range ‘from the street corner to the stratosphere’. Finally, it is big in terms of the knowledge
and skills required to understand a particular issue. Law is only one element in what is a
major cross-disciplinary topic and lawyers need some understanding of the scientific,
political and economic processes involved in environmental degradation.

The ignorance of natural science has greatly impaired society’s ability to solve the
growing number of environmental problems. When people lack even a basic understanding of
science, politicians, interest groups, and many others who use “scientific” data to influence
public opinion for their own purposes, can easily sway them. Hence, citizens must try to
become better informed about basic science, especially environmental sciences, by taking a
college course or by keeping up with environmental news in newspapers, magazines, and
books.

An attempt to is made here to introduce certain ecological concepts like the Bio-sphere,
Ecology, Eco-system, Food Chain and Food Web, Ecological pyramid, etc.

THE ENVIRONMENT:

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 The environment is everything that surrounds you, including the natural environment can
be classified into two divisions:

(1) the physical environment, which includes non-living things, such as land, air and
water; and

(2) the biological environment, which includes all life forms including the plants,
animals and other living organisms.

The physical environment can be further classified into the three basic states of physical
matter: solid, liquid and gas. This division creates four “spheres” that compose the natural
environment.

The three physical sphere are called:

The Lithosphere (“lithos” = rock)

Hydrosphere (“hydro” = water)

And Atmosphere (“atmos” = vapour).

The biological environment is called the Biosphere (“bios” = life)

THE BIO SPHERE:

We live on the earth, which is a unique planet in the solar system. Its uniqueness lies in
that its environment is favorable for the evolution and survival of various forms of life.

This is because of the optimum distance of the earth from the sun. Temperature on the
earth is neither too high as in Mercury nor too low as in Neptune and Pluto.

The Layer of air, which surrounds the earth, consists of oxygen, which is very vital for
survival of all forms of life. The moderate temperature conditions enable water to be present
in large quantities in the earth in all the three states viz., solid, liquid and gaseous.

The presence of water favors the growth and evolution of various species of plant and
animal life including human beings.

Thus the earth is unique in having a life-bearing layer which is popularly called the
Biosphere.

The Biosphere has a variety of organisms, which are broadly divided into plants, animals
and Microbes.

More than ten lakes animal species and three lakhs plant species are known to exist.

These organisms exist in the zones of contact between the atmosphere, hydrosphere and
the lithosphere. There is an exchange of matter and energy between these three elements if
the physical environment and the organisms in the biosphere.

Though the biosphere is relatively a thin layer, it has great significance for our life.

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 The organisms in the biosphere provide a variety of food for us and also raw materials
which provide clothing and shelter and other needs of man.

Our existence and survival on the earth depends on the biosphere. Therefore it is
necessary to understand the interrelationships between the organisms in the biosphere and
also the links between the physical environment and the biosphere.

Plants, animals and other organisms together with the physical environment with which
they interact constitute the ecological system or Ecosystem.

ECOLOGY:

The term “eco” is derived from the Greek Word oikos, which means “home”. Since logia
means “study of “in Latin, ecology is the “study of home”. Ecology is the “study of how
organisms interact with each other and their physical environment”.

Henry David Thoreau was apparently the first to use the word ecology in one of his letters
in 1858, but he did not give it a specific definition. Instead, the German Biologist Ernest
Haeckel is generally credited with introducing, in 1866, the word as it is now used in biology
to mean “…. The knowledge of the sum of the relations of organisms to the surrounding
outer world, to organic and inorganic conditions of existence”.

Warming defined “Oekologie” as “the study of organism in relation to their

environment”. American ecologist Frederick Clements considered ecology to be “the science
of the community”, whereas British ecologist Charles Elton defined ecology as “scientific
natural history concerned with the sociology and economics of animals”. Odum, another
biologist has in very simple way defined ecology as “the study of structure and function of
nature”.

ECO SYSTEM:

The Ecosystem consists of both living/biotic and non-living/abiotic components.

The non-living components of the ecosystem consist of chemical substances found in the
soil, water and atmosphere.

These chemicals may be inorganic substances like water, oxygen, carbon-di-oxide, and
minerals like phosphates, nitrates, etc., or organic materials like carbohydrates, fats, proteins
and vitamins. Other abiotic elements of the climate are temperature, rainfall, duration of
sunlight, winds, nature of soil, slope of the land, composition of water bodies, etc.

The biotic components are broadly divided into two major groups the producers and the
consumers. The producers are organisms, which produce their own food from the physical
environment. These are called autotrophic organism.

Green plants are primary producers as they produce organic matter utilizing sun’s radiant
energy. This is called photosynthesis, as organic materials are synthesized using sun light,
minerals and water from the soil and carbon dioxide from the atmosphere.

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 An organism that feeds only on plants is called a herbivore or primary consumers.

For example a rabbit is a herbivore. A consumer that feeds on animal only is called
carnivore. The human beings are omnivore as they eat both plants and animals.

A fourth group of consumers feeds on dead or decomposed tissues of plants and animals.
They are called decomposers or detritus feeders, for example bacteria, fungi, termites, etc.

Apart from getting energy and nutrients from the plant and animal, the detritus
decomposers convert organic materials into inorganic substances.

MAJOR ECOSYSTEMS OF THE EARTH:

There are two major types of ecosystems. They are Aquatic ecosystems and Terrestrial
ecosystems. Aquatic ecosystems can be further classified as fresh water, estuarine and marine
ecosystems. Terrestrial ecosystems can be further classified based on climatic conditions.

The Concentration of dissolved oxygen and the penetration of sunlight in the water and
the availability of various life supporting nutrients are the contributing factors for the
existence of aquatic organisms. As far as the terrestrial ecosystems are concerned, they are of
great concern for us, because we live on the land and our needs for food and other materials
are provided by the terrestrial ecosystems.

The surface of the land has a cover of vegetation of great diversity depending on the
climatic conditions. Plants occur in distinct groups of communities in areas having similar
climatic conditions. These are called Biomes.

Biome is a large ecosystem occupuing a part of the earth like the Tundra, Grasslands,
Tropical forests, Coniferous forests, Desert vegetation etc. Each Biome has a distinctive type
of vegetation and animal life.

The type of soil and climate determines the type of vegetation and animal life. Apart from
the above there is also a very close relationship between animal life and vegetation in a
region. The vegetation in a region, apart from providing food also provides suitable habitat
for animals.

FOOD CHAIN AND FOOD WEB:

All organisms, including man need food, which provides energy for growth, maintenance
and reproduction. A part of the energy provided by food is used for biological processes and
the rest is dissipated to the environment as heat energy by the process of respiration.
Undigested food is excreted and enters the detritus path. In grassland, rabbits eat grass and
foxes eat rabbits. This is a simple food chain.

In cases where some organisms eat a variety of other organisms, food chain becomes
more complex, such complicated network of food chain is called a food web.

As a variety of organisms live in the ecosystem and there is competition for food among
them, food webs become very complex.

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ECOLOGICAL PYRAMID:

Each group of organisms occupies a trophic or feeding level. All green plants and other
production in the ecosystem occupy the first trophic level. Herbivores, which feed on plants,
occupy the second trophic level.

Carnivores that eat herbivores are at the third trophic level.

The different levels are not equal in terms of energy available, as only a fraction of
energy is transferred from lower to higher level. The trophic levels may be represented in the
form of a pyramid called the ecological pyramid.

An understanding of the interrelationship between the different species of plants and

animals living in an ecosystem is very much essential for maintaining an ecological balance
in the biosphere.

Owing to improper planning, a human activity such as agriculture, forestry, commercial

grazing, fishing and hunting has disturbed this balance leading to extinction of certain
species.

Clearing of forest for mining, construction of dams for irrigation, draining of swamps for
urban growth etc., have a long-term impact on the ecosystem.

Similarly a change in the circulation in atmosphere and hydrosphere also affects the
functioning of the ecosystem by modifying the energy and nutrient movement through the
organisms in the biosphere.

UNIT – II

Socio – Economic dimensions of our Environment

“Economists see a world economy that has grown by leaps and bounds over the last
half-century, but ecologists see growth based on the burning of vast quantities of cheap fossil
fuels, which is destabilizing the climate”.

- Lester R. Brown

The environment that surrounds man is three-fold.

There is (1) the social environment – the environment of other people which encircles man
from birth till death;

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 (2) the cultural environment – the environment of rules and tools with which man, the
inventive animal, always surrounds himself;

and (3) the natural environment- the planetary stage on which social drama is enacted. We
are concerned with the 3rd environment that consist of ‘… land, water, climate, atmosphere,
heavenly bodies and plant and animal life, or to use the more technical terms, flora and fauna,
insects, and the invisible life of microbe.’

Analytical study of the natural environment is the province of disciplines such as botany,
zoology, bacteriology, geography, and ‘ecology’, yet the sociologist shows concern for it,
because the social institutions resemble the eco-systems of the nature and the natural
environment has direct and immediate impact on man.

The system model in Sociology postulates that the social system selectively exploits the
ecological system. Simultaneously, the ecological system adopts itself to society and sustains
it and its technological needs. Thus, the social system takes the inputs from the ecological
system including fuel, petroleum, food, wood and so on. On the other hand, human beings
often do not pay back to nature for what they take. In other words, this ‘ecological
borrowing’ is the root of environmental crisis.

The eco-system model points out it are the human beings who need to play a powerful
role in maintaining balance between organism and their environment. The eco-system model
indicates severe backlash from natural disaster if human beings do not mend their
irresponsible attitude to environment. The functionalist model sees today’s environmental
problem as latent dysfunction of industrialization. The economic changes that helped create
modern industrial society also threw the environment out of balance.

The conflict model looks at exploitation of the environment as just one more result of
social exploitation. According to the conflict theories, the wealth industrialized nations are
using their power to rob the poor nations of their natural resources thus making the rich
nations richer and the poor nations poorer. Now, when less developed new nations are trying
to industrialize themselves, they find that the cheap energy and raw materials that helped
develop the wealthy nations are gone.

The Calcutta High Court in Calcutta Youth Front v. State of West Bengal (1986 (2) CLJ
26) has held that the problem of environmental degradation is a social problem. The Calcutta
High Court in People United for better living in Calcutta v. State of West Bengal AIR 1993
Cal.215 at 217 has observed that “considering the growing awareness and the impact of the
environmental problem on the society in regard thereto, law courts should rise up to the
occasion to deal with the situation as it demands in the present day context. Law courts have
a social duty since it is a part of the society and as such, must always function having due
regard to the present day problems which the society faces. It is now a well settled principle
of law that socio-economic conditions of the country cannot be ignored by a court of law
because the benefit of the society ought to be the prime consideration of law courts”.

THE EFFECTS OF ECONOMIC GROWTH ON ENVIRONMENT:

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 The affluence (i.e. material aspects of per capita consumption of goods and resources)
is an important factor in man-resource-environment relationship.

There is a fundamental conflict between traditional concepts of economic growth and

the preservation and conservation of environment.

While Economists tout record breaking increases in global commerce in recent

decades, more sobering statistics are being put forth by the world’s leading Biologists:

The loss of living species in recent decades, they report, represents the largest mass
extinction since the dinosaurs were wiped out 65 million years ago.

Globalization is a powerful driving force behind today’s unprecedented bio-logical

implosion. Trade in timber, minerals, and other natural commodities is climbing, and many of
the world’s hot spots of biological diversity are now threatened by a surge of international
investments in resource extraction. Yet, the new rules of the global economy pay little heed
to the importance of reversing the biological impoverishment of the planet.

Human beings remain fundamentally dependent on the natural world. One short coming
of conventional economics is failure to account for the critical services provided by natural
eco systems such as forest, wet lands, coral reefs, rivers and seas.

In 1977, a team of 13 Ecologists, Economists and Geographers published a path-breaking

article that put a price tag on the value of a range of factions provided by these eco systems.

The study covered a broad array of services, including genetic resources, flood control,
pollination, water supply and erosion control.

The authors arrived at the stunning conclusion that the economic value of “natures
services” adds up to some $33 trillion each year-almost as much as the entire annual gross
world product.

Despite their value to human kind, eco-systems are being degraded at an unparalleled rate
as a result of human activity. For example, the planet’s forest cover is steadily shrinking as
population and the global economy continues to expand.

Mining and petroleum development also threaten the health of the world’s forest,
mountains, waters and other sensitive eco systems.

Besides disturbing valuable eco-system, mining also can be devastating for local people.

Like Mining companies, multinational oil and gas firms continually scour the planet for
new development opportunities, as the most accessible fields in industrial countries have
already been tapped.

One of the most important of the side effects of development is environmental

degradation.

People who see or anticipate the environment degrading realize that it is going to degrade
the entire life support system.

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 According to their perception, the only way they can prevent the environmental
degradation is to oppose the development projects.

Thus a conflict grows in intensity-the developer says that there cannot be development
without environmental destruction.

They are vehement that the environmentalists are preventing development and progress.

The environmentalists allege that the developers are destroying the environment, making
further development impossible and the development process unsustainable.

The two sides are locked in battle. This conflict cannot be resolved within the framework
of the conventional paradigm.

SOCIAL AND ECONOMIC EFFECTS OF WATER POLLUTION:

Pollution causes a number of effects on the society as well as on the economy. Pollution
of water sources has many economy effects.

The economic effects are in the form of damage to property, damage to land, reduction in
crop productivity, loss of plants and animals of economic importance, reduced fish catch,
navigational interference, reduced drinking water availability, loss in recreational and other
amenities, loss to industry and above all the cause of illness and death caused by such
pollution. These economic losses in one way or the other affect the society.

Heavy monetary investment in cleaning operation of rivers, lakes, ponds, estuaries,

coastal waters etc., and chlorination and treatment of drinking water are incurred by agencies
who sometimes do not benefit by such operations.

Industries may have to suffer added costs of treatment of polluted water, when it is
required to be used in some of its production process or by withdrawing large quantities of
water from the same source or by going to a different less polluted source of water. These
additional costs may ultimately be passed over to society.

The costs of water pollution are huge and enormous. It is not easy to express many of
these costs in monetary terms.

For example, it is almost impossible to measure the costs of not being able to swim in
some river or not being able to catch fish in it or measure loss resulting from extinction of
many plants and animal species of aesthetic cost of a polluted lake or water way.

SOCIO-ECONOMIC EFFECTS OF AIR POLLUTION

Individuals and society suffer a direct loss as a result of the effects of Air pollution on
plants, animals, property and human health. Air pollution causes a number of socio-economic
effects, namely:

1. Monetary loss due to illness and death and incidental loss resulting from abstention
from work due to ill-health and incidental loss due to decreased productivity;

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 2. Increase of travel costs and time of travel due to reduced visibility, together with
increased risk of accidental injury in travel because of decreased visibility;

3. Increase of cost of artificial illumination;

4. Cost of repair of damage to buildings and other structures;

5. Increased cost of cleaning;

6. Losses due to damage to crops and vegetation;

7. Losses due to injury to animals of economic importance;

8. Extra costs of manufacture because of pollution from outside sources;

9. Investment loss in control of air pollution.

Attempts have been made to assess some of the losses whereas some of the losses such as
discomfort, aesthetic loss, etc., cannot be assessed in simple economic terms. It is estimated
that Americans spend more than $10,000 million a year on medical problems caused by
outdoor pollutants. Similarly, the cost of damage to crop production, due to air pollution in
the Sacramento valley in California has been assessed at $100 million per year. No such
comprehensive assessment of economic costs of ecology in India is attempted so far.

Effective control of air pollution has many social benefits. Clean air not only means
reduction in many costs but a healthier and brighter environment. The industrialist shift the
loss caused by air pollution on the society. The Government also spends a huge sum every
year for maintaining public health. If air pollution could be kept under control, this
unnecessary expenditure can be reduced and thereby the society can be relieved of economic
pressure apart from relief from pressures caused by pollution.

STEPS INVOLVED IN ENVIRONMENTAL PLANNING:

1. Assessment of environment resources – both renewable and non –renewable and their
present status;

2. Determining the rate at which the environmental resources would need to be exploited to
fulfill our basic needs.

3. Identifying the environmental problems which exist and/or would arise in the course of
exploitation and use of environmental resources;

4. Preparing an integrated short term as well as long term plan for tackling all environmental
problems and for systematic and scientific exploitation and use of the environmental
resources and their conservation and development;

5. Creating the necessary constitutional and legal framework, the institutional set up and the
administrative infrastructure for the proper implementation, monitoring and review of the
environmental plan; and

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6. Integrating the environmental plan with the plan for socio-economic development of the
country so that both support and sustain each other and are mutually complementary.

In India, environmental planning started effectively from the Sixth Five-year Plan (1980-
85). The Sixth five-year plan for the first time in India devoted one full section to “Ecology
and Environment”.

This plan document recognized the ‘imperative need to carefully husband our renewal
resources of soil, water, plant and animal life to sustain our economic development’.

The Seventh Five-Year Plan and the Eighth Five-Year Plan also recognized the need for
environmental planning to a certain extent.

But, on the whole, the plan documents have not attempted to formulate any integrated
‘environment plan’ comprehensively covering all relevant aspects of environment.

UNIT - III

PROBLEMS AFFECTING THE ENVIRONMENT AND FACTORS RESPONSIBLE

FOR ENVIRONMENTAL DEGRADATION

 INTRODUCTION

 AIR POLLUTION

 WATER POLLUTION

 SOIL EROSION & LAND DEGRADATION

 DEFORESTATION

 HUMAN IMPACT ON BIOSPHERE

 DEPLETION OF NATURAL RESOURCE

 NOISE POLLUTION

 PROBLEM RELATING TO URBANIZATION

 CONCLUSION

 INTRODUCTION

The relationship between human being and his environment has varied from place to
place at a given point of time.

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 In the very early stages of human history, human beings considered the environment as
very dominant and that was why, they worshipped different aspects of nature like trees,
forests, animals, mountains, rivers, etc. They were very much afraid of these elements of
nature like lightning and thunder, heavy rains, dense forests, wild life, large rivers, etc.,
because of the reason that they had no tools to overcome the danger posed by the
environment.

When man started making tools out of stone and metals and learnt the use of fire, their
impact on the environment came to be felt. With the help of their tools they cut the trees for
using it in their houses.

They used fire for clearing forests and grasslands to enable them to occupy those places
for their living.

Hunting of animals increased because of the invention of various tools.

Industrial revolution, invention of steam engines and other machinery, the development
of transportation and other scientific and technological advancements have contributed a lot
towards environmental degradation.

These factors provided human beings opportunities to manipulate the environment.

With the help of the above factors man changed his environment to suit his needs and of
course to satisfy his greed.

The developments in agricultural science provided abundant food and wealth, which
helped people to settle firmly in one place and this lead to the growth of the size of the
family.

Advancements in medical science also helped human beings to protect them from
epidemics and other serious diseases, which in turn reduced the death rate and increased the
span of human life.

Environmental degradation comes about due to erosion and decline of the quality of the
natural environment.

It is caused directly or indirectly by anthropogenic activities that extract various

environmental resources at a faster rate than they are replaced, and thus depleting them.

Because of the population explosion people are facing scarcity of resources like food and
energy.

Natural calamities like droughts and floods, and environmental pollution takes a heavy
toll of human life.

The large-scale consumerism has brought the mankind at a stage where our need have
gone beyond the means to fulfill them. In our desire to reach the maximum production limit,
we have started borrowing from the resources meant for future, which we know very well

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that we cannot repay. As a result we are using all those resources which are in fact the future
generation’s property.

Our resources are meant not only for the utilization of the present generation but also for
the future generation. A balance between the growth of population and utilization of resource
is the need of the hour.

This balance alone can ensure the continuity of human race. Any imbalance will
certainly have an adverse impact on us.

Degradation of environment is not something new. From history we can learn that
unscrupulous human activities have resulted in degradation of environment and also the
extinction of many civilizations. The decline of Mesopotamian civilization in Iraq, Incas in
Peru, Indus valley civilization has been attributed to deforestation of hill slopes, induced
fires, and felling of trees on a large scale. This resulted in soil erosion, floods and silting of
irrigation canals and cultivated lands, which in turn resulted in famines, death and desertion
of villages.

The impact of man’s activities on the environment has resulted in the pollution of
environment. Pollution not only affects the air, water and lands but also the organisms in the
biosphere.

The natural ecosystem has an inherent capacity to decompose dead organisms or excreta
and recycle them. When harmful substances contaminate the environment in large quantities,
the ecosystem is unable to absorb them and they accumulate in the system resulting in the
degradation of environment.

AIR POLLUTION:

FOSSIL FUELS:

The burning of fossil fuels in large quantities during the recent decades has resulted in
gradual increase in carbon dioxide content in the atmosphere. Increase of carbon dioxide in
the atmosphere has the effect of increasing the temperature of atmosphere. Increase in carbon
dioxide content is also due to the large-scale deforestation. Reduction in the number of trees,
which absorbs carbon dioxide, resulted in the accumulation of carbon dioxide in the
atmosphere.

GREENHOUSE EFFECT:

In the normal circumstances, much of the solar radiation that penetrates the earth’s
atmosphere is re-radiated as heat from the earth’s surface and dissipates into space. But an
increase of carbon dioxide, though it allows most solar radiation to penetrate the atmosphere,
prevents part of the heat re-radiated by the land and water bodies from escaping into space.

As carbon dioxide accumulates, enough heat may be trapped to gradually warm the
atmosphere. This is called the Greenhouse effect.

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 If the content of carbon dioxide increases further in the next 50 years, rise in air
temperature would certainly melt the polar ice caps and consequently sea level would rise by
about 2.5 meters causing submergence of coastal regions.

ACID RAINS:

Burning of coal and oil also adds sulphur dioxide to the atmosphere. The auto mobile
exhaust contributes to the addition of lead, carbon monoxides and nitrogen oxides in the
atmosphere.

These gases not only causes nasal irritation and respiratory diseases to the inhales but
also causes acid rains which damages the plants, metals buildings apart from aquatic
ecosystems which support various life forms.

Acid rain also damages forests to a great extent. It affects the growth of the trees.

OZONE LAYER:

The ozone layer in the stratosphere serves as a protective shield, which protects the earth
from harmful ultraviolet radiation. When this ozone layer gets depleted ultra violet radiation
enters the earth’s surface and causes skin cancer. The ozone layer gets affected by exhausts
form the jet aircraft and also by the use of CFC (Chloro Fluoro Carbon) in aerosol
propellants in sprayers, refrigerators etc.

SMOG:

Gaseous effluents from factories pollute the atmosphere. Smoke, dust and particles of
carbon, lead, etc., gets accumulated in the atmosphere. On cool nights, when fog occurs,
these particles remain suspended in the air. This condition is called Smog.

The Smog over London in 1952 resulted in the about 4000 persons by suffocation.

In Tamil Nadu, because of burning of used tyres of motor vehicles of on Bhogi Day, the
smog over Chennai and other parts of Tamil Nadu causes annoyance and a lot of
inconvenience to the people.

WATER POLLUTION:

INDUSTRIAL EFFLUNTS:

The major cause of water pollution is the letting out of untreated industrial effluents into
rivers and open spaces around industries. For example, leather tanneries, paper mills, sugar
mills, dye industries and many other industries let out their effluents into the adjacent rivers
or allow them to stagnate on land.

These effluents seep through and pollute the ground water. Effluents from large number
of tanneries in Ambur and Vaniyambadi in Vellore District in Tamil Nadu is a standing

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example, which have polluted the ground water in and around these places thereby making
the residents of these places suffer without eater for drinking and other domestic purposes.

DOMESTIC SEWAGE:

Another important widespread source of water pollution is the disposal of untreated/half-

treated domestic sewage in to the eater bodies by the local bodies. Community wastes from
human settlements account for 4 times as much waste water as industrial effluents.

Out of 3119 towns and cities only 217 have partial (209) or full (8) sewerage and sewage
treatment facilities.

Many rivers in India are polluted by sewage disposal and the same rivers provide
domestic water supply as well. Polluted river water affects organic life in rivers and water
borne diseases like jaundice, dysentery and typhoid affect human population.

According to one estimate 2/3rd of all illnesses in India are related to water borne
diseases such as typhoid, jaundice, cholera, diarrhea and dysentery.

Water pollution also occurs owing to use of pesticides and fertilizers for agriculture.
Water draining from the fields enters rivers and lakes and pollutes them.

Enrichment of water by nutrients such as phosporous and nitrates results in excessive

growth of algae till the surface of the water body is choked preventing oxygen from entering.
This process is referred to as alga bloom.

When the algae die they also consumed by the anaerobes. The anaerobes consume waste
by extracting hydrogen. The hydrogen combines with sulphur from the waste to produce the
foul smelling hydrogen sulphide gas. The water becomes turbid and sunlight cannot penetrate
the surface.

The algae in the absence of sunlight begin to die and so do the fish. The river becomes
smelly and sluggish and devoid of life. This whole process is called Eutrophication of a
water body.

SEAWATER POLLUTION:

Seawater gets polluted by discharge of domestic sewage from cities located along the
coast and effluents from factories along the coast and also by discharge from polluted rivers.
Eutrophication of coastal marshes and swamps also affects marine life. Oil spills from tankers
in the ocean has an adverse impact over the marine ecosystem.

GROUND WATER POLLUTION:

Ground water pollution occurs when raw sewage is released in shallow soak pits or
pollutants form seepage pits, refuse pits, septic tanks and barnyards and percolate through
layers of earth into ground water. In industrial areas the indiscriminate release of toxic
industrial wastes such as arsenic, lead, cadmium and mercury compounds on land results in

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waste water trickling down into the ground water pollution due to intrusion of seawater is
occurring.

Once ground water is polluted it cannot be treated. The damage done is irreparable. The
effects of pollution may continue for indefinite periods.

SOIL EROSION & LAND DEGRADTION:

There are many factors, which are responsible for land degradation. Soil erosion is the
most serious cause of land degradation. Soil erosion here refers to all physical processes that
loosen or tear-off soil particles and displaces the detached particles from the parent sites.

The most common factor causing soil erosion is the destruction of forests and other
natural vegetation.

Grazing of land by goats and other domestic animals may also remove the plant cover.
When the cover of vegetation is removed, the soil layer is exposed to the direct impact of
rainfall and surface water flowing down the slope of the land.

Soil particles get denuded rapidly on steep slopes by formation of gullies or ravines.

This is called gully erosion. In course if time gullies become wider and deeper and develop a
network of branches. A region dissected by a large number of gullies is called badlands, as
such land cannot be put to any use.

On gentle slopes, water flows as a thin sheet, and fine particles of soil are removed from
the entire surface. This is called sheet erosion.

DOMPING OF SOLID WASTE:

Dumping of solid waste also causes Land degradation. Dumping of solid waste from
urban centers and waste materials form mining centers and industrial wastes render the land
unsuitable for any purpose.

The story of behind Indian Council for Enviro-Legal Action -vs- Union of India, AIR
1996 SC 1446. is all about dumping of toxic wastes generated from chemical industries in
Bichiri village of Udaipur District in Rajasthan.

The Sludge deposited in areas adjoining those industries in the village percolated into the
earth, making the soil reddish and ground water highly polluted.

The well water in those areas became dark in color and turned unfit for any purpose.
Moreover, it very seriously affected the productivity of the land. Surface run-off from such
areas pollutes the streams and ground water by seepage.

DEFORESTATION:

Forests are among the most basic life support systems of our planet. Forests have played
a very vital role in maintaining a balanced ecological system. Forests assist in the essential
global recycling of water, oxygen, carbon dioxide and nitrogen. They also influence solar

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radiation reaching the earth’s surface, wind, humidity and temperatures, and thus moderate
the climate especially the rainfall.

They support an extremely rich bio diversity, which provides a wide variety of products
and services. Their role in soil formation and conservation is extremely crucial.

Thus forest performs protective, regulative and productive functions as described below:

1. Protective Function:

(a) Control of floods;

(b) Prevention of soil erosion and increasing soil fertility;

(c) Protection of wildlife against extreme cold and dry winds;

(d) Protecting from adverse effects of solar radiation;

(e) Providing goods biological gene pool.

2. Regulative Functions:

(a) Amelioration of climate ;

(b) Regulation of temperature, increase local precipitation and regulation of humidity ;

(c) Balancing carbon dioxide and oxygen of the atmosphere.

3. Productive Function:

(a) Providing fodder for livestock ;

(b) Providing fuel and timber for the people

(c) Producing raw materials for industries, sports, transport etc.,

(d) Providing essential oils, medicines, materials for house building and many minor
forests produces.

Thus, forests are the source of revenue, fodder, fruit, employment and home for
Millions, besides manure and fuel, raw materials and minor products and medicinal herbs.
They also attract foreign tourists.

Production of oxygen, providing leaf protein, preventing soil and wind erosion,
maintaining soil fertility, recycling of water and humidity control, providing shelter to birds,
insects and plants and controlling air pollution are some of the invisible environmental
services rendered by forests.

Around 3000 BC, nearly 80% of the Indian landmass was covered with forests. During
the Mughal period many forest areas were converted into agricultural land.

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 This increased during the British period followed by exploitation of forests for timber and
fuel. At the time of independence nearly 25% of the land was under forest cover.

According to the latest official sources the actual land under forest cover only 19% of the
total geographic area out of which forest cover of good quality is only 8%.

HUMAN IMPACT ON BIOSPHERE:

Man is at the top ecological pyramid. He acts as a predator as he is an omnivore, feeding

on a variety of plants and animals. Cultivation of land has had a serious impact on the
ecosystem.

The removal of original plant cover and its replacement by single cultivated crop reduced
the biological diversity and simplifies the ecosystem making it vulnerable to pests and
diseases which attack that particular crop.

Increasing population and human activities have destroyed the habitats of certain animals
and birds or reduced the area of their habitats.

While a number of species have become extinct, others are threatened with extinction.
Pollution of environment, hunting of animals and birds and introduction of new predators in
the environment has also caused extinction of some species.

DEPLETION OF NATURAL RESOURCES:

The steady growth in population and the increasing due to change in lifestyle has
contributed towards depletion on natural resources. Due to the pressure of the population,
forest and soil resources are getting depleted at a very high rate. Excessive demand leads to
consumption of resources at a rate faster than necessary. This situation makes the renewable
resources like forests and soil, non-renewable.

The situation is same even with respect to non-renewable mineral resources. Due to the
increasing demand, mineral resources are being consumed at a faster rate.

Likewise the world is also facing an energy crisis due to the depletion of oil resources.
The existing oil resources may last only for a few decades. There is an urgent need for use of
renewable sources of energy.

NOISE POLLUTION:

Due to heavy industrialization, people are exposed to high levels of noise. Noise has
become a very important stress factor of modern life.

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 Some of the important sources of noise pollution are automobiles, aircraft, factories, use
of loudspeakers, etc.

Noise as a potent menace can be evaluated in terms of a noise level scale, or in decibels
(dB).

However, the health hazard is a matter of perceived noise level decibels (pNdB), which
according to the WHO’s prescribed optimum noise level is 45 dB by day and 35 by night.

Any source of producing sound levels of more than 80-90 dB for more than eight
hours is harmful to ears. Hertz or Hz denotes frequency of sound. Human ear can hear
frequencies between 20-20000 Hz.

The frequencies below 20 Hz and frequencies above 20000 Hz are inaudible. The effect
of noise on health depends on quality, duration and sensitivity of individual.

A WHO (World Health Organization) report warns that daily exposure to a noise levels
of 75 dB can cause health problems like lack of concentration, loss of sleep, headache,
irritation, hypertension and fatigue.

People exposed to noise levels reaching 110 dB may reveal mental trauma, deafness,
physical fatigue and hypertension, cardiovascular diseases, insomnia, peptic ulcer, eczema
and asthma.

PROBLEMS RELATING TO URBANIZATION:

The Urban or manmade environment contributes to the excessive depletion of natural

resources. Population growth and migration from rural areas to cities have led to a haphazard
and unplanned expansion of our cities.

Unable to meet the staggering demand for basic civic amenities, our cities have become
teeming hovels of dust, diseases and crime.

The problems of the urban poor are lack of access to clean drinking water, sanitation and
adequate housing, exposure to industrial wastes and urban air pollution.

Sewage and industrial effluents are released into the nearest waterways with minimal or
no treatment, threatening human health and aquatic life.

Landfills and garbage dumps are overflowing in most cities.

Since the waste generated contains greater quantities of non-biodegradable and

hazardous material, it is difficult to destroy and the solid waste when set on fire emits
dangerous fumes compounding air pollution problems.

The disposal of Bio-Medicals Wastes is also not properly done in most of the urban
centers resulting in serious health problems. It is roughly estimated that the Indian cities and
towns generate about 60,000 tons of municipal wastes every day and almost all the wastes
find their way to landfill sites which are seldom managed in an environmentally-acceptable
manner.

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CONCLUSION:

We have started realizing that our economic activates are threatening our survival on the
earth. We have started realizing that our existence is possible only when they can live in
harmony with the various elements of the environment, which are interconnected.

We have started realizing that awareness of the problems faced by the environment
would enable us to take appropriate decisions to make the earth habitable for future
generation.

On this regard, degradation means damage or reduction in quality of environmental

features, primarily influenced by human activities.

Some natural events such as landslides and earth quake may also degrade the nature of
our environments.

Continued environmental degradation can completely destroy the various aspects of the
environment such as biodiversity, ecosystems, natural resources and habitats.

For instance, air pollution can lead to the formation of acid rain which can in turn reduce
the quality of natural water systems by making them acidic.

This is a typical example of environmental degradation.

Environmental degradation is therefore a concept that touches on a variety of topics

namely deforestation, biodiversity loss, desertification, global warming, animal extinction,
pollution, and many more.

Causes of Environmental Degradation:

1. Overpopulation and Over-exploitation of Resources:

As the human population keeps on enlarging, there is a lots of pressure on the utilization
of natural resources. This often causes over-exploitation of the natural resources, and
contributes to environmental erosion.

According to a study by the UNEP Global Environment Outlook, excessive human

consumption of the naturally occurring non-renewable resources can outstrip available
resources in the near future and remarkably destroys the environment during extraction and
utilization.

Overpopulation simply means more pollution and fast extraction of natural resources
compared to how they are being replaced.

2. Ruinous Agricultural Practices:

Intensive agricultural practices have led to the decline in quality of most of our natural
environments. Majority of farmers resort to converting forests and grasslands to croplands
which reduce the quality of natural forests and vegetation cover.

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 The pressure to convert lands into resource areas for producing priced foods, crops, and
livestock rearing has increasingly led to the depreciation of natural environments such as
forests, wildlife and fertile lands.

Intensive agricultural practices destroy fertile lands and nearby vegetation cover due to
the accumulation of toxic substances like bad minerals and heavy metals which destroy the
soil’s biological and chemical activities.

Runoffs of agricultural wastes and chemical fertilizers and pesticides into marine and
freshwater environments have also deteriorated the quality of wild life habitats, natural water
resources, wetlands and aquatic life.

3. Landfills:

One of the calamitous effects of landfills is the destruction of nearby environmental

health together with its ecosystems. The landfills discharge various kinds of chemicals on the
land adjacent to forest, various natural habitats, and water systems such as underground and
surface water which makes the environment unappealing to the survival of trees, vegetations,
animal and humans.

It even interferes with the animals interactive food chains because the chemicals
contaminate plants, and waters which are consumed by the animals.

Besides the foul smell from the landfills and periodic burning of the wastes make living
in such environments unbearable.

4. Increase in Deforestation:

The act of deforestation (cutting down of trees) has impacted on the world in terms of
depreciating the natural environment and wildlife.

UNIT – IV
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 Policies of the state for abatement of Pollution and for conservation.

“An effective strategy for tackling the problems of poverty, development and
environment simultaneously should being by focusing on resources, production and
people and should cover demographic issues, enhanced health care and education, the
rights of women, the role of youth and of indigenous people and local communities
and a democratic participation process in association with improved governance.”

- Report of the UNCED, 1992

The Government of India has taken systematic and sustained efforts to tackle major
environmental problems of this country. One of the efforts is to formulate comprehensive
‘policy framework’ to enable the government to have a holistic view of all environmental
issues and to formulate an ‘Environmental Plan’ for the country.

There have been several policy statements relating to conservation of water, forest,
marine resources and for abatement of pollution apart from the ‘environment component’ of
the policy documents relating to sectors like Housing, Land Use, Education, Industries and
Technology. Some such Policy Statements are:

1. Industrial Policy Statement (1980)

2. Technology Policy Statement (1983)

3. National Education Policy (1986)

4. National Land Use Policy Outline (1986)

5. National Water Policy (1987)

6. National Land Use Policy (1988)

7. National Housing Policy (1988)

8. National Forest Policy (1988)

9. Policy Statement for Abatement of Pollution (February 1992)

10. The National Conservation Strategy and the Policy Statement on Environment and
Development (June 1992)

11. Ocean Policy Statement

12. National Agriculture Policy (2000)

13. Wildlife Conservation Strategy (2002)

The formation of above policy statements has fulfilled a long-standing demand of

devising a clear and precise national policy on environmental protection and management.

Few of the policy directives are yet to be put into action fully to test its utility. However,
from academic point of the government for environmental protection, abatement of pollution

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and resource conservation. The relevant text of few very important policy statements are
given below:

NATIONAL WATER POLICY 1987:

Need for a National Water Policy:-

Water is a prime natural resource, a basic human need and a precious national asset.
Planning and development of water resources need to be governed by national perspectives.

It has been estimated that out of the total precipitation of around 400 million hectare
meters in the country, the surface water availability is about 178 million hectare meters. Out
of this about 50% can be put to beneficial use because of topographical and other constraints.

In addition there is a ground water potential of about 42 million hectare meters. The
availability of water is highly uneven in both space and time. Precipitation is confined to only
about three or four months in the year and varies from 10 cm in the western parts of
Rajasthan to over 1000 cm at Cherrapunji in Meghalaya.

Further, water does not respect state boundaries. Not merely rivers but even underground
aquifers often cut across state boundaries. Water as a resource is one and indivisible: rainfall,
river waters, surface ponds and lakes and ground water are all part of one system; water is a
part of a large ecological system.

Even the planning and implementation of individual irrigation or multi-purpose projects,

though done at the State level, involve a number of aspects and issues such as environmental
protection, rehabilitation of projects-affected people and livestock, public health
consequences of water impoundment, dam safety, etc. On these matters common approaches
and guidelines are necessary. Moreover, certain problems and weaknesses have affected a
large number of projects all over the country. There have been substantial time and cost
overruns on projects. In some irrigation commands, problems of water-logging and Soil
salinity have emerged, leading to the degradation of good agricultural land. There are also
complex problems of equity and social justice in regard to water distribution.

The development and exploitation of the country’s ground water resources also give rise
to questions of judicious and scientific resource management and conservation. All these
questions need to be tackled on the basis of common policies and strategies.

The growth process and the expansion of economic activities inevitably lead to increasing
demand for water for diverse purpose: domestic, industrial, agricultural, hydro-power,
navigation, recreation, etc. So far, the principal consumptive use of water has been for
irrigation. While the irrigation potential is estimated to have increased from 19.5 million
hectares at the time of Independence to about 68 million hectares at the end of the Sixth Plan,
further development of a substantial order is necessary if the food and fiber needs of a
growing population are to be met. The country’s population which is over 750 million at
present is expected to reach a level of around 1000 million by the turn of the century.

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 The production of food grains has increased from around 50 million tons in the fifties to
about 150 million tons at present, but this will have to be raised to around 240 million tons by
the year 2000 AD. The drinking water needs of people and livestock have also to be met. In
keeping with the objectives of the International Drinking Water Supply and Sanitation
Decade Programme (1981-1991), adequate drinking water facilities have to be provided to
the entire population in both urban and rural areas and sanitation facilities to 80% of the
urban population and 25% of the rural population by the end of the decade. Domestic and
industrial water needs have largely been concentrated in or near the principal cities, but the
demand from rural society is expected to increase sharply as the development programmes
improve economic condition in the rural areas. The demand for water for Hydro & Thermal
power generation and for other industrial uses is also likely to increase substantially. As a
result of which there will be a rise in demand for water which is already a scarce resource.
This underscores the need for the utmost efficiency in water utilization and a public
awareness of the importance of its conservation.

Another important aspect is water quality improvements in existing strategies and the
innovation of new techniques resting on a strong science and technology base will be needed
to eliminate the pollution of surface and ground water resources, to improve water quality
and to step up the recycling and re-use of water. Science and technology and training have
also important roles to play in water resources development in general.

Water is one of the most crucial element in developmental planning. As the country
prepares itself to enter the 21st century, efforts to develop, conserve, utilize and manage this
important resource have to be guided by national perspectives. The need for a national water
policy is thus abundantly clear: water is a scare and precious national resource to be planned,
developed and conserved as such, and on an integrated and environmentally sound basis,
keeping in view the needs of the States concerned.

PROJECT PLANNING:-

Water resource development projects should as far as possible be planned and developed
as multipurpose projects. Provision for drinking water should be a primary consideration.

The projects should provide for irrigation, flood mitigation, hydro-electric power
generation, navigation, pisciculture and recreation wherever possible.

The study of the impact of a project during construction and later on human lives,
settlements, occupations, economic and other aspects should be an essential component of
project planning.

In the planning, implementation and operation of projects, the preservation of the quality
of environment and the ecological balance should be a primary consideration. The adverse
impact, if any, on the environment should be minimized and should be off-set by adequate
compensatory measures.

There should be an integrated and multi-disciplinary approach to the planning,

formulation, clearance and implementation of projects, including catchment treatment and

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management, environmental and ecological aspects, the rehabilitation of affected people and
command area development.

Special efforts should be made to investigate and formulate projects either in, or for the
benefit of, areas inhabited by tribal or other specially disadvantaged groups such as
Scheduled Castes and Scheduled Tribes. In other areas also, project planning should pay
special attention to the needs of Scheduled Castes and Scheduled Tribes and other weaker
sections of society.

The planning of projects in hilly areas should take into account the need to provide
assured drinking water, possibilities of hydro-power development and the proper approach to
irrigation in such areas, in the context of physical features and constraints such as steep
slopes, rapid run-off and the incidence of soil erosion. The economic evaluation of projects in
such areas should also take these factors into account.

Time and cost overruns and deficient realization of benefits characterizing most irrigation
projects should be overcame by upgrading the quality of project preparation and
management.

The under-funding of projects should be obviated by an optimal allocation of resources,

having regard to the early completion of on-going projects as well as the need to reduce
regional imbalances.

MAINTENANCE AND MODERNISATION:-

Structures and systems created through massive investments should be properly

maintained in good health. Appropriate annual provisions should be made for this purpose in
the budgets.

There should be a regular monitoring of structures and systems and necessary

rehabilitation and modernization programmers should be undertaken.

SAFETY OF STRUCTURES:-

There should be proper organizational arrangements at the national and state levels for
ensuring the safety of storage dams and other water-related structures.

The central guidelines on the subject should be kept under constant review and
periodically updated and reformulated. There should be a system of continuous surveillance
and regular visits by experts.

GROUND WATER DEVELOPMENT:-

There should be a periodical reassessment on a scientific basis of the ground water

potential, taking into consideration the quality of the water available and economic viability.

Exploitation of ground water resources should be so regulated as not to exceed the

recharging possibilities, as also to ensure social equity. Ground water recharge projects
should be developed and implemented for augmenting the available supplies.

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 Integrated and coordinated development of surface water and ground water and their
conjunctive use should be envisaged right from the project planning stage and should form an
essential part of the project.

Over exploitation of ground water should be avoided near the coast to prevent ingress of
seawater into sweet water aquifers.

WATER ALLOCATION PRIORITIES:-

In the planning and operation of systems, water allocation priorities should be broadly as
follows:

1. Drinking water

2. Irrigation

3. Hydro-power

4. Navigation

5. Industrial and other uses.

However these priorities might be modified if necessary in particular regions with

reference to area specific considerations.

Drinking Water:

Adequate drinking water facilities should be provided to the entire population both in
urban and in rural areas by 1991. Irrigation and multipurpose projects should invariably
include a drinking water component, wherever there is no alternative source of drinking
water. Drinking water needs of human beings and animals should be the first charge on any
available water.

Irrigation:

Irrigation planning either in an individual project or in a basin as a whole should take

into account the irritability of land, cost-effective irrigation options possible from all
available sources of water and appropriate irrigation techniques.

The irrigation intensity should be such as to extend the benefits of irrigation to as large a
number of farm families as possible, keeping in view the need to maximize production.

There should be a close integration of water-use and land-policies.

Water allocation in an irrigation system should be done with due regard to equity and
social justice. Disparities in the availability of water between head-reach and tail end farms
and between large and small farms should be obviated by adoption of a rotational water
distribution system and supply of water on a volumetric basis subject to certain ceilings.

Concerted efforts should be made to ensure that the irrigation potential created is fully
utilized and the gap between the potential created and its utilization is removed. For this

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purpose, the command area development approach should be adopted in all irrigation
projects.

Water Quality:

Both surface water and ground water should be regularly monitored for quality. A phased
programme should be undertaken for improvements in water quality.

Water Zoning:

Economic development and activities including agricultural, industrial and urban

development, should be planned with due regard to the constraints imposed by the
configuration of water availability.

There should be water zoning of the country and the economic activities should be
guided and regulated in accordance with such zoning.

Conservation of Water:

The efficiency of utilization in all the diverse uses of water should be improved and an
awareness of water as a scare resource should be fostered.

Conservation consciousness should be promoted through education, regulation,

incentives and disincentives.

Flood Control and Management:-

There should be a master plan for flood control and management for each flood prone
basin. Sound watershed management through extensive soil conservation, catchment-area
treatment, preservation of forest and increasing the forest area and the construction of check-
dams should be promoted to reduce the intensity of floods. Adequate flood-cushion should be
provided in water storage projects wherever feasible to facilitate better flood management.

An extensive network for flood forecasting should be established for timely warning
to the settlements in the flood plains, along with the regulation of settlements and economic
activity in the flood plain zones, to minimize the loss of life and property on account of
floods. While physical flood protection works like embankments and dykes will continue to
be necessary, the emphasis should be on non-structural measures for the minimization of
losses, such as flood forecasting and warning and flood plain zoning, so as to reduce the
recurring expenditure on flood relief.

Land Erosion by Sea or River:-

The erosion of land, whether by the sea in coastal areas or by river waters inland, should
be minimized by suitable cost effective measures. The States and Union territories should
also undertake all requisite steps to ensure that indiscriminate occupation and exploitation of
coastal strips of land are discouraged and that the location of economic activities in areas
adjacent to sea is regulated.

Drought Management:-

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 Drought-prone areas should be made less vulnerable to drought-associated problems
through soil-moisture conservation measures, water harvesting practices, the minimization of
evaporation losses, the development of the ground water potential and the transfer of surface
water from surplus areas where feasible and appropriate.

Pastures, forestry or other modes of development which are relatively less water-
demanding should be encouraged. In planning water resource development projects, the
needs of drought-prone areas should be given priority.

Relief works undertaken for providing employment to drought-stricken populations

should preferably be for drought proofing.

Science and Technology:-

For effective and economical management of our water resources, the frontiers of
knowledge need to be pushed forward in several directions by intensifying research efforts in
various areas, including the following:

1. Hydro-meteorology; assessment of water resources;

2. Snow and lake hydrology;
3. Ground water hydrology and recharge; prevention of salinity ingress;
4. Water-harvesting; evaporation and seepage losses; economical designs for water
resource projects;
5. Crops and cropping systems;
6. Sedimentation of reservoirs;
7. The safety and longevity of water-related structures;
8. River morphology and hydraulics;
9. Soils and material research;
10. Better water management practices and improvements in operational technology;
11. Recycling and re-use; use of sea water resources.

NATIONAL FOREST POLICY, 1988:-

Preamble: - In Resolution dated 12th May 1952, the Government of India in the
erstwhile Ministry of Food and Agriculture enunciated a Forest Policy to be followed in the
management of state Forests in the country. However, over the years, forests in the country
have suffered serious depletion. This is attributed to relentless pressures arising from ever-
increasing demand for fuel-wood, fodder and timber, inadequacy protection measures;
diversion of forest lands to non-forest uses without ensuring compensatory afforestation and
essential environmental safeguard; and the tendency to look upon forests as revenue earning
resource.

Basic Objectives: The basic objective that should govern the National Forest Policy
are the following:-

1. Maintenance of environmental stability through preservation and where necessary,

restoration of the ecological balance that has been adversely disturbed by serious
depletion of the forests of the country.

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 2. Conserving the natural heritage of the country by preserving the remaining natural
forests with the vast variety of flora and fauna, which represent the remarkable
biological diversity and genetic resource of the country.
3. Checking; soil erosion and denudation in the catchment areas of rivers, lakes
reservoirs in the interest of soil and water conservation, for mitigating floods and
droughts and for the retardation of siltation of reservoirs.
4. Checking the extension of sand dunes in the desert areas of Rajasthan and along
the coastal tracts.
5. Increasing substantially the forest/tree cover in the country through massive
afforestation and forestry programmes, especially on all denuded degraded and
unproductive lands.
6. Meeting the requirements of fuel wood, fodder, minor forest produce and small
timber of the rural and tribal populations.
7. Increasing the productivity of forests to meet essential national needs.
8. Encouraging efficient utilization of forest produce and maximizing substitution of
wood.
9. Creating a massive people’s movement with the involvement of women, for
achieving these objectives and to minimize pressure on existing forests.
10. The principal aim of Forest Policy must be to ensure environmental stability and
maintenance of ecological balance including atmospheric equilibrium, which are
vital for sustenance of all life forms, human, animal and plant. The derivation of
direct economic benefit must be subordinated to this principal aim.

Essential of Forest Management:

1. Existing forests and forest lands should be fully protected and their productivity
improved. Forest and vegetable cover should be increased rapidly on hill slopes,
in catchment areas of rivers, lakes and reservoirs, and ocean shores and on semi-
arid, arid and desert tracts.
2. Diversion of good and productive agricultural land to forestry should be
discouraged in view of the need for increased food production.
3. For the conservation of total biological diversity, the network of national parks,
sanctuaries, biosphere reserves and other protected areas should be strengthened
and extended adequately.

4. Provision of sufficient fodder, fuel and pasture, especially in areas adjoining

forest, is necessary in order to prevent depletion of forests beyond the sustainable
limit. Since fuel-wood continues to be the predominant source of energy in rural
areas, the programme of afforestation should intensified with special emphasis on
augmenting fuel-wood production to meet the requirement of the rural people.

5. Minor forest produce provide sustenance to tribal population and to other

communities residing in and around the forests. Such produce should be protected,
improved and their production enhanced with due regard to generation of
employment.

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AREA UNDER FOREST:

The national goal is to have a minimum of one-third of the total land of the country under
forest or tree cover. In these hills and in mountainous regions, the aim should be to maintain
two-third of the area under such cover in order to prevent erosion and land degradation and to
ensure the stability of the fragile Eco-system.

Land Laws:

Land Laws should be so modified wherever necessary so as to facilitate and motivate

individuals and institutions to undertake tree-farming and grow fodder plants, grasses and
legumes on their own land.

Wherever possible, degraded lands should be made available for this purpose either on
lease of on the basis of a tree patta-scheme.

Such leasing of the land should be subject to the land grant rules and land ceiling laws.
Steps necessary to encourage them to do so must be taken.

Appropriate regulations should govern the felling of trees on private holding.

Management of State Forests:

Schemes and projects which interfere with forests that cloths steep slopes, catchments
of rivers, lakes, and reservoirs, geologically unstable terrain and such other ecologically
sensitive areas should be severely restricted. Tropical rain/moist forests, particularly in areas
alike Arunachal Pradesh, Kerala, Andaman and Nicobar Islands should be totally
safeguarded.

No forest should be permitted to be worked without the Government having approved

the management plan, which should be in a prescribed format and in keeping with the
National Forest Policy. The Central Government should issue necessary guidelines to the
State Government in this regard and monitor compliance.

RIGHTS AND CONCESSIONS:

The rights and concessions, grazing, should always remain related to the carrying
capacity of forests. The capacity itself should be optimized by increased investment,
silvicultural research and development of the area.

Stall-feeding of cattle should be encouraged.

The requirements of the community, which cannot be met by the rights and concessions
so determined, should be met by social forestry outside the reserved forests.

The life of tribal’s and other poor living within and near forests revolves around forests.
The rights and concessions enjoyed by them should be fully protected.

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 Their domestic requirements of fuel-wood, fodder, minor forest produce and construction
timber should be the first charge on forest produce. These and substitute materials should be
made available through conveniently located depots at reasonable prices.

Similar consideration should be given to scheduled castes and other poor living near
forest. However, the area, which such consideration should cover, would be determined by
the carrying capacity of the forests.

Wood is in short supply. The long-term solution for meeting the existing gap lies
increasing the productivity of forests but to relieve the existing pressure on forests for the
demands of railway sleepers, construction industry (particular in the public sector), furniture
and paneling, mine-pit props, paper and paper board etc.

Substitution of wood needs to be taken recourse to. Similarly; on the front of domestic
energy, fuel wood; needs to be substituted as far as practicable with alternate sources like
bio-gas, LPG and solar energy.

Fuel efficient chulhas as a measure of conservation of fuel wood need to be popularized

in rural areas.

WILDLIFE CONSERVATION:

Forest Management should take special care of the needs of wildlife conservation, and
forest, management plans should include prescriptions for this-purpose. It is especially
essential to provide for corridors linking the protected areas in order to maintain genetic
continuity wildlife.

DAMAGE TO FORESTS FROM ENCROACHMENT, FIRES AND GRAZING:

Encroachment on forestlands has been on the increase. This trend has to be arrested and
effective action taken to prevent its continuance. There should be no regularization of
existing encroachments.

The incidence of forest fires in the country is high. Standing trees and fodder are
destroyed on a large and natural regeneration annihilated by such fires. Special precaution
should be taken during the fire season. Improved and modern management practices should
be adopted to deal with forest fires.

GRAZING:

Grazing in forest areas should be regulated with the involvement of the community.
Special conservation areas, young plantation and regeneration areas should be fully protected.
Grazing and browsing in forest areas need to be controlled. Adequate grazing fees should be
levied to discourage people in forest areas from maintaining large herds if non-essential
livestock.

FOREST-BASED INDUSTRIES:

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 The main consideration governing the establishment of forest-based industries and supply
of raw material to them should be as follows:

1. As far as possible, a forest-based industry should raise the raw material needed for
meeting its own requirements, preferably by establishment of a direct relationship
between the factory and the individual who can grow the raw material by supporting
the individuals with inputs including credit, constant technical advice and finally
harvesting and transport services.

2. No forest-based enterprise except that at the village or cottage level, should be

permitted in the future unless it has been first cleared after a careful scrutiny with
regard to assured availability of raw material. In any case, the fuel fodder and timber
requirements of the local population should not be sacrificed for this purpose.

3. Forest-based industries must not only provide employment to local people on priority
but also involve them fully in raising trees and raw material.

FOREST EXTENSION:

Forest conservation programme cannot succeed without the willing support and
cooperation of the people. It is essential, therefore, to inculcate in the people, a direct interest
in forests, their development and conservation, and to make them conscious of the value of
trees, wildlife and nature in general.

FORESTRY EDUCATION:

Forestry should be recognized both as a scientific discipline as well as a profession.

Agricultural universities and institutions dedicated to the development of forestry education
should formulate curricula and courses for imparting academic education and promoting
post-graduate research and professional excellence, keeping in view the manpower needs of
the country.

Academic and professional qualification in forestry should be kept in view for

recruitment to the Indian Forest Services and the State Forest Service. Specialized and
orientation courses for developing better management skills by in service training need to be
encouraged, taking into account the latest development in forestry and related disciplines.

FOREST SURVEY AND DATA BASE:

Inadequacy of data regarding forest resources is a matter of concern because this creates
a false sense of complacency. Priority needs to be accorded to completing the survey of forest
resources in the country on scientific lines and to updating information.

For this purpose, periodical collection, compilation and publication of, reliable data on
relevant aspects of forest management needs to be improved with resource to modem
technology and equipment.

LEGAL SUPPORT AND INFRASTRUCTURE DEVELOPMENT:

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 Appropriate legislation should be undertaken, supported by adequate infrastructure, at the
Center and State levels in order to implement the policy effectively.

POLICY STATEMENT FOR ABATEMENT OF POLLUTION 1992:

PREAMBLE: The commitment of Government on abatement of pollution for

preventing deterioration of the environment is stated here. The policy elements seek to shift
emphasis from defining objectives for each problem area towards actual implementation, but
the focus is on the long term, because pollution particularly affects the poor.

The complexities are considerable given the number of industries, organizations and
government bodies involved. To achieve the objectives maximum use will be made of a mix
of instruments in the form of legislation and regulation, fiscal incentives, voluntary
agreements, educational programmes and information campaigns. The emphasis will be on
increased use of regulations and an increase in the development and application of financial
incentives.

FUTURE DIRECTION AND OBJECTIVES:

It is not enough for the Government to notify laws, which are to be complied with. A
positive attitude on the part of everyone in society is essential for the prevention of pollution
and wide consultation has been held with those who will ultimately implement the policy.

The objective is to integrate environmental considerations into decision making at all

levels. To achieve this, steps have to be taken to:

1. Prevent pollution at source;

2. Encourage, develop and apply the best available practicable technical solutions;

3. Ensure that the polluter pays for the pollution and control arrangements;

4. Focus protection on heavily polluted areas and river stretches; and

5. Involve the public in decision making.

THE NATIONAL CONSERVATION STRATEGY AND THE POLICY STATEMENT

ON ENVIRONMENT AND DEVELOPMENT:

CONSTRAINTS AND AGENDA FOR ACTION:

The modest gains made by the steps taken during the past few years leave no room for
complacency when viewed in the context of enormous challenges. We can meet the
challenges only by redirecting the thrust of our developmental process so that making
judicious and sustainable use of our natural resources fulfills the basic needs of our people.
Conservation, which covers a wide range of concerns and activities, is the key element of the
policy for sustainable development framing a conservation strategy is, therefore, an
imperative first step.

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 Development requires the use and modification of natural resources; conservation ensures
the sustainability of development for the present and in the future. The conservation strategy
is to serve as a management guide for integration environmental concerns with
developmental imperatives.

The agenda for action in this regard will include the following:

1. To ensure sustainable and equitable use of resources for meeting the basic needs of
the present and future generations without causing damage to the environment;

2. To prevent and control future deterioration in land, water and air which constitute
our life-support systems;

3. To take steps for restoration of ecologically degraded areas and for environmental
improvement in our rural and urban settlements;

4. To prevent further damage to and conserve natural and man-made heritage;

5. To ensure that development projects are correctly sited so as to minimize their

adverse environmental consequences;

6. To ensure that the environment and productivity of coastal areas and marine
ecosystems are protected;

7. To conserve and nurture the biological diversity, gene pool and other resources
through environmentally sustainable development and management of ecosystems,
with special emphasis on our mountain, marine and coastal, desert, wetlands, revering
and island ecosystems; and

8. To protect the scenic landscapes, area of geomorphological significance, unique

and representative biomes and ecosystems and wildlife habitats, heritage sites/
structures and areas of cultural heritage importance.

OCEAN POLICY STATEMENT:

The oceans are known to be our last frontiers. Our long coast and the sense of adventure
of our ancients fostered a great maritime tradition.

The Indian Ocean, which washes our shores, provides opportunities, which need to be
utilized. For success in ocean development, the entire nation should be permeated by the
spirit of enterprise and the desire to explore the frontiers of knowledge.

Our experience in other fields of scientific Endeavour will help our efforts in ocean
development.

What is necessary is a policy and structure to facilitate a dynamic thrust keeping in view
developments in other parts of the world.

WILDLIFE CONSERVATION STRATEGY 2002:

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 1. Wildlife and forest shall be declared priority sector at the national level for which
funds should be earmarked.

2. Law enforcement agencies must ensure that those engaged in poaching, illicit trade
in wildlife and wildlife products, destruction of their habitat, and such other illegal
activities are given quick and deterrent punishment.

3. While strengthening protective measures against traditional threats to wildlife, we

should also respond to newer threats such as toxic chemicals and pesticides.

4. There should be governmental as well as societal recognition and support for the
many non-governmental organizations engaged in wildlife conservation. Mainstream
media to better highlight their activities as also successes of governmental initiative
that have worked.

5. Creative produced Television Programs on wildlife and ecology are widely

appreciated by young and old as seen from the popularity of dedicated T.V. channels
like, Discovery, National Geographic and Animal Planet.

6. No diversion of forestland for non-forest purposes from critical and ecologically

fragile wildlife habitat shall be allowed.

7. Removal of encroachments and illegal activities from within forestlands and

Protected Areas.

8. No commercial monoculture to replace natural forests.

9. The settlement of rights in National Park and Sanctuaries should not be used to
exclude or reduce the areas that are crucial and integral part of the wildlife habitat.

10. Every protected area should be managed by forest officers trained in wildlife
management.

NATIONAL ENVIRONMENT POLICY 2004:

The Ministry of Environment and Forests, Government of India has published the Draft
National environment Policy, in which the Government emphasized the need for a
comprehensive policy, statement in order to infuse a common approach to the various
sectoral, cross-sectoral, including fiscal, approaches to environmental management.

The principal objectives of NEP 2004 are:

1. To protect and conserve critical ecological systems and resources, and invaluable
natural and man – made heritage which are essential for life support, livelihoods, economic
growth, and a broad conception of human well-being;

2. To ensure equitable access to environmental resources and quality for all sections of
society, and in particular, to ensure that poor communities, which are most dependent on
environmental resources for their livelihoods, are assured secure access to these resources;

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 3. To ensure judicious use of environmental resources to meet the needs and aspirations
of present and future generations;

4. To integrate environmental concerns into policies plans, programs and projects for
economic and social development;

5. To ensure efficient use of environmental resources in the sense of reduction in their

use per unit of economic output, to minimize adverse environmental impacts;

6. To apply the principles of good governance (transparency, rationality, accountability,

reduction in time and costs, and participation) to the management and regulation of use of
environmental resources;

7. To ensure higher resource flows, comprising finance, technology, management skills,

traditional knowledge and social capital, for environmental conservation through mutually
beneficial multi stakeholder partnerships between local communities, public agencies and
investors.

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 UNIT – V

CONSTITUTIONAL OBLIGATION TO PROTECT THE NATURAL

ENVIRONMENT

INTRODUCTION:

The Constitution of India, which is the supreme law of the land, has imposed an
obligation to protect the natural environment both on the State as well as the Citizens of
India.

Part IV of the Constitution called the Directive Principles of State Policy has imposed
certain fundamental duties on the State to protect the environment.

Part IV A of the Constitution has imposed a fundamental duty on every citizen of India
“to protect and improve the natural environment including forest, lakes, rivers, and wildlife,
and to have compassion for living creatures”.

OBLIGATIONS ON THE STATE:

Article 39 (b) of the Constitution of India provide that the State shall direct its policy to
see “that the ownership and control of the material resources of the community are so
distributed as best to sub serve the common good”. The term ‘material resources of the
community’ embraces all things, which are capable of producing wealth for the community.
The expressions ‘material resources of the community have been held to include such
resources in the hands of the private persons and not only those, which have already vested in
the State.

The Constitution of India through Article 42 has directed the State to endeavor to secure
just and human conditions of work.

Under Article 47 it imposes a duty upon the State to raise the level of nutrition and the
standard of living of its people and improve public health.

The Supreme Court in Municipal Council, Ratlam vs. Vardhichand AIR 1980 SC1622
observed, “The State will realize that Article 47 makes it a paramount principle of
governance that steps are taken for the improvement of public health as amongst its primary
duties.

Article 48 directs the State to take to organize agricultural and animal husbandry on
modern and scientific lines. In particular, it is directed to take steps for preserving and
improving the breeds and prohibiting the slaughter of cows, calves and other milch and
draught cattle.

Of all articles, Article 48A which was added to the Constitution by the Constitution of
India 42nd Amendment Act in the year 1976, expressly directs the State “to protect and
improve the environment and to safeguard forest and wild-life”.

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 The Madras High Court in M.K. Janardhanam vs. District Collector, Tiruvallur
observed that “the phrase used (in Articles 48A and 51A) is ‘protect and improve’ which
implies that the phrase appears to contemplate affirmative governmental action to improve
the quality of the environment and not just to preserve the environment in its degraded form.”

The State is also required under Article 49 “to protect every monument or place or object
of artistic or historic interest (declared by or under law made by Parliament), to be of national
importance from spoliation, disfigurement, destruction, removal, disposal or export.”

Article 51 provide that the State should strive to “foster respect for international law and
treaty obligations”.

Most important of all article is Article 37 which declares that the directive principles
contained in Part IV of the Constitution are “fundamental in the governance of the country
and it shall be the duty of the State to apply these principles in making laws.”

In all the above articles, the expression ‘state’ is used and one should understand the
meaning of the word ‘state’. The framers of the Constitution of India chose to adopt the same
definition for the word ‘state’ as defined in Article 12 for the purpose of Part IV of the
Constitution as well. This was done to enable the judiciary to interpret it so widely to bring
all agencies and instrumentality of the State under the scope of the word ‘State’.

The object was to direct all such agencies and instrumentality of the State to apply the
directive principles in making laws.

The Supreme Court in M.C. Mehta vs. Union of India (2002) 4 SCC 356 held that
“these directive principles (Articles 39 (b), 47 and 48A) individually and collectively impose
a duty on the State to create conditions to improve the general health level in the country, and
to protect and improve the natural environment.

The Word State as defined in Article 12 and as interpreted by the Supreme Court through
various cases decided by it means and includes:

(1) the executive and the legislature of the Union,

(2) the executive and the legislature of the State,

(3) the judiciary (A.R. Antulay vs. R.S. Nayak, AIR 1988 SC 1531.

(4) local authorities like Municipalities, District Boards, Panchayats, Townships,

Corporations, Improvement Trusts, etc., and

(5) other authorities which are agencies or instrumentality of the State.

The Legislature, both the Union and the State, to fulfill their fundamental obligations
contained in the Constitution, have enacted a number if legislation to protect and improve the
natural environment and to safeguard forests and wild life.

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 The Executive, both the Union and the State, to fulfill their constitutional obligations,
have made sufficient number of rules to effectively implement the laws made by the
legislatures to protect and improve the natural environment and to safeguard forests and
wildlife.

The Judiciary, to fulfill its Constitutional Obligation as and is always prepared to issue
‘appropriate’ orders, directions and writs against those persons who cause environmental
pollution and ecological imbalance. This is evident from a plethora of cases decided by it
starting from the Ratlam Municipality v. Vardhicand, (AIR 1980 SC 1622) Case.
Vardhichand provoked the consciousness of the Judiciary to a problem, which had not
attracted that much attention. The Supreme Court responded with equal anxiety and raised the
issue to come within the mandate of the Constitution. In this case, the question related to the
court’s power to force public bodies under public duties to implement specific plan in
response to public grievances, which related to environmental pollution.

The Supreme Court in Rural litigation and Entitlement Kendra vs. State of U.P.
(1985) 2 SCC 431 ordered the closure of certain lime stone quarries causing large scale
pollution and adversely affecting the safety and health of the people living in the area.

Likewise, the Supreme Court in M.C. Mehta vs. Union of India (1986) 2 SCC 176
directed an industry manufacturing hazardous and lethal chemicals and gases posing danger
to health and life of workmen and people living in its neighborhood, to take all necessary
safety measures before reopening the plant.

In yet another case filed by M.C. Mehta it ordered the closure of all tanneries, which
were found to be polluting the river Ganga (M.C. Mehta vs. Union of India (1987) 4 SCC
463).

The Supreme Court on another occasion (M.C. Mehta vs. Union of India (1988) 1 SCC
471) directed the Mahapalika to get the dairies shifted to a place outside the city and arrange
for removal of wastes accumulated at the dairies so that it may not reach the river Ganga. In
the same case, it also directed the Mahapalika:-

1. to lay sewerage line wherever it was not constructed,

2. to construct public latrines and urinals for the use of poor people free of charge,

3. to ensure that dead bodies or half burnt bodies are not thrown into the river Ganga and

4. to take action against the industries responsible for pollution.

In the Delhi industries pollution case (M.C. Mehta vs. Union of India (1996) 4 SCC
750), the Supreme Court ordered for the shifting of 168 hazardous industries operating in
Delhi as they were causing danger to the ecology.

In S. Jagannath vs. Union of India (1997) SCC 811 the Supreme Court has held that
setting up of shrimp culture farms within the prohibited areas and in ecologically fragile
coastal areas have adverse effect on the environment, coastal ecology and economics and
hence, they cannot be permitted to operate.

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 The Supreme Court in A.P. Pollution Control Board II vs. M.V. Nayude 2000, case
No 673. Referred to the Resolution of the UNO passed during the United Nations Water
Conference 1977 to which India is a party and observed that “the right to access to drinking
water is fundamental to life and there is a duty on the State under Article 21 to provide clean
drinking water to its citizens”.

To “All people, whatever their stage of development and their social and economic
conditions, have the right to have access to drinking water in quantum and of a quality equal
to their basic needs”.

What is stated above is only a very small portion of the contributions made by the
Judiciary to protect and improve the environment and to safeguard forests and wildlife.

OBLIGATIION ON THE PART OF CITIZENS:

The constitution under part IV A, Article 51 A (g) has declared that it shall be the
fundamental duty of a citizen of India “to protect and improve the natural Environment
including forests, lakes, rivers, and wildlife and to have compassion for living creatures”.

Article 51 A(j) has imposed on citizens another fundamental duty “to strive towards
excellence in all spheres of individual and collective activity so that the nation constantly
rises to higher levels of endeavor and achievement”.

The Rajasthan High Court in Vijay Singh Puniya vs. State of Rajasthan AIR 2004 Raj
1 observed that “any person who disturbs the ecological balance or degrades, pollutes and
tinkers with the gifts of the nature such as air, water, river, sea and other elements, of the
nature, he not only violates the fundamental right guaranteed under Article 21 of the
Constitution but also breaches the fundamental duty to protect the environment under Article
51A(g).

This observation was made in a writ petition filed against dyeing and printing units,
which were discharging effluents and polluting the water sources used for agricultural and
drinking purposes.

In M.K. Janardhanam v. District Collector, Thiruvallur, (2003 LW 262) the Madras

High Court appreciated the petitioner for the efforts taken by him. “Under Article 51 A(g) it
is the fundamental duty of every one of the citizens of this country to protect and improve the
natural environment including forests, lakes, rivers, all other water resources and wild life
and to have compassion for living creatures. The petitioner should be complimented for
discharging his personal safety the unimaginable aggression on natural resources by
unscrupulous element.

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 UNIT – VI

RIGHT TO LIVE IN A HEALTHY ENVIRONMENT – EVOLUTION AND

PRINCIPLES / DOCTRINES PROPOUNDED BY THE JUDICIARY

EVOLUTION OF THE FUNDAMENTAL RIGHT TO LIVE IN A HEALTHY

ENVIRONMENT IN INDIA:

In India the higher Judiciary has interpreted the existing constitutional provision viz., “the
right to life” guaranteed in Article 21 to mean and include the right to live in a healthy
environment.

The courts have intervened by writs, orders and directions in appropriate cases and
recognized the constitutional right to a healthy environment.

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 The Supreme Court of India while deciding that certain limestone quarries in the Doon
Valley should be closed down to soil erosion, deforestation and river silting, declared for the
first time in Rural Litigation and Entitlement Kendra vs. State of UP AIR 1985 SC 652
that the right of people to live in a healthy environment with minimal disturbance to
ecological balance shall be safeguarded.

Though the Supreme Court of India did not clearly and explicitly recognize the right to
healthy environment, it has indirectly approved in many M.C. Mehta cases.

In the first M.C. Mehta case, (AIR 1987 SC 985) which was filed against the alleged
leakage of oleum gas from a factory by a public-spirited, environment conscious law- yer, the
Supreme Court found that the case raised ‘some seminal questions concerning the scope and
ambit of Articles 21 and 32 of the Constitution.

By making such a comment, the Court was manifestly referring to the concept of right to
life in Article 21 and the process of vindication of that right in Article 32.

The second M.C. Mehta case (AIR 1987 SC 982) was relating to the modification of
some of the conditions which laid down by the Supreme Court in the first M.C. Mehta case
for the restarting of the industries, which were earlier ordered to be closed.

The third M.C. Mehta case (AIR 1987 SC 1086) was filed to determine the amount of
compensation payable to the victims affected by the leakage of oleum gas from a factory.

This case is considered to be one of the land mark case as it evolved a new jurisprudence
of liability to the victims of pollution caused by an industry engaged in hazardous and
inherently dangerous activity. Even in this case the court did not specifically declare the
existence of the right to a clean and healthy environment under Article 21.

The fourth M.C. Mehta case (AIR 1988 SC 1037) was filed against the leather
tanneries, which were polluting the holy river Ganga by letting the effluents into the river. In
this case the Court held that the pollution of river Ganga is affecting the life and health of the
people and also the ecology of the Indo-Gangetic plain.

In this case the Court issued directions to the tanneries to set up effluent treatment plants
within 6 months, failing which, the Court held that the tanneries would be closed.

It concluded that although the closure of tanneries might result in unemployment and loss of
revenue, life, health and ecology and greater importance.

The fifth M.C. Mehta Case (AIR 1988 SC 1115) was filed against the failure of the
Kanpur Nagar Mahapalika to fulfill its statutory duties which caused after in the river Ganga
at Kanpur becoming so much polluted that it can no longer be used by the people either for
drinking or for bathing.

In this case, the Court directed the Mahapalika to get the dairies shifted to a place outside
the city, to lay sewerage line where the same is not constructed as also to increase the size of
the existing sewers in labour colonies, to construct public latrines and urinals for use of poor
people free of charge, to ensure with the help of police that dead bodies or half-burnt bodies

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are not thrown into the Ganga and to take action against the industries responsible for the
pollution.

The above directions were also extended mutatis mutandis to all other Mahapalikas and
Municipalities which have jurisdiction over the areas through which the river Ganga flows.

The Supreme Court in neither of these cases declared explicitly that the right to a clean
and healthy environment is contained in the compendium of unremunerated rights under
Article 21.

However, since the Court issued directions in all the above cases under Article 32 of the
Constitution it is evident that the Court has used Article 32, which is a provision to enforce
fundamental rights for the purpose of protecting the lives of the people, their health and
ecology.

THE DECLARATION OF RIGHT TO A CLEAN AND HEALTHY ENVIRONMENT

BY HIGH COURTS:

Though the Supreme Court was reluctant for a short period to declare explicitly that the
‘right to life’ under Article 21 included the ‘right to a clean and healthy environment’, the
High Courts in the country enthusiastically declared that the right to a clean and healthy
environment is an integrate part of the right to life.

THE SUPREME COURT AND THE RIGHT TO CLEAN AND HEALTHY

ENVIRONMENT:

In Subhash Kumar vs. State of Bihar (AIR 1991 SC 420) the Supreme Court observed
that “the right to life enshrined in Article 21, includes the right to enjoyment of pollution free
water and air for the full enjoyment of life. If anything endanger or impairs the quality of life,
an affected person or a person genuinely interested in the protection of society would have
recourse to Article 32”.

This case was public interest litigation filed against pollution of the Bokaro River by the
sludge/slurry discharged from the washeries if the Tata Iron and Steel Company Ltd. It was
alleged that the release of effluent into the river results in making the water unfit for drinking
purposes and for irrigation.

In Vellore Citizens Welfare Forum vs. Union of India (AIR 1996 SC 2715) the
Supreme Court has observed that “ The Constitutional and statutory provisions protect a
person’s right to fresh air, clean water and pollution free environment, but the source of the
right is the inalienable common law right of clean environment… Our legal system having
been founded on the British Common Law, the right of a person to pollution free
environment is a part of the basic jurisprudence of the land”. This PIL was directed against
the pollution which is being caused by enormous discharge of untreated effluent by the
tanneries into agricultural fields, road sides, water ways, open land finally discharged into
river Palar.

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 In Narmada Bachao Andolan vs. Union of India (AIR 2000 SC ) the Supreme Court
of India declared that “water is the basic need for the survival of human beings and is part of
right to life and human rights as enshrined in Article 21 of the Constitution of India… It is a
mater of great concern that even after half a century of freedom, water is not available to all
citizens even for their basic drinking necessity violating human right resolution of UNO and
Article 21 of the Constitution of India”.

This case was filed by an NGO against the environment clearance given by the
Government for contraction of the Sardar Sarovar Dam across the Narmada River.

EVOLUTION OF PRINCIPLES AND DOCTRINES FOR PROTECTION OF

ENVIRONMENT:

The Indian Judiciary to develop an indigenous jurisprudence and to formulate new

strategies for enforcing the right to life and awarding compensation in an ‘appropriate’ case.

Chief Justice BHAGWTI in M.C. Mehta vs. Union of India (AIR 1987 SC 1086 and
1089) declared in unambiguous terms that “we have to evolve new principles and lay down
new norms, which would adequately deal with the new problems which arise in a highly
industrialized economy.

The formulation of new principles and pronouncement of new doctrines ‘as part of the
law of this country’ for protection of environment is a remarkable achievement of the Indian
Judiciary. Some such principles and doctrines propounded by the Indian Judiciary are:

 1. Principle of Absolute Liability

 2. Polluter Pays Principle

 3. Public Trust Doctrine

 4. Doctrine of Sustainable Development

 5. Doctrine of Inter-generational Equity.

Principle of absolute liability:-

The Supreme Court of India formulated the doctrine of absolute liability for harm caused
by hazardous and inherently dangerous industry by interpreting the scope of the power under
Article 32 of the Constitution of India to issue directions are orders, ‘whichever may be
appropriate’ in ‘appropriate proceedings’.

Absolute liability for the harm caused by industry engaged in hazardous and inherently
dangerous activities is a newly formulated doctrine free from the exceptions to the strict
liability rule of the Common Law principle of England. This rule was evolved in M.C. Mehta
vs. Union of India AIR 1987 SC 1089, which is popularly known as the ‘oleum gas leak
case’.

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Precautionary Principle:

Before 1972 at the international level, it was the concept of ‘assimilative capacity’ which
was in operation.

According to this concept, the environment, having assimilative process, absorbs itself the
shock of pollution, but beyond a certain limit the pollution may cause damage to the
environment requiring efforts to repair it.

Thus, according to the assimilative capacity theory, the role of law will begin only when
the limit is crossed. But pollution cannot wait for action to be postponed for investigation of
its quality, concentration and boundaries. So there was a shift from the principle of
‘assimilative capacity’ to the ‘precautionary principle’.

Principle 15 of the Rio declaration proclaims that “in order to protect the environment
the precautionary approach shall be widely applied by States according to their capabilities.
Where there are threats of serious or irreversible damage, lack of full scientific certainty shall
not be used as a reason for postponing cost effective measures to prevent environmental
degradation”.

The Supreme Court of India in Vellore Citizens Welfare Forum vs. Union of India has
declared that the ‘precautionary principle’ is an essential feature of sustainable
development. The Supreme Court has also supplied meaning to the precautionary principle in
the context of the Municipal law. According to which the precautionary principle means:

(i) Environmental measures – by the State Government and the statutory authorities –
must anticipate, prevent and attack the causes of environmental degradation.

(ii) Where there are threats of serious and irreversible damage, lack of scientific certainty
should not be used as a reason for postponing measures to prevent environmental
degradation.

(iii) The “onus of proof” is on the actor or the developer/industrialist to show that his
action is environmentally benign.

Polluter Pay Principle:

It is now recognized that pollution is a form of waste and a symptom of inefficiency in

industrial production. Hence it was just and necessary to device various kinds of measures to
prevent and minimize industrial pollution.

The World Commission on Environment and Development (WCED)in its report has
suggested that the environment cost of economic activity shall be internalized by the
enterprises.

Principle 16 of the Rio Declaration proclaims that “national authorities should

endeavour to promote the internalization of environmental costs and the use of economic
instruments, taking into account the approach that the polluter should, in principle, bear the

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cost of pollution with due regard to the public interest and without distorting international
trade and investment”.

Polluter Pays Principle (PPP) which was originally considered as an economic and
administrative measure to restrain and control the pollution problem has recently been
recognized as a powerful legal tool to combat environment pollution and associated
problems.

The Supreme Court of India in M.C. Mehta vs. Union of India AIR 1987 SC 1086 has
impliedly applied the polluter pays principle to deal with the problem caused by the oleum
gas leakage from the Shriram Food and Fertilizer Corporation.

Public Trust Doctrine:

The Supreme Court’s decision in M.C. Mehta vs. Kamalnath 1997 SCC 388 is an
excellent exposition of the Doctrine of Public Trust.

A news items appeared in India Express stating that a private company Span Motels Pvt
Ltd. In which the family of Kamal Nath (a former Minister for Environment and Forests)
had duct link, had built a club at the bank of river Beas by encroaching land including
substantial forest land which was later regularized and leased out to the company when
Kamal Nath was the Minister. It was stated that the Motel used earthmovers and bulldozers to
turn the course of the river Beas.

The effort on the part of the Motel was ti create a new channel by diverting the river-flow.
According to the news item three private companies were engaged to reclaim huge tracts of
land around the Motel. The main allegation in the news items was that the course of the river
was being diverted to save the Motel from future floods. The Supreme Court took notice of
the news item because the facts disclosed therein, if true, were be a serious act of
environmental degradation on the part of the Motel.

In this case the Supreme Court applied the Doctrine of Public Trust for protection of the
environment. Justice KULDIP SINGH has exhaustively gathered information on this Public
Trust Doctrine from various juristic writings and decisions of the American Courts.

The Supreme Court in M.C. Mehta vs. Kamalnath (1997) I SCC 388 observed, “our
legal system based on English Common Law includes the public trust doctrine as part of its
jurisprudence.

The State is the trustee of all natural resources, which are by nature meant for public use
and enjoyment. Public at large is the beneficiary of the seashore, running waters, airs, forests

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and ecologically fragile lands. The State as a trustee is under a legal duty to protect the
natural resources. These resources meant for public use cannot be converted into private
ownership.”

Doctrine of Sustainable Development:

The World Commission on Environment and Development (WCED) in its report

popularly known as the Brundtland Report, named after the Chairman of the commission Ms.
G.H. Brundtland, Prime Minister of Norway, has defined the concept ‘Sustainable
Development’. According to the Brundtland Report, Sustainable Development means
“development that meets the needs of the present without compromising the ability of the
future generations to meet their own needs”.

Rural Litigation and Entitlement Kendra vs. State of U.P. AIR 1985 SC 652
(popularly known as Doon Valley case) was the first case in India involving issues relating
to environment and development. The decision of the court in this case reaffirmed and
reiterated that development is not antithetical to environment. The court observed that “we
are not oblivious of the fact that natural resources have got to be tapped for the purposes of
the social development but one cannot forget at the same time that tapping of resources
have to be done with the requisite attention and care so that ecology and environment may
not be affected in any serious way, there may not be depletion of water resources and long
term planning must be undertaken to keep up the national wealth. It is always to be
remembered that these are permanent assets of mankind and or not intended to be exhausted
in one generation”.

Doctrine of Inter – generational Equity:

The tragedy of the predicament of the civilized man is that every source from which man
has power on earth has been used to diminish the prospects of his successors. All his progress
is being made at the expense of damage to the environment, which he cannot repair and
cannot foresee. “Rivers, forests, minerals and such other resources constitute a nation’s
natural wealth.

These resources are not to be frittered away and exhausted by any one generation. Every
generation owes a duty to all succeeding generations to develop and conserve the natural
resources of the nation in the best possible way. It is in the interest of mankind. It is in the
interest of the nation,” opined the Supreme Court in State of Tamil Nadu vs. Hind Stone
(AIR 1981 SC 711). The idea behind this doctrine is that “every generation should leave
water, air, and soil resources as pure and unpolluted as and it come to earth. Each generation
should leave undiminished all the species of minerals it found existing on earth”.

Principle 1 of the Stockholm Declaration on Human Environment (1972) declares that

“Man has the fundamental right to freedom, equality and adequate conditions of life, in an
environment of quality that permits a life of dignity and well-being, and he bears a solemn
responsibility to protect and improve the environment for the present and future
generations…”

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 Principle 2 of the Stockholm Declaration on Human Environment points out that “the
natural resources of the earth including the air, water, land, flora and fauna and especially
representative samples of natural ecosystems must be safeguarded for the benefit of present
and future generations through careful planning or management, as appropriate.”

UNIT – VII

HISTORY OF EVOLUTION OF LAW TO HANDLE POLLUTION AND OTHER

ENVIRONMENTAL PROBLEMS IN INDIA

HISTORY OF ENVIRONMENTAL PROTECTION IN INDIA:

The history of the evolution of law to handle pollution and other environmental problems
in India can be studied under four periods;

1. In Ancient India;

2. In Medieval India;

3. During the British period; and

4. The post Independence period.

ENVIRONMENTAL PROTECTION IN ANCIENT INDIA:

Forest, Wild life, and more particularly trees were in high esteem and held a place of
special reverence in Hindu theology. The Vedas, Puranas, Upanishands and other scriptures
of the Hindu religion gave a detailed description of trees, plants and wild life and their
importance to the people.

The Rig Veda highlighted the potentialities of nature in controlling the climate,
increasing Fertility and improvement of human life emphasizing for intimate kinship with
nature.

Atharvana Veda considered trees as abode of various gods and goddesses.

Yajur Veda emphasized that the relationship with nature and animals should not be that
of dominion and subjugation but of mutual respect and kindness.

During the Vedic period, cutting of live trees was prohibited and punishment was
prescribed for such acts. For example Yajnavalkya Smriti, has declared cutting of trees and
forest as a punishable offence and has also prescribed a penalty of 20 to 80 pana.

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 The Hindu society was thus conscious of adverse environmental effects caused by
deforestation and extinction of animals species.

In Srimad Bhagavatam, it has been rightly pointed out that a man who with exclusive
devotion offers respect to sky, water, earth, heavenly bodies, living beings, trees, rivers, and
seas and all created beings and considers them as a part of the body of the Lord attains the
state of supreme peace and God’s grace.

Yajnavalkya Smriti and Charak Samhita gave many instructions for water for maintaining
its purity.

The Mauryan period was perhaps the most glorious chapter of the Indian History from
environmental protection point of view. It was in this period that we find detailed and
perceptive legal provisions fond in Kautalya’s Arthashastra written between 321 B.C. and
300 B.C.

The necessity of forest administration was realized in this period and the process of
administration was actually put into action with the appointment of superintendent of forest
and the classification of forest on a fictional basis. The State assumed the functions of
maintenance of forest, regulation of forest produce and protection of wild life during
Mauryan reign.

Under the Arthashastra various punishments were prescribed for cutting trees, damaging
forest, and for killing animals, fish, deers, etc. For cutting the tender sprouts of trees in city
parks that bore flowers or fruits or yielded shade, the fine was 6 panas, for cutting small
branches 12 panas and for cutting stout branches 24 panas.

Arthashastra also prescribed punishment for causing pollution and uncivic sanitation. It
provided that the officer in charge should punish those who threw waste on the roads by 1/8th
pana, for causing muddy water 1/4th pana and if both acts were committed, the punishment
should be double. If faecal mater is thrown or caused to be piled up near temple, well or
pond, sacred place or state building, then the punishment was to increase gradually by one
pana in each case.

For urinating in such places the punishment prescribed was half of the above
punishments.

The environment conservation, as it existed during Mauryan period continued more or

less unaltered in subsequent reigns until the end of Gupta empire in 673 A.D. prohibitions for
forest destruction and animal killings were announced by other Hindu Kings.

For example, the King Ashoka, in Pillar edict had expressed his viewpoint about the
welfare of creature in his state. He prescribed various pecuniary punishments for killing
animals, which included even ants, squirrels, parrots, red headed ducks, pigeons, lizards and
rats as well.

To sum up, ancient India had a philosophy of environmental management principally

enshrined in old injunctions as they were contained in many scriptures and smrities. Abuse

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and exploitations of nature for immediate gains wad considered unjust, irreligious and against
environmental ethics under the Hindu culture.

The environmental ethics of nature conservation were not only applicable to common
man but also the rulers and they also bound kings. Despite the injunctions in the scriptures
and preaching of saints, resources consecration was not taken very seriously as the natural
resources under a common belief were considered to be inexhaustible and too formidable for
man and his tools to need any protection themselves.

ENVIRONMENTAL PROTECTION IN MEDIEVAL INDIA:

From the point of view of environment conservation, a significant contribution of Moghul

emperors has been the establishment of gardens, fruit orchards and green parks, round about
their palaces, central and provincial headquarters, public places, on the banks of the rivers
and in the valley and dales which they used as holiday resorts or places of retreat or
temporary headquarters during the summer season.

Among the officials empowered for administration of justice by the Sultans and the
emperors of India. ‘Muhtasibs’ (censor) were vested with the duty of prevention of pollution.
His main duty among others was to remove obstructions from the streets and to stop the
commission of nuisance in public places. The instructions given to a newly appointed
Muhtasib by the emperor Aurangazeb throws a flood of light on the functions of this officer:

In the bazaars and lanes observe if anyone, contrary to the regulations and customs, has
screened off (abru) a part of the street, or closed the path or thrown dirt and sweepings on the
road, or if anyone has seized the portion of the bazaar area reserved for public traffic and
opened his shops there; you should in such cases urge them to remove the violation of
regulations.”

There is opinion that “the Moghul emperors, through were great lovers of nature and
took delight in spending their spare time in the lap of natural environment, made no attempts
on forest conservation”.

ENVIRONMENTAL PROTECTION DURING THE BRITISH RULL IN INDIA:

The early days of British rule in India were days of plunder of natural resources. There
was a total indifference to the needs of forest conservancy. They caused“fierce onslaught” on
India’s forests. The onslaught on forest was primarily due to the increasing demands for
military purpose, for British navy, for local construction (such as roads and railways), supply
of teak and sandalwood for export trade and extension of agriculture in order to augment
revenue.

The British Government started exercising control forests in the year 1806 when a
commission was appointed to enquire into the availability of teak in Malabar and Travancore
by way of appointment of Conservator of Forests.

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 This move failed to conserve forests as the appointed conservator plundered the forest
wealth instead of conserving it. Consequently, the post of conservator of forest was abolished
in the year 1823.

The second half of the 19th century marked the beginning of an organized forest
management in India with some administrative steps taken to conserve forest; the formulation
of forest policy and the legislations to implement the policy decisions. The systematic
management of forest resources began with the appointment of first Inspector General of
Forest in 1864. The immediate task of exploration of resources, demarcation of reserves,
protection of forest from fire and assessment of the growing stock in valuable reserve by
sample enumeration and prescription of yields which could be sustained.

The objective of management of forests thus changed from obtaining them as a

biological growing entity.

The first step of the British Government to assess state monopoly right over the forest
was the enactment the Forest Act, 1865. The Act was revised in 1878 and extended to most
of the territories under the British rule. It also expanded the powers of the State by providing
for reserved forest, which was closed to the people and by empowering the forest
administration to impose penalties for any transgression of the provision of the Act.

The British Government declared its first Forest Policy by a resolution on the 19th
October 1884. The policy statement had the following objectives:

1. Promoting the general well being of the people in the country;

2. Preserving climatic and physical conditions in the country;

3. Fulfilling the need of the people.

The policy also suggested a rough functional classification of forest into the
following four categories:

1. Forest, the preservation of which was essential on climatic or physical grounds;

2. Forest which offered a supply of valuable timber for commercial purposes;

3. Minor forests which produced only the inferior sorts of timber; and

4. Pastures which were forests only in name.

To implement the Forest Policy of 1884, the Forest Act of 1927 was enacted. This Act
was very comprehensive and contained all the major provisions of the earlier Act and the
Amendments made thereto including those relating to the duty on timber. The Act of 1927
also embodied land use policy whereby the British could acquire all forestland, village forest
and other Common Property resources. This Act is still in force, together with several
amendments made by the State Governments.

Till 1935, the Government of India enacted the Forest Acts. In 1935 the British
Parliament, through the Government of India Act 1935 created provincial legislatures and the

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subject of the forest was included in the provincial legislative list. Thereafter, several
provinces made their own laws to regulate forests.

Most of these laws were within the framework laid down in the 1927 Act.

Apart from the management of forest resources the British Government also concentrated
on certain other areas like water pollution, air pollution, wild life and land use by enacting
numerous legislations.

The Shore Nuisance (Bombay and Kolaba) Act of 1853, Oriental Gas Company Act,
1857, the Indian Penal Code, 1860, the Indian Easement Act of 1862, the Indian Fisheries
Act, 1897 were some of the important legislations made by the British Government.

These legislations contained provisions for the regulation of water provision and also
prescribed punishments for the violation of these legislations.

The British Government for controlling Air Pollution enacted the Bengal Smoke
Nuisance Act of 1905, and the Bombay Smoke Nuisance Act of 1912.

Likewise, for protection of wildlife the British Government made certain legislations. In
1873, the then Madras Government enacted the first wild life statute for the protection of wild
elephants.

The Elephants Preservation Act of 1879, the Wild Birds and Animals Protection Act,
1912 and the Forest Act 1927 were other legislations which aimed at conservation of bio-
diversity.

ENVIRONMENTAL PROTECTION DURING THE POST INDEPENDENCE ERA:

The post independence era witnessed a lot of changes in the policies and attitudes of the
Governments with respect to environmental protection. The Constitution of India, which
came into force on 26th January 1950, had few provisions regarding environmental
management.

Article 39(b) provides that “the State shall direct its policy towards securing that the
ownership and control of the material resources of the community are so distributed as best to
sub serve the common good”.

Article 47 provides that “the State shall regard the rising of the level of nutrition and the
standard of living its people and the improvement of public health as among its primary
duties.

Article 48 directs that “the State shall Endeavour to organize agricultural and animal
husbandry on modern and scientific lines and take steps for preserving and improving the
breeds and prohibiting the slaughter of cows and calves and other milch and draught cattle.

Article 49 directs that “it shall be the obligation of the State to protect every monument
or place or object of artistic or historic interest, declared to be of national importance, form
spoliation, disfigurement, destruction, removal, and disposal or export as the case may be”.

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 In 1950, the country adopted a National Festival of planting trees (Van Mahotsava) with
the object of creating mass awareness about the value of forests in human well-being.

In 1952, the National Forest policy was formulated for the purpose of proper
management of forests of the country and to maximize the benefits of forests, both direct and
indirect.

The Pitambar Pant Committee on Human Environment was set up to prepare a report on
the state of environment for presentation at the United Nations Conference on Human
Environment held at Stockholm in 1972. The reports of this Committee formed the basis
upon which India’s policy concern on environment was presented at the Stockholm
Conference.

The year 1972 is a landmark in the history of Environmental Management in India. It was
the year in which the United Nations Conference on Human Environment was held at
Stockholm.

The views expressed at the Stockholm Conference formed a core part of the basic
environment philosophy of India that found expression in various governmental policy
pronouncements in subsequent years.

In 1972, the Wild Life (Protection) Act was enacted for the purpose of protection of
‘wild animals, birds and plants’. This Act was made to prevent hunting and also to control
trade in wild life products.

In 1973, a centrally sponsored scheme “project Tiger” was launched to ensure the
maintenance of the pollution of tigers in India. During the sixth and seventh Five Year Plans,
Government of India launched a number of centrally sponsored schemes to supplement the
State Governments’ programmes for Wild Life Conservation.

Under the “Project Tiger Scheme” the number of Tiger Reserves rose from 9 at the
beginning of the project in 1973 to 21 covering over 28,017 sq.kms. Forest area of the
country by the end of Eighties.

The preparation of a Tiger Action Plan and formulation of a Global Tiger Forum (GTF)
have been initiated recently. India has been elected as the chairperson for the first meeting of
the GTF.

In 1974, the Water (Prevention and Control of Pollution) Act was passed for the purpose
of prevention and control of water pollution and for maintaining and restoring the
wholesomeness of water. The Act also provides for the creation of Pollution Control Boards.

In 1975, the Water (Prevention and control of Pollution) Rules, was made in exercise of
the powers conferred by Section 63 of the Water Act, 1974.

In April 1981, the National Committee on Environment Planning was constituted for the
purpose of preparing an annual ‘State of Environment’ Report. The eighties witnessed the
creation of many eco-specific organizations like –

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 1. National Eco Development Board;

2. Botanical Survey of India;

3. Zoological Survey of India;

4. National Museum of Natural History;

5. National Ambient Air quality Monitoring Agency;

6. National Remote Sensing Agency;

7. Center for Earth and Science Studies;

8. Environmental Information System(ENVIS);

9. Eco Development Task Force of Ex-Servicemen;

10. Indian National Man and Bio-sphere Committee;

11. Environmental Research Committee;

12. Integrated Action-oriented Eco Development Research Programme;

13. Centre of Excellence for Environment Education;

14. National Environment Advisory Committee

15. National Wasteland Development Board;

16. National Afforestation and Eco Development Board

17. Global Environment Monitoring System (GEMS);

18. Monitoring of Indian National Aquatic Resources (MINARS).

In the year 1980, the Forest (Conservation) Act was made for the conservation of forests
and to check further deforestation. This Act imposes restriction on the derreservation of
forests or the use of forestland for non-forest purposes.

In 1981, the Air (Prevention and Control of Pollution) Act was enacted to provide for the
prevention, control and abatement of air pollution and for the establishment of Central and
State Pollution Control Boards. This Act was amended in 1987 to include noise pollution.

In 1988, the ‘National Forest Policy’ was formulated with the principle aim of ensuring
environmental stability and maintenance of ecological balance.

In 1989, the Hazardous Wastes (Management and Handling) Rules, Manufacture, storage
and import of hazardous chemicals Rules were made by the Central Government in exercise
of the powers conferred on it by the Environment (Protection) Act.

In 1991-92, ‘The Project Elephant’ was launched aiming at ensuring long term survival
of identified viable population of elephants and tackling the problematic elephant populations

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causing serious depredation. A steering committee on the Project Elephant was constituted in
October 1992 which keeps a watch on the implementation of this Project.

In February 1992, the Ministry of Environment and Forests released the ‘policy
Statement for Abatement of Pollution’ through which the Government declared its
commitment for abatement of pollution for prevention deterioration of the environment. The
chief objective of the policy statement “is to integrate environmental considerations into
decision making at all levels”.

In 1996, the Chemical Accidents (Emergency Planning, preparedness and response)

Rules was made by the Central Government in exercise of the powers conferred by the
Environment (Protection) Act, 1986.

In the year 1998, the Bio-medical wastes (Management and Handling) Rules was made
by the Central Government in exercise of the powers conferred on it by the Environment
(Protection) Act, 1986.

In 1999, the Central Government, in exercise of the powers conferred by the Environment
(Protection) Act, 1986 has made the ‘Recycled Plastics (Manufacture and Usage) Rules,
1999’ and ‘Environment (Sitting for industrial projects) Rules, 1999’.

In the year 2000, the Central Government by virtue of powers conferred on it by the
Environment (Protection) Act, 1986, made the following rules:

1. The Noise Pollution (Regulation and Control) Rules, 2000;

2. Ozone Depleting Substances (Regulation and Control) Rules, 2000; and

3. The Municipal Solid Wastes (Management and Handling) Rules, 2000.

4. Batteries (Management and Handling) Rules, 2001

Apart from the above eco-specific legislations, realizing that there is no comprehensive
legislation dealing with bio-diversity in India, and to fulfill its international obligation under
the Conversation on Bio-Diversity (CBD), the Government of India has enacted the
Biological Diversity Act 2002. This Act aims at:

1. Prohibiting transfer of Indian genetic material outside the country, without approval of
the Indian Government;

2. Stipulating that patents or other intellectual property rights (IPR) over such material,
or over related knowledge, can only be taken after seeking permission in advance;

3. Providing for the levying of appropriate fees and royalties on such transfers and IPRs;

4. Regulating access to such material by Indian nationals also, to stop over-exploitation;

5. Providing for the sharing of benefits of various kinds, including transfer of technology,
monetary returns, joint R&D, venture capital funds, and joint IPR ownership;

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 6. Providing measures for habitat and species protection. EIAs of projects which could
harm bio-diversity, intention of bio-diversity into all sectoral plans, programmes and policies;

7. Giving local communities a say in the use of resources and knowledge within their
jurisdiction and to charge fees from parties who want to use these resources and knowledge;

8. Providing for the protection of indigenous knowledge, through appropriate legislation

or administrative steps such as registration at local, State and national levels;

9. Stipulating that risks associated with the use of genetically modified organisms, will be
controlled through appropriate means; and

10. Providing for the designation of institutions as repositories of biological resources.

UNIT – VIII

REMEDIES FOR ENVIRONMENTAL POLLUTION AVAILABLE UNDER

COMMON LAW AND STATUTE LAW

Modern environmental law has its roots in the Common Law principles of nuisance.
The substantive law for the protection of the citizen’s environment is basically that of
Common Law relating to nuisance. In fact, the remedies under the law of tort to abate
environmental pollution are the oldest legal remedy. Nuisance created by environmental
pollution can also be controlled and regulated under the statutory provisions of Indian Penal
Code and Criminal Procedure Code. Even under Civil Procedure Code, there is a provision to
control public nuisance.

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ENVIRONMENTAL PROBLEMS – TORT LAW REMEDIES:

Common Law, a derivative if Latin expression ‘Lex Communis’ refers to a body of

customary law of England, which is based upon judicial decision. The Common Law, though
has its origin in England, continues to be in force in India as per article 372 of the
Constitution in so far as it is not altered, repealed or amended by Competent Legislature or
other Competent Authority.

The Common Law remedies for environmental problems are available under Law of
Torts. The Law of Torts is fashioned as “an instrument for making people adhere to standards
of reasonable behavior and respect the rights and interests of one another”. Thus it does by
protecting interests and by providing for situations when a person whose protected interest is
violated can recover compensation for the loss suffered by him from the person who has
violated the same. By “interest” here is meant “a claim, want or desire of human beings seeks
to satisfy, and of which, therefore, the ordering of human relations in civilized society must
take account”. Therefore, to constitute a tort or civil injury;

1. There must be a wrongful act committed by a person;

2. The wrongful act must give rise to legal damage or actual damage; and

3. The wrongful act must be of such a nature as to give rise to a legal remedy in the form
of an action for damages.

Tortious liabilities for environment pollution are available under the following heads:-

1. Negligence;

2. Nuisance;

3. Trespass.

NEGLIGENCE:

Negligence according to Winfield “is the breach of legal duty to take care which results
in damage, undesired by the defendant to the plaintiff”. The definition involves three
constituents of negligence:

1. A legal duty to exercise due care on the part of the party complained of towards the
party complaining the former’s conduct;

2. Breach of the said duty; and

3. Consequential damage.

The cardinal principle of liability is that the party complained of should owe to the party
complaining a duty to take care, and that the party complaining should be able to prove that

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he has suffered damage in consequence of a breach of that duty. The existence of a duty
situation or a duty to take care is thus essential to hold a person liable for negligence.

The facts in Naresh Dutt Tyagi vs. State of U.P. 1995 (3) SCC 144 are a classic
example of cases of negligence in India. In this case, chemical pesticides were stored
negligently in a godown in a residential area. Fumes emanating from the pesticides leaked
through the ventilators and caused the death of three children and an infant in the womb of
the mother who were living in an adjacent property. The Court held that this is a clear case of
negligence and awarded appropriate relief to the victims.

THE RULE IN M.C. MEHTA VS. UNION OF INDIA (AIR 1987 SC 965) (ABSOLUTE
LIABLITY):

The Supreme Court of India in M.C. Mehta vs. Union of India has laid down a more
stringent rule laid down by the English Courts in Rylands vs. Fletcher. The case relates to
the harm caused by the escape of Oleum gas from one of the units of Shriram foods and
fertilizer industries. The Supreme Court held that the rule laid down in Rylands vs. Fletcher
was more than a century old and it could not address the current problems fully.

This is because, now the society has become a modern industrialized society with highly
development scientific knowledge and technology where hazardous or inherently dangerous
activities are necessarily to be carried out as part of the development activities. In this context
the Court held that it was necessary to laid down a new rule not yet recognized by English
Law to adequately deal with the problems arising in a highly industrialized economy.

NUISANCE:

The word ‘Nuisance’ is derived from the French word ‘nuire’ which means “to do hurt or
to annoy”. Blackstone describes Nuisance as something that “worketh hurt, inconvenience or
damage”.

Nuisance is two kinds:

1. Public, general or common and

2. Private

PUBLIC OR COMMON NUISANCE:

Public Nuisance is an act affecting the public at large or considerable portion of it;
and it must interfere with rights which members of the community might otherwise enjoy.
Acts, which seriously interfere with the health, safety, comfort or convenience of the public

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generally, which tend to degrade public morals have always been considered as public
nuisance.

The basis of the law of nuisance is the maxim sic utere tuo ut alienisms non laedas: which
means that ‘a man must not make such use of his property as unreasonably and unnecessarily
to cause inconvenience to his neighbor’.

PRIVATE NUISANCE:

‘Private nuisance’ is the using or authorizing the use of one’s property or occupier of
property by physically injuring his property or by interfering materially with his health,
comfort or convenience. Winfield has defined Private Nuisance as “unlawful interference
with a person’s use or enjoyment of land or some right over or in connection with it.

Private Nuisance include acts leading to_

1. Wrongful disturbances of easements or servitude, e.g. obstruction to light and air,

disturbance of right to support;

2. Wrongful escape of deleterious substances into another’s property, such as smoke,

smell, fumes, gas, noise, water, filth, heat, electricity, disease causing germs, trees,
vegetation, animals etc.,

Private nuisance is in the nature of injuries to property whether to easements such as the
obstruction of light or of rights of way, or of the diversion of water course, or the withdrawal
of support from a house; or in other kinds of property as by noise, noxious vapours, smoke
and things of that type.

In Dr. Ram Raj Singh vs. Babulal (AIR 1982 All 285) an action was brought by a
medical practitioner against the erection of a brick grinding machine stating that the dust
generated by the brick-grinding machine polluted the atmosphere and also entered the
consulting chamber of the medical practitioner causing inconvenience to him and his patients.
The Court granted a permanent injunction against the defendant restraining him from running
his brick-grinding machine there.

REMEDIES FOR PUBLIC NUISANCE UNCDER CIVIL PROCEDURE CODE:

Section 91 of the Code of Civil Procedure lays down the procedure for claiming remedies
for Public Nuisance and other wrongful acts affecting the public.

Section 91 provides that “In the case of a public nuisance or other wrongful act affecting,
or likely to affect, the public, a suit for a declaration and injunction or for such other relief as
may be appropriate in the circumstances of the case, may be instituted, by the Advocate
General or with the leave of court, by two or more persons, even though no special damage
has been caused to such persons by reason of such nuisance or other wrongful act.”

The powers conferred by Section 91 on the Advocate General may be exercised outside
the Presidency Towns, by the Collector or by such officer as the State Government may
appoint in this behalf.

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 In order to attract Section 91, proof of obstruction to public road is not enough it should
also be proved that the obstruction caused constitutes a public nuisance.

The wrongful act conceived of in section 91 can be assumed to included ‘wrongful

omissions’ as well. Opening a burial and burning ground near residential house, slaughtering
cattle in Public Street, obstruction to and encroachment upon public highway, are some of the
instances of public nuisances.

TRESPASS:

‘Trespass’ in its widest sense means any transgression or offence against the law of
nature, of society, or of the country, whether relating to a man’s person or to his property.

To constitute the wrong of trespass, neither force nor unlawful intention, nor actual
damage, nor the breaking of an enclosure is necessary. Trespass may be committed

(1) by entering upon the land of the plaintiff or

(2) by remaining there, or

(3) by doing an act affecting the sole possession of the plaintiff, in each case without
justification.

WRONGS TO EASEMENTS AND SIMILAR RIGHTS:

An easement is a right, which the owner of a property has to compel the owner of another
property to permit something to be done, or to refrain from doing something on the servient
tenement for the benefit of the dominant tenement, e.g. right to light, a right of way.

Every land owner has certain ‘natural rights’ attached to the land, as rights of property
not requiring any acquisition, e.g. right of support for land, right to water etc.

The important natural rights and easements, the invasion of which is treated as wrong are:

1. right to support

2. riparian rights in natural water courses and streams

3. right to artificial water courses

4. right to surface water

5. right to sub-terranean water

6. right against pollution of water

7. right to access of air

8. right to access of light

9. right to way

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 10. right of privacy and confidentiality

11. right of prospect

12. right to take something off the land of another person (profits a prendre)

13. right to common (right of pasture, right of fishery etc.)

14. right of ferry

15. right of market.

RIGHT TO LIGHT AND AIR:

Right to light may be acquired by grant or prescription. When such right to light is
acquired, a substantial interference with it is an actionable nuisance. According to Lord
Lindley in Colls v. Home and Colonial Stores Ltd., any obstruction cased to right of light is
actionable. The right of light to a building across another’s land may be acquired either by
grant, express or implied, or by prescription over twenty years. “An owner of ancient lights is
entitled to sufficient light, according to the ordinary notions of mankind, for the comfortable
use and enjoyment of his house as a dwelling house, if it is a dwelling house or for the
beneficial use and occupation of the house, if it is a warehouse, a shop or other place of
business”. The test of the right is the effect of the obstruction on the comfortable and
convenient occupation of the property for ordinary purposes as judge by the standard of
ordinary people.

In India, the right to light and air may be acquired by an easement. The mode of
acquiring the right to light and air and the period of enjoyment required for acquiring the
right to light and air are prescribed in the Limitation Act, 1963 and Indian Easements Act,
1882.

RIGHT TO WATER:

There is natural easement vested in every owner of land on the banks of a natural stream
entitling him to the continued flow of that stream in its natural condition. An actionable
interference with this easement may take place in three different forms:

1. Abstraction – taking water out of the stream so as to reduce the amount or level of the
water;
2. Pollution – harmful alteration of the natural quality of the water;
3. Obstruction – erection of some barrier causing hindrance to the flow of that stream.

However, the English Courts have held that there is no action for interference with
underground water. For example, in Chasemor v. Richards, the defendants sank a well at a
distance of quarter of a mile away from a natural stream and pumped up water for the supply
of a neighboring town and although the effect was to diminish materially the volume of water
in the stream by intercepting its underground sources of supply it was held that riparian
owner had no cause of action. Similarly in Acton v. Blundell, where the mining operations of

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the defendant had the effect of drying up the plaintiff’s well, this was held to be merely
damunum sine injuria.

Where underground water runs in a defined and known channel, as in the case of those
streams which for part of their course run beneath the ground, it is subject to the same rules
as those which protect a natural stream upon the surface. Thus it is actionable to abstract
water from a spring, which directly feeds a natural stream, even though the spring is tapped
beneath the surface and the water is abstracted before it has become part of the visible stream.

Now the legal regime in India relating to right to underground water is facing enormous
change with various States like Tamil Nadu, Andhra Pradesh, Gujarat, Karnataka, etc.
enacting specific legislations to protect and conserve underground water. Therefore the
opinion of the English Courts in Chasemore v. Richards and Acton v. Blundell stands
modified in India accordingly.

In M.P. Rambabu v. The District Forest Officer, AIR 2002 A.P, the Andhra Pradesh High
Court held that ‘Deep Underground Water’ is the property of the State under the doctrine of
Public Trust. The holder of land has only a user right towards the drawing of water in tube
wells. Thus, neither his actions nor his activity in any way can harm his neighbors. A person
who holds land for agricultural purposes may, therefore subject to any reasonable restriction
that may be made by the State, have the right to use water for irrigational purposes and for
that purpose he may even excavate a tank. But under no circumstances, he can be permitted
to restrict flow of water to the neighbors’ land or discharge effluents and contaminate water
affecting the right of his neighbor to use water. Such an act would violate Article 21 of the
Constitution of India. This opinion was expressed by the Andhra Pradesh High Court while
deciding two batches of writ petitions – one by a group of prawn farmers who alleged that
forest officials illegally interfere in their day-to-day activity and the second by a group of
small agriculturists, who were unable to carry on their agricultural activities due to the fact
that the surrounding lands were being used for prawn and shrimp culture and their lands were
rendered unfit for agriculture.

PROVISIONS UNDER THE INDIAN PENAL CODE:

Chapter 14 of the Indian Penal Code contains provisions relating to offences affecting the
public health, safety, convenience, decency and morals. Section 268 deals with Public
Nuisance and it provides that “a person is guilty of a public nuisance, who does any act, or is
guilty an illegal omission, which causes any common injury, danger, or annoyance to the
public or to the people in general who dwell or occupy property in the vicinity or which must
necessarily cause use any public right”.

Under the Indian Penal Code, 1860 the word person is defined to include “any company
or association or body of persons, whether incorporated or not”. The word public includes
any class of the public or any community. Therefore, a body or class of persons living in a
particular locality may come within the term public.

In view of the above, acts, which interfere with the health, safety, comfort, or
convenience of the public generally has always been considered public nuisances. For e.g.

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keeping large quantities of materials for making fireworks near a street, working rise husking
machine at night in a residential quarter of city etc., have been held to be public nuisances.

Section 268 requires the following essentials:

1. doing of any act or illegal omission to do an act;

2. the act or omission;

(i) must cause any common injury, danger or annoyance_

(a) to the public or

(b) to the people in general, who dwell or occupy property in the vicinity, or

(ii) must cause injury, obstruction, danger or annoyance to persons who may have
occasions to use any public right.

Section 290 prescribed punishment for public nuisance. The punishment prescribed is a
fine, which may extend to Rs. 200.

In Tamil Nadu, The Tamil Nadu Prohibition of Smoking and Spitting Act, 2002 was
enacted to provide to provide for prohibition of smoking and spitting in the place of public
work or use and in public service vehicle. The Act prohibits smoking and spitting in place of
public work, prohibits smoking and spitting in public service vehicle and prescribes a
punishment of fine which may extend to Rs. 100 and in case of second or subsequent offence
shall be punishable with a minimum fine of Rs. 200 which may extend to Rs. 500.

The Act further prohibits advertisement of smoking and chewing in any place of public
work or use, prohibits storage, sale and distribution of cigarettes, beedies, cigar, supari with
tobacco, zarda, snuff, or any other smoking or chewing substance containing tobacco within
an area of 100 meters around any college, school or other educational institutions.

Violators will be punished with fine which may extend to Rs. 500 and in case of second
or subsequent offence, shall be punishable with imprisonment which extends to three months,
or with a minimum fine of Rs. 500, but which may extend to Rs. 1000 or with both.

OFFENCE UNDER THE INDIAN PENAL CODE AFFECTING PUBLIC HEALTH,

SEFETY AND CONVENIENCE:

1. Section 268 – Public Nuisance (causing annoyance) – Fine – Rs. 200 u/s 290.

2. Section 269 – Negligent act likely to spread infection of disease dangerous to life –
Imprisonment of either description upto 6 months or fine or both.

3. Section 270 – Malignant act likely to spread infection of disease dangerous to life –
Imprisonment of either description upto 2 years or fine or both.

4. Section 277 – Fouling water of public spring or reservoir – Imprisonment of either

description upto 3 months or fine upto Rs. 500 or both.

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5. Section 278 – Making Atmosphere noxious to health – Fine upto Rs. 500.

6. Section 283 – Danger or obstruction in public way – Fine upto Rs. 200.

7. Section 284 – Negligent conduct with respect to poisonous substances – Imprisonment of

either description upto 6 months or fine upto Rs. 1000 or both.

8. Section 285 – Negligent conduct with respect to fire or combustible matter –

Imprisonment of either description upto 6 months or fine upto Rs. 1000 or both.

9. Section 286 – Negligent conduct with respect to explosive substances – Imprisonment of

either description upto 6 months or fine upto Rs. 1000 or both.

10. Section 287 – Negligent conduct with respect to machinery – Imprisonment of either
description upto 6 months or fine upto Rs. 1000 or both.

PROVISIONS UNDER CRIMINAL PROCEDURE CODE:

Part B of chapter X of the Code of Criminal Procedure deals with Public Nuisances.
Sections 133 to 143 & 144 deal with abatement of Public Nuisance. Section 133 confers a
power on the Magistrate (District Magistrate or Sub-Divisional Magistrate or any other
Executive Magistrate specifically empowered in this behalf by the State Government) to deal
with public nuisances.

The provisions of this section are attracted only in cases of emergency and imminent
danger to the health or the physical comfort of the community. This power, it was held, could
be used by the Magistrate to order a Municipality to remove a nuisance caused by the
existence of open drainage, pits, and public excretion by human beings for want of lavatories.
The erring Municipality could be punished under Section 188 of the Indian Penal Code.

Any unlawful obstruction or nuisance should be removed from any public place or from
any way, river or channel which is or may be lawfully used by the public; or

The conduct of any trade or occupation or the keeping of any goods or merchandise is
injurious to the health or physical comfort of the community; or

The construction of any building or the disposal of any substance as is likely to occasion
conflagration or explosion; or

Any building, tent or structure being in such condition that it is likely to fall and thereby
cause injury to persons living or carrying on business in the neighborhood of passing by; or

Any tank, well or excavation adjacent to any public way or public place remaining
unfenced which may cause danger to public; or

Any dangerous animal should be destroyed, confined or otherwise disposed.

CONSTITUTIONAL LAW REMEDIES:

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 Remedies for enforcement of “fundamental right to live in a clean and healthy
environment” are provided under Articles 32 and 226 of the Constitution of India. Hence,
victims of pollution or any public-spirited individual or organization may approach the
Supreme Court for remedy under Article 32 of the Constitution of India or the High Court of
the concerned State under Article 226 of the Constitution of India.

Article 32 of the Constitution of India guarantees the right to move the Supreme Court by
appropriate proceedings for the enforcement of the fundamental rights. The right to move the
Supreme Court is itself a guaranteed right and the importance of this has been highlighted by
the Supreme Court in Prem Chand Garge vs. Excise Commissioner (AIR 1963 SC 996 p.
999).

The Supreme Court is bound to issue ‘appropriate’ direction, order or writ for
enforcement of the fundamental rights, there is no obligation on the Supreme Court to give
any particular kind of remedy to the petitioner. What should be the appropriate remedy to be
given to the petitioner for the enforcement of the fundamental right sought to be vindicated
by him is a matter for the Court to decide under Article 32 (2).

REMEDIES UNDER ARTICLE 226:

Article 226 of the Constitution of India confers power on High Courts to issue directions,
orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, or any of them, for the enforcement of rights guaranteed under Part
III of the Constitution (Fundamental Rights) and for any other purpose.

Article 226 had conferred discretionary powers of a most extensive nature on the High
Courts. The High Courts can in the exercise of its discretion pass orders in terms of public
interest and equity. The discretionary powers conferred on the High Courts under Article 226
are for doing justice and correcting injustice.

MASS TORT ACTION FOR ENVIRONMENTAL HAZARDS:

Bhopal Gas Tragedy – 3rd December 1984. It was a cold night. Bhopal was quiet;
most people were indoors, asleep. At the giant 70 acre pesticide plant of Union Carbide India
Limited (UCIL), the night shift was on duty as usual.

Suddenly, just past midnight, an operator in the factory’s methyl isocyanate (MIC)
unit noticed something very unusual. The gauge on the control panel showed that pressure
was fast building up inside tank E610, one of the tanks containing the lethal liquid, MIC.

The huge 40 ft by 8 ft storage tank was partially underground with a concrete

reinforcement on top, and contained around 40 tons of MIC. This liquid, which had to be kept
close to 0 degree Celsius, had reached a temperature of over 100 degree Celsius. The tank
started vibrating so violently that the reinforcement cracked. The workers fled from the
scene.

By then the safety valve had given way, releasing the gas into a 70 ft pipeline leading
into a vent gas scrubber. But that night, the scrubber was not working. It has been shut down

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for maintenance. Normally, a plant dealing with potentially dangerous chemicals is designed
with a number of safety checks and measures. But in a bizarre sequence of events, all five of
the safety systems in this plant failed that night.

Unknown to the sleeping citizens of Bhopal, a dense, whitish cloud of poisonous

gases escaped into the air. From around 12.30 a.m. to about 2 a.m. on Monday, 3rd December
1984, tank E610 emptied its deadly contents relentlessly into the atmosphere. The gas was
gushing out of the vent pipe at tremendous speed.

The homeless who slept unprotected on the pavements died first, in their sleep. Many
of them were children. The next morning their bodies were found huddled under blankets.
Women, children, and the old, sick and infirm – those who could not escape quickly enough
– died in large numbers.

Those who could ran. Screaming, wailing, dragging each other, they tried to get away
in whichever direction they could. In the confusion, some ran to the factory for shelter they
ran towards the gas. Families were separated. Those who could not run fast enough were left
behind. Women fell on the roadside. Children were trampled in stampedes as people ran
blindly, pushing aside whoever came in the way.

Many found themselves on the outskirts of Bhopal, frightened and ill. Alone and
stranded, they searched for their loved ones.

A bewildered, dying mass of people moved towards hospitals. Hamidia Hospital, one
of the largest in Bhopal, had to tackle over 25,000 cases that first night much beyond what it
could cope with.

Faced with the unprecedented situation, the response from the Madhya Pradesh
Government, too, appeared confused. Initially, the public address systems were used to ask
people not to panic. They were advised to remain indoors. But later, after 2 a.m., the police
urged the people to evacuate the city.

How many died that night? The official estimate of the number who died that night is
given as 1300, but eyewitnesses say that around 3000 people died at once or in a day or two.
If one were to take into account the lingering deaths that followed over weeks, months and
years, the toll is believed to cross 20,000. Actually, it was not the dead who mattered so much
that night. In the days that came they were given mass burials, often unidentified, unclaimed.
When crematoriums ran out of wood, bodies were doused in kerosene and burnt.

Over 1600 animals had died which included dogs, cows and goats. Their bloated
corpses posed a serious danger of epidemics. Finally, they were buried in a one-acre plot with
the help of 10 bulldozers. Trucks of bleaching powder, lime and caustic soda were spread on
the mass graves to purify the atmosphere.

Taking into account “the proverbial delay, exorbitant court fee, complicated
procedures in recording evidence, lack of public awareness, the technical approach of the
Bench and the Bar and absence of specialization among lawyers” the Parliament of India
enacted a law called “The Bhopal Gas Leak Disaster (Processing of Claims) Act in the year

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1985. This Act conferred on the Union of India the responsibility of imitating a Mass Tort
Action on behalf of the victims of the Bhopal Gas Leak Tragedy in the capacity of Parens
Patriae. The Doctrine of Parens Patriae relates to the right of a person to sue and to be sued
on behalf of another who is incapacitated to take up the case before a judicial forum as
effectively as the former can. The intention of the Act was to ensure that the claims of the
victims were dealt with ‘speedily, effectively, equitably and to the best advantage of the
claimants’’.

Acting as Parens Partriae the Union of India felt that a US Court would be the most
appropriate forum for adjudication of the claims and initiated a Mass Tort Action before the
US District Court of Southern District of New York. The Union of India tried to justify their
choice of forum on the ground that Indian Courts have not reached full maturity to protect the
interests of victims suitably and that the Indian Law of Torts is in its infancy. The US District
Court of Southern District of New York rejected the contentions of the Union of India on the
ground of ‘forum non-convenience’ and suggested that “the Indian victims can fairly and
justly be compensated in their own country according to the cultural standards that ordinarily
affect their everyday lives”.

Since the US District Court rejected the claim of the Union of India, the Union of
India filed a suit in the District Court of Bhopal on behalf of the victims. The District Court
made an order of interim relief for Rs. 3500 million by invoking the inherent powers of the
Courts under Section 151 of the Code of Civil Procedure. The High Court on appeal reduced
the interim relief granted by the District Court to Rs. 2500 million. Both the parties viz., the
Union Carbide Corporation and the Union of India appealed before the Supreme Court.
During the course of appeal, the parties decided to settle the matter by compromise and the
Supreme Court accepted the suggestion. The Court accepted for the compromise because
“considerations of excellence and niceties of legal principles were greatly over shadowed by
the pressing problems of very survival for a large number of victims”.

Since the matter involved the interest of a large number of victims of a mass disaster,
the Court hoped that the settlement would do them good and bring them immediate relief
before it was too late.

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 UNIT – IX

LAWS RELATING TO CONTROL OF POLLUTION

THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974

AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981

NOISE POLLUTION - LEGAL CONTROL

THE NOISE POLLUTION (REGULATION AND CONTROL) RULES, 2000:

LAND POLLUTION – LAW RELATING TO MANAGEMENT OF WASTES

ENVIRONMENT (PROTECTION) ACT, 1986

THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974:

Water pollution as defined in ‘The Water (Prevention and Control of Pollution) Act,
1974’ means “such contamination of water or such alteration of the physical, chemical or
biological properties of water or such discharge of any sewage or trade effluent or of any
other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or
is likely to, create a nuisance or render such water harmful or injurious to public health or
safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the
life and health of animals or plants or of aquatic organisms”.

There are numerous sources of water pollution. The most important of them are industrial
effluents, municipal sewage, waste from agricultural practices, etc. The Industrial effluents
contain both organic and inorganic hazardous chemicals.

When discharged through the sewage system, the industrial effluents poison the
biological purification mechanisms of sewage treatment. In most of the cities and towns
municipal sewage are not treated before discharges into the waterways.

The objects of ‘The Water (Prevention and Control of Pollution) Act, 1974’ are:

To provide for the prevention and control of water pollution;

To maintain or restore wholesomeness of water;

To establish pollution control boards; and

To confer on pollution control boards powers and functions relating to prevention and
control of water pollution.

AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981:

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 Air Pollution may be described as the imbalance in the quality of air, which causes ill
effects. Air Pollutions are those materials that exist in such concentrations so as to cause
unwanted effects. Different types of pollutants are continuously emitted into the atmosphere
but are removed by the self-purification process of air.

When the rate of pollution exceeds and when the self-purifying capacity decreases,
accumulation of pollutants in the air causes serious health problems not only to human beings
but also to other living creatures. Air pollutions can be broadly classified into two groups.
One is gaseous pollutant and the other is particulate pollutant.

Gaseous pollutants include substances that are gaseous in nature at normal temperature
and pressure. Of all the gaseous pollutants, the primary gaseous pollutants are carbon
monoxide, sulphur dioxide, hydrogen sulphides, hydrogen fluoride, hydrogen chloride,
oxides of nitrogen, hydrocarbon etc.

Particulate pollutants consist of both solid and liquid particles. They vary in size, ranging
from 0.01 micron to 20 microns. Some of the common particulate pollutants present in the
atmosphere dust, fume, mist, spray, smoke, etc.

Object of Air Act:

The object of Air (Prevention and Control of Pollution) Act, 1981 are:

1. to provide for the prevention of air pollution,

2. for control of air pollution,

3. for abatement of air pollution,

4. for the establishment of Pollution Control Boards,

5. for conferring and assigning, powers and functions on such Boards: and

6. to implement the decisions taken at the United Nations Conference on the Human
Environment held in Stockholm in June, 1972, in which India participated, to take
appropriate steps for the preservation of the natural resources of the earth which, among other
things, include the preservation of the quality of air and control of air pollution.

NOISE POLLUTION - LEGAL CONTROL:

The word noise is derived from the Latin word “nausea”. Noise is defined to mean
“sound which is undesirable by recipient”.

Encyclopedia Britannica defines noise as “undesired sound”.

Encyclopedia Americana defines noise as “unwanted sound”.

Psychologist defines the term noise as “an unwanted sound which increases fatigue
and under some industrial conditions it with efficiency”.

STEPS TO BE TAKEN TO COMBAT NOICE POLLUTION:

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 Some of the legal solution for the problem exist in the legal regime in the form of one or
two provisions in various legislations like the Indian Penal Code, 1860, the Police Act, 1861,
the Madras City Police Act, 1888, the Motor Vehicles Act, 1939, the Factories Act 1948, the
Code of Criminal Procedure 1973, the Air (Prevention and Control of Pollution) Act, 1981,
the Environment (Protection Act), 1986.

Apart from these legislations the Ministry of Environment and Forest, Government of
India has notified the Noise Pollution (Regulation and Control) Rules, 2000.

THE NOISE POLLUTION (REGULATION AND CONTROL) RULES, 2000:

These rules were made by the Ministry of Environment and Forests and notified through a
notification dated 14th February 2000. This notification was made with the object of
maintaining Ambient Air Quality Standards in respect of noise.

It was made especially to reduce the increasing ambient noise levels in public places from
various sources like industrial activity, construction activity, generator sets, loud speakers,
public address systems, music systems, vehicular horns and other mechanical devices which
cause deleterious effects on human health and the psychological well being of the people.

These rules have authorized the Central Government and the State Governments and
more specifically the District Magistrate, Police Commissioner or any other officer not below
the rank of the DSP designated for the maintenance of the ambient air quality standards in
respect of noise to implement these rules.

THE MADRAS CITY POLICE ACT, 1888:

Section 71 (XX) of the Madras City Police Act, 1888 prohibits playing music, beating
tom-tom, etc. in public places. The section reads as follows:

“whoever beat a drum or tom-tom, or blow a horn or trumpet, or beats or sound any brass
or other instrument or utensil, except at such times and places and subject to such conditions
as shall from time to time be allowed by the Commissioner”, “… shall be liable on conviction
to fine not exceeding two hundred and fifty rupees or to imprisonment which may extend to
three months.”

LAND POLLUTION – LAW RELATING TO MANAGEMENT OF WASTES

SOURCES OF LAND POLLUTION:

Land pollution usually results from:

(1) the dumping and improper disposal of industrial and municipal solid wastes and;

(2) by the semi-solid wastes resulting from agricultural practices.

Dumping of industrial and municipal solid waste causes toxic materials to be leached
and to seep into the soil which not only very seriously affects the productivity of the land but
also the purity of life saving ground water resource.

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Disposal of industrial solid wastes is a major source of land pollution by toxic chemicals.

Industrial wastes are mainly discharged from certain types of industries like mining
industries (coal & mineral mining), metal processing, chemical and engineering industries.

These wastes contain toxic materials, which can cause a host of public health problems,
directly or indirectly.

ENVIRONMENT (PROTECTION) ACT, 1986

Object of the Act –

The Environment Protection Act was enacted by the Parliament in the year 1986. This act
was enacted with the object of providing for the protection and improvement of environment
and for matters connected therewith.

The preamble to the Act points out that the environment protection act was made:

1. To implement decisions taken at the United Nations Conference on the human

environment held at Stockholm in June 1972,

2. To take appropriate steps for the protection and improvement of human

environment; and

3. To prevent hazards to human beings, other living creatures, plants and property.

Section 2 (c) defines ‘environment pollution’ as the “presence in the environment of

any environmental pollutant.”

Section 2 (b) defines ‘environmental pollutant’ as “any solid, liquid or gaseous

substance present in such concentration as may be, or tend to be, injurious to environment.”

IMPORTANT RULES AND NOTIFICATIONS MADE UNDER THE

ENVIRONMENT (PROTECTION) ACT 1986:

The Central Government, to perform its functions effectively as contemplated in the

Environment Protection Act, has made various Rules, notifications and Orders including the
following:

1. Hazardous waste (Management and Handling) Rules, 1989 as amended in 2000;

2. Rules for the Manufacture, use, import, export and storage of hazardous micro organisms,
genetically engineered organisms or cells, 1993;

3. Manufacture, storage and import of Hazardous Chemical Rules, 1989;

4. Recognized laboratories under Rules for the manufacture, use, import, export and storage
of hazardous micro organisms, genetically engineered organisms or cells, 1993;

5. Bio-medical wastes (Management and Handling) Rules, 1998;

6. Recycled plastics (Manufacture and Usage) Rules, 1999;

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7. Environment (Siting for industrial projects) Rules, 1999;

8. The Noise Pollution (Regulation and Control) Rules, 2000;

9. Ozone Depleting substances (Regulation and Control) Rules, 2000;

10. The Municipal Solid Wastes (Management and Handling) Rules 2000;

11. Batteries (Management and Handling) Rules 2001;

12. Notification relating to the delegation of powers to the Central Pollution Control Board;

13. Eco-labeling notifications;

14. Environmental Impact Assessment Notifications;

15. Public Hearing Notifications;

16. The Coastal Regulation Zone Notification;

17. National Coastal Zone Management Authority Notification;

18. Notification relating to Prohibition and Restriction of the Handling of hazardous

substances in different cases;

19. Notification relating to Prohibition against open burning of waste oil;

20. Officers/Agencies authorized to enter the premises for inspection Notification;

21. Officers/Agencies authorized to take samples Notification;

22. Officers authorized for taking cognizance of offence Notification;

23. Notification relating to environmental laboratories and analysts;

24. 2 T Oil (Regulation of Supply and Distribution) Order, 1998;

25. Notification relating to Prevention of dumpling and disposal of fly ash;

26. Taj Trapezium Zone Pollution (Prevention and Control) Authority Notification;

27. Aqua-culture Authority Notification.

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 UNIT – X

NATIONAL GREEN TRIBUNAL

INTRODUCTION:

Industrialization, urbanization, population explosion, poverty, over exploitation of

resources, depletion of traditional resources of energy and raw materials and the search for
new sources of energy and raw materials are some of the factor which have contributed to
environmental deterioration. Today, the risk to human health and environment deterioration
has become a great concern of humanity. The last part of 20th century saw growing concern
of humanity to protect the deteriorating environment. In this regard various national as well
as international developments took place. India is party to the decisions taken at Stockholm
Conference, 1972 and Rio de Janerio Conference, 1992, wherein the participating states
were called upon to provide effective access to judicial and administrative proceedings and to

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develop national laws regarding the liability and compensation for the victims of pollution
and other environmental damages.

India also saw a growing trend of environmental litigations before the High Courts as
well as the Supreme Court. The judicial approach treated right to healthy environment as a
part of right to life under 21 of the Constitution. The Parliament of India gave a clarion call
by enacting various legislations from time to time for the protection of environment. These
legislations included the National Environment Tribunal Act, 1995, which was enacted to
establish a National Environment Tribunal for effective and expeditious disposal of cases and
to provide for strict liability for damages arising out of any accident occurring while handling
any hazardous substance. The said tribunal had a very limited jurisdiction and in fact it was
not established. Another legislation, i.e., The National Environment Appellate Authority Act,
1997 was enacted to establish the National Environment Appellate Authority, which was to
hear appeals and ensure that certain industrial operations or process unrestricted areas are
carried out subject to the safeguards under the Environment (Protection) Act, 1986. The said
Act also had a narrow scope of its jurisdiction.

Due to the complex nature of environmental litigations, the Supreme Court of India
felt the need for establishing separate environmental courts for faster, cheaper and more
effective resolution of disputes in environmental matters. It was felt that environment related
litigations involve assessment and evolution of scientific data which can be analyzed better
by a specialized court or tribunal. The need for establishing a separate environmental court
was first highlighted in the case of M.C. Mehta v. Union of India, AIR 1987 SC 965
(popularly known as Olleum Gas Leak Case) by Justice P.N. Bhagawati. In the case of
A.P. Pollution Control Board v. M.V. Nayudu-II 2001 (2) SCC 62, the Supreme Court
requested the Law Commission of India to consider the need for constitution of specialized
environmental courts. The Law Commission of India in its 186th Report, 2003, recognized
the inadequacies of the existing appellate authorities constituted under various environmental
laws and reviewed their position with a view to bring uniformity in their constitution and the
scope of their jurisdiction. The Law Commission, inter alia, recommended for setting up of
environmental courts in each State or for a group of States for exercising all powers of a civil
court in its original jurisdiction and with appellate judicial powers against orders passed by
the concerned authorities under the Water (Prevention and Control of Pollution) Act, 1981,
the Environment (Protection) Act, 1986 and the Public Liability Insurance Act, 1991.
Accordingly, the National Green Tribunal Bill was passed by both the Houses of Parliament.
It received the assent of the President on 2nd June, 2010 and it became the National Green
Tribunal Act, 2010.

GREEN BENCH:

The Supreme Court in Vellore Citizens Welfare Forum Case, Bittu Seghal Case
and in M.C. Mehta Case (Calcutta Tanneries Case) has observed that the High Courts
would be in a better position to deal with environmental issues pertaining to the region over
which it exercises jurisdiction and directed the Registry of the Supreme Court to send the
records to the High Courts of Madras, Bombay and Calcutta respectively and requested the

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Chief Justice of respective High Courts to constitute a “Green Bench” for the purpose of
adjudicating public interest environmental cases.

OBJECTIVE

The main objectives of the National Green Tribunal (NGT) are as under:

(i) To provide effective and expeditious disposal of cases relating to environmental

protection;
(ii) To provide for conservation of forests and other natural resources including
enforcement of any legal right relating to the environment;
(iii) To provide for giving relief and compensation for damages to persons and
property;
(iv) To repeal the National Environmental Tribunal Act, 1995 and the National
Environment Appellate Authority Act 1997; and
(v) To deal with matters connected therewith or incidental thereto.

SALIENT FEATURES

The NGT is not bound by the procedure laid down under the Code of Civil Procedure,
1908, but shall be guided by principles of natural justice.

NGT is also not bound by the rules of evidence as enshrined in the Indian Evidence Act,
1872.

While passing Orders, decisions, awards, the NGT will apply the principles of sustainable
development, the precautionary principle and the polluter pays principles. However, it must
be noted that if the NGT holds that a claim is false, it can impose costs including lost benefits
due to any interim injunction.

JURISDICTION

As per Section 14 (1) The National Green Tribunal has jurisdiction over all civil cases
where a substantial question relating to environment (including enforcement of any legal
right relating to environment), is involved and such question arises out of the implementation
of the enactments specified in Schedule I of the National Green Tribunal Act 2010. The acts
listed in Schedule 1 are:

The Water (Prevention and Control of Pollution) Act, 1974;

The Water (Prevention and Control of (Pollution) Act, 1977;

The Forest (Conservation) Act, 1980

The Air (Prevention and Control of Pollution) Act, 1981;

The Environment (Protection) Act, 1986;

The Public Liability Insurance Act, 1991;

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 The Biological Diversity Act, 2002.

The Tribunal shall hear the disputes arising from the questions referred to in sub- section
(I) and settle such disputes and pass orders thereon.

Appellate jurisdiction under section 16 of the Act. As per Section 15 (1) of the Act, the
Tribunal may, by an order, provide,-

(a) relief and compensation to the victims of pollution and other environmental damage
arising under the enactments specified in the Schedule 1 (including accident occurring while
handling any hazardous substance);

(b) for restitution of property damaged;

(c) for restitution of the environment for such area or areas, as the Tribunal may think fit.

REVIEW AND APPEAL

Orders can be appealed to the Supreme Court within 90 days.

UNIT – XI

THE WATER (PREVENTION AND CONTROL OF POLLUTION) ACT, 1974

INTRODUCTION:

Water is a basic need for the survival of human beings and is part of the right to life
and human rights as enshrined in Article 21 of the Constitution of India. The Resolution of
UNO in 1977 to which India is a signatory, during the United Nations Water Conference
resolved unanimously, inter-alia, as under:

In Narmada Bachao Andolan v. Union of India, (2000) 10 SCC, All people,

whatever their stage of development and their social and economic conditions, have the right
to have access to drinking water in quantum and of a quality equal to their basic needs.

The United Nations also emphasized the importance of purity of water when it
proclaimed on 10th November, 1980 “International Water Supply and Sanitation Decade.”
India is also signatory to this Declaration. Thus, the right to access to drinking water is
fundamental to life and there is a duty on the state under Article 21 to provide clean drinking
water to its citizens (A.P. Pollution Control Board II v. M.V. Nayudu, (2001) 2 SCC).

In State of Orissa v. Government of India, (2009) 5 SCC, Katju, J., opined that the
right to get water is a part of life guaranteed by Article 21 of the Constitution. It is a gift of
nature. Human hand cannot be permitted to convert this bounty into a curse, oppression.
Right to life guaranteed in any civilized society, inter alia, right to water and decent
environment. These are basic human rights known to any civilized society (Delhi Water
Supply & Sewage Disposal Undertaking v. State of Haryana, (1996) 2 SCC).

Water Pollution:

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 Water pollution as defined in ‘The Water (Prevention and Control of Pollution) Act,
1974’ means “such contamination of water or such alteration of the physical, chemical or
biological properties of water or such discharge of any sewage or trade effluent or of any
other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or
is likely to, create a nuisance or render such water harmful or injurious to public health or
safety, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the
life and health of animals or plants or of aquatic organisms”.

There are numerous sources of water pollution. The most important of them are industrial
effluents, municipal sewage, waste from agricultural practices, etc. The Industrial effluents
contain both organic and inorganic hazardous chemicals. When discharged through the
sewage system, the industrial effluents poison the biological purification mechanisms of
sewage treatment. In most of the cities and towns municipal sewage are not treated before
discharges into the waterways.

The common organic materials found in Municipal sewage are soaps, synthetic
detergents, fatty acids, proteinous matters such as amines, amino acids, amides and amino
sugars.

In addition it also contains numerous micro organisms, some of which may be

pathogenic in character.

Modern agricultural practices also contribute its might to the water Pollution.

Plant nutrients (fertilizers), insecticides and pesticides are introduced into watercourses
by agricultural practices. To solve the problems caused by water pollution legally, the
Parliament enacted a Statute in the year 1974 called “The Water (Prevention and Control of
Pollution) Act.

The objects of ‘The Water (Prevention and Control of Pollution) Act, 1974’ are:

To provide for the prevention and control of water pollution;

To maintain or restore wholesomeness of water;

To establish pollution control boards; and

To confer on pollution control boards powers and functions relating to prevention

and control of water pollution.

Definitions._

Section 2 of “The Water Prevention and Control of Pollution) Act, 1974” provides
definitions for words like Board, Central Board, Member, Occupier, Outlet, Pollution,
Prescribed, Sewage effluent, Sewer, State Board, State Government, Stream, Trade Effluent.

According to Section 2(e) of the Water Act, 1974, the word “Pollution” is defined as
such_

1. contamination of water; or

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 2. alteration of the physical, chemical or biological properties of water; or

3. discharge of any sewage or trade effluents or of any other liquid, gaseous or solid
substance into water (whether directly or indirectly) as may, or is likely to create a nuisance;
or

4. render such water harmful or injurious to public health or safety or to domestic,

commercial, industrial, agricultural or other legitimate uses or to the life and health of
animals or plants or of aquatic organisms.

‘Sewage Effluent’ means effluent from any sewerage system or sewage disposal works
and includes sullage from open drains.

‘Trade Effluent’ includes any liquid, gaseous or solid substance, which is discharged
from any premises used for carrying on any industry operation or process, or treatment and
disposal system, other than domestic sewage.

The word ‘Stream’ is defined in Section 2(j) to include_

River

Water course (whether flowing or for the time being dry)

Inland water (whether natural or artificial)

Sub-terranean waters

Sea or tidal waters to such extent, or as the case may be notification in the official
gazette, specify in this behalf.

Constitution of Central Pollution Control Board:

 A full time Chairman

 Not more than 5 Officials as representatives of Central Government.
 Not more than 5 persons from amongst the Members of the State Boards, of whom
not exceeding 2 shall be from Members representing the Local Authorities.
 Not more than 3 Members to represent the interest of agriculture, fishery or industry
or trade or any other interest which in the opinion of the Government, ought to be
represented.
 2 persons to represent the companies or corporation owned, controlled or managed by
the Central Government.
 A full time Member Secretary possessing qualifications, knowledge and experience of
scientific, engineering or management aspects of pollution control.
 The Central Government nominates all the above members.

Constitution of State Pollution Control Board:

 The State Pollution Control Board comprises of the following Members, namely.

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  A Chairman
 Not more than 5 officials as representatives of State Government.
 Not more than 3 members to represent the interest of agriculture, fishery or industry
or trade or any other interest which in the opinion of the Government, ought to be
represented.
 2 persons to represent the companies or corporations owned, controlled or managed
by the State Government.
 A full time Member Secretary possessing qualifications, knowledge and experience of
scientific, engineering or management aspects of pollution control.
 The State Government nominates all the above members. The Members of the Board
other than Member Secretary shall hold office for a period of 3 years from the date of
his nomination. A Member of the Board is also eligible for renomination.

Function of the Central Pollution Control Board (CPCB):

Section 16 of the Water Act has enumerated the functions of the Central Pollution
Control Board. The main function of the CPCB shall be to promote cleanliness of streams
and wells in different areas of the States.

Apart from this, the CPCB may perform all or any of the following functions:

1. Advise the Central Government on matters relating to the prevention and control of
water pollution.

2. Co-ordinate the activities of the State Pollution Control Boards (SPCB) and
resolve dispute among them.

3. Provide technical assistance and guidance to the SPCBs, carryout and sponsor
investigations and research relating to problems of water pollution and prevention, control or
abatement of water pollution.

4. Plan and organize the training of persons engaged in programs for the prevention,
control or abatement of water pollution.

5. Organize comprehensive programs regarding prevention and control of water

pollution through mass media.

6. Collect, compile and publish technical and statistical data relating to water
pollution and prepare manuals, codes or guides relating to treatment and disposal of sewage
and trade effluents and disseminate information connected therewith.

7. Lay down, modify or annul the standards for a stream or well.

8. Plan and execute a nation wide program for prevention, control and abatement of
water pollution.

9. Establish or recognize laboratory or laboratories to enable the CPCB to perform

the above function and,

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 10. Perform such other functions as may be prescribed.

Functions of the State Pollution Control Board (SPCB):

Section 17 of the Water Act has laid down a list of function to be performed by the
SPCB. The functions are:

1. To plan a comprehensive program for prevention, control or abatement of pollution

of streams and wells in the State.

2. To advise the State Government on matters relating to prevention, control or

abatement of water pollution.

3. To collect and disseminate information relating to prevention, control or abatement

of water pollution.

4. To encourage, conduct and participate in investigations and research relating to

prevention, control or abatement of water pollution.

5. To collaborate with the CPCB in organizing the training of persons engaged in

programs relating to prevention, control or abatement of water pollution.

6. To inspect sewage or trade effluents, works and plants for the treatment of sewage
and trade effluents and to review the plans, specifications or other data relating to plants set
up for the treatment of water in connection with the grant of any consent as required by the
Water Act.

7. To lay down, modify or annul effluent standard for the sewage and trade effluents,
and for the quality of receiving waters and to classify the waters of the State.

8. To evolve economical and reliable methods of treatment of sewage and trade

effluents.

9. To evolve methods of utilization of sewage and suitable trade effluents in

agriculture.

10. To evolve efficient methods of disposal of sewage and trade effluents on land.

11. To lay down standards of treatment of sewage and trade effluents to be

discharged into in any particular stream.

12. To make, vary or revoke any order for the prevention, control or abatement of
discharges of wastes into streams for the disposal of sewage and trade effluents or to modify,
alter or extend any such existing system or to adopt such remedial measures as are necessary
for prevention, control or abatement of water pollution.

13. To lay down effluent standards to be complied with the persons while discharging
sewage or sullage.

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 14. To establish or recognize laboratory or laboratories to enable the Board to
perform the above functions efficiently.

15. To advise the State Government with respect to the location of any industry the
carrying on of which is likely to pollute a stream or well.

16. To perform such other functions as may be prescribed or as may, from time to
time be entrusted to it by the Central Board or the State Government.

Powers of the Central Pollution Control Board:

The CPCB is vested with the following powers:

1. The Central Pollution Control Board is empowered by Section 18 of the Water Act
to give directions to the State Pollution Control Boards.

2. The CPCB has powers to perform any of the functions of the SPCB in case of non-
compliance of any directions given by the CPCB.

3. The CPCB is empowered to issue directions under Section 33A to direct:

The closure, prohibition or regulation of any industry, operation or process; or

The stoppage or regulation of supply of electricity, water or any other service.

Powers of the State Pollution Control Board:

The State Pollution Control Board (SPCB) has the following powers conferred on it by
the Water Act:

1. Power to obtain information. (Sec. 20)

2. Power to take samples of effluents for analysis. (Sec.21)

3. Power of entry and inspection. (Sec. 23)

4. Power to impose restriction on new outlets and new discharges. (Sec. 25)

5. Power to refuse or withdraw consent for establishment of any industry, etc. (Sec. 27)

6. Power to carry out certain works. (Sec. 30)

7. Power to carry out emergency operations in case of pollution of stream or well. (Sec.
32)

8. Power to make application to courts for restraining apprehended pollution of water in

streams or wells. (Sec. 33)

9. Power to give directions. (Sec. 33A)

Penalties:

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 The Water Act has prescribed the following punishments for the acts prohibited under the
Act:

1. Failure to comply with directions given under Section 20 (directions requiring persons
to give information as to the abstraction or discharge of water) - Imprisonment which may
extend upto 3 months or with fine upto Rs. 10,000 or with both. If the failure continues –
Additional fine which may extend to Rs. 5000 for every day during which such failure
continues.

2. Failure to comply with any order issued under Section 32 (power of the SPCB to issue
orders for immediately restraining or prohibiting the persons concerned from discharging any
poisonous, noxious or polluting matter) - Imprisonment which shall not be less than 1 year
and 6 months but which may extend upto 6 years and with fine.

Failure to comply with direction issued by a Court under Section 33 – Same as above.

Failure to comply with direction issued by Court under Section 33 – Same as above.

Failure to comply with directions issued by the Board under 33A (directions relating to
closure of industry, stoppage of electricity etc.) – Same above.

If the failure continues – Additional fine which may extend to Rs. 5000 for everyday.

If the failure continues beyond a period of 1 year after the date of conviction –
Imprisonment for a term which shall not be less than 2 years but which may extend up to 7
years and with fine.

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 UNIT – XII

AIR (PREVENTION AND CONTROL OF POLLUTION) ACT, 1981

INTRODUCTION:

With the increasing industrialization and the tendency of the majority of industries to
congregate in areas, which are already heavily industrialized, the problem of air pollution has
begun to be felt in the country. The presences in air, beyond certain limits, of various
pollutants discharged through industrial emissions and from certain human activities
connected with traffic, heating, use of domestic fuel, refuse incineration, etc., have a
detrimental effect on the health of the people as also on animal life, vegetation and property.

Air Pollution:

Air Pollution may be described as the imbalance in the quality of air, which causes ill
effects. Air Pollutions are those materials that exist in such concentrations so as to cause
unwanted effects. Different types of pollutants are continuously emitted into the atmosphere
but are removed by the self-purification process of air.

When the rate of pollution exceeds and when the self-purifying capacity decreases,
accumulation of pollutants in the air causes serious health problems not only to human beings
but also to other living creatures. Air pollutions can be broadly classified into two groups.
One is gaseous pollutant and the other is particulate pollutant.

Gaseous pollutants include substances that are gaseous in nature at normal temperature
and pressure. Of all the gaseous pollutants, the primary gaseous pollutants are carbon
monoxide, sulphur dioxide, hydrogen sulphides, hydrogen fluoride, hydrogen chloride,
oxides of nitrogen, hydrocarbon etc.

Particulate pollutants consist of both solid and liquid particles. They vary in size, ranging
from 0.01 micron to 20 microns. Some of the common particulate pollutants present in the
atmosphere dust, fume, mist, spray, smoke, etc.

Sources of Air Pollution:

The man made sources of air pollution are many of which, the primary sources are
stationary combustion, transportation, industrial process and solid waste disposal process.

Stationary combustion process results in emission of particulate pollutions, such as fly

ash and smoke, and also gaseous pollutants like oxides of sulphur and nitrogen.

Automobile exhausts release smoke and to a certain extent, lead particles.

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 Smoke is primarily produced due to the incomplete combustion of carbonaceous
materials. Smoke contains gaseous pollutants like carbon monoxide, hydrocarbons and oxides
of nitrogen.

Due to increasing industrialization and industrial process almost all types of air
pollutants are released into the atmosphere.

Cement industries, steel industries and thermal power plants are the major polluting
industries where it is generally reported that it is very difficult to control the emission of
pollutants.

Solid waste disposal is yet another major contributor to the atmospheric pollution
especially in urban areas.

Backyard burning and open burning of solid waste comprising of plastic materials results
in emission of smoke and gaseous pollutants which are highly carcinogenic.

Effects of Air Pollution:

Air Pollution causes many adverse effects on human health, on animals, on plants, on
materials and on atmosphere itself. Air pollution affects the respiratory system of human
beings through both gaseous and particulate pollutants causing severe damage to it.

Lung cancer, bronchitis, emphysema (enlargement of air vesicle of the lungs) and asthma
are some of the chronic disease due lead emitted form automobile exhaust is a cumulative
poison, which is dangerous, particularly to children since it can cause brain damage.

Similarly air pollution also causes many diseases which adversely affects the animals
especially, the domestic animals.

Air pollution also causes a lot of damage to the Vegetation. Air pollution also affects
property and materials. The increased combustion of fossil fuels and oil has increased the
carbon dioxide concentration in the atmosphere in recent years.

Carbon dioxide absorbs heat strongly and the radioactive cooling effect of the earth gets
decreased. This results in the raise in the earth’s surface temperature.

To combat the problems created as a result of air pollution legally, the Parliament of
India enacted a Statute in the year 1981 called ‘the Air (Prevention and Control of Pollution)
Act, 1981.

Object of Air Act:

The object of Air (Prevention and Control of Pollution) Act, 1981 are:

1. to provide for the prevention of air pollution,

2. for control of air pollution,

3. for abatement of air pollution,

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4. for the establishment of Pollution Control Boards,

5. for conferring and assigning, powers and functions on such Boards: and

6. to implement the decisions taken at the United Nations Conference on the Human
Environment held in Stockholm in June, 1972, in which India participated, to take
appropriate steps for the preservation of the natural resources of the earth which, among other
things, include the preservation of the quality of air and control of air pollution.

Meaning of Air Pollution:

Section 2(b) of the Air Act defines Air Pollution as “the presence in the atmosphere of
any air pollutant”.

To understand Air pollution better, one should know, what is ‘air pollutant’? Sec. 2(a) of
the Air Act defines air pollutant as “any solid, liquid or gaseous substance [including noise]
present in the atmosphere in such concentration as may be or tend to be injurious to human
beings or other living creatures or plants or property or environment”.

Authorities under the Air Act:

The Central Pollution Control Board constituted under section 3 of the Water (Prevention
and Control of Pollution) Act, 1974 shall exercise the powers and perform the functions of
the Central Pollution Control Board for the prevention and control of air pollution under the
Air Act.

In any State in which the Water (Prevention and Control of Pollution) Act, 1974, is not in
force, the state Government shall, constitute a State Pollution Control Board for the
Prevention and control of Air Pollution.

POWERS AND FUNCTIONS OF CENTRAL AND STATE POLLUTION CONTROL

BOARDS:

Functions of the Central Pollution Control Board: Section 16 of the Air Act has
enumerated a list of functions to be discharged by the Central Pollution Control Board. The
main functions of the Central Pollution Control Board shall be:

1. To improve the quality of air and

2. To prevent, control or abate air pollution in the country.

Apart from improving the quality of air and preventing, controlling and abating air
pollution in the country, the Central Board may discharge the following functions:

1. Advise the Central Government on any matter concerning the improvement of the
quality of air and the prevention, control or abatement of air pollution;

2. Plan and cause to be executed a nation-wide program for the prevention, control or
abatement of air pollution;

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 3. Co-ordinate the activity of the State Boards and resolve disputes among them;

4. Provide technical assistance and guidance to the State Boards;

5. Carry out and sponsor investigations and research relating to problems of air pollution
and prevention, control or abatement of air pollution;

6. Plan and organize the training of persons engaged or to be engaged in programs for the
prevention, control or abatement of air pollution;

7. Organize through mass media a comprehensive program regarding the prevention,

control or abatement of air pollution;

8. Collect, compile and publish technical and statistical data relating to air pollution and
the measures devised for its effective prevention, control or abatement;

9. Prepare manuals, codes or guides relating to prevention, control or abatement of air

pollution;

10. Lay down standards for the quality of air;

11. Collect and disseminate information in respect of matters relating to air pollution;

12. Perform such other functions as may be prescribed;

13. Establish or recognize laboratories to enable the Central Board to perform its
functions under this section efficiently;

14. Delegate any of its functions under this Act generally or specially to any of the
committees appointed by it;

15. Do such other things and perform such other acts, as it may think necessary for the
proper discharge of its functions and generally for the purpose of carrying into effect the
purposes of this Act.

Functions of the State Pollution Control Board:

Section 17 of the Air Act enumerates the functions of the State Pollution Control Board.
According to Section 17, the functions of the State Pollution control Board shall be:

1. To plan a comprehensive programme for the prevention, control or abatement of air

pollution and to secure the execution thereof;

2. To advise the State Government on any matter concerning the prevention, control or
abatement of air pollution;

3. To collect and disseminate information relating to air pollution;

4. To collaborate with the Central Board in organizing the training of persons engaged or
to be engaged in programs relating to prevention, control or abatement of air pollution;

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 5. To organize mass-education program relating to prevention, control or abatement of
air pollution;

6. To inspect, at all reasonable times, any control equipment, industrial plant or

manufacturing process;

7. To give, by order, such directions to such persons as it may consider necessary to take
steps for the prevention, control or abatement of air pollution;

8. To inspect air pollution control areas at such intervals as it may think necessary, assess
the quality of air therein and take steps for the prevention, control or abatement of air
pollution in such areas;

9. To lay down, standards for emission of air pollutants into the atmosphere from
industrial plants and automobiles or for the discharge of any air pollutant into the atmosphere
from any other source whatsoever not being a ship or an aircraft:

Provided that different standards for emission may be laid down under this clause for
different industrial plants having regard to the quantity and composition of air pollutants into
the atmosphere from such industrial plants;

10. To advise the State Government with respect to the suitability of any premises or
location for carrying on any industry this is likely to cause air pollution;

11. May establish or recognize a laboratory or laboratories to enable the State Board to
perform its functions under this section efficiently;

12. To perform such other functions as may be prescribed or as may, from time to time,
be entrusted to it by the Central Board or the State Government;

13. To do such other things and to perform such other acts as it may think necessary for
the proper discharge of its functions and generally for the purpose of carrying into effect the
purpose of this Act.

Powers of the Central Pollution Control Board:

Under Sec. 31 A, the Central Pollution Control Board may, in the exercise of its
powers and performance of its functions under this Act, issue any direction in writing to any
person, officer or authority, and such person, officer or authority shall be bound to comply
with such directions. The power to issue any direction includes the power to direct_

(a) the closure, prohibition or regulation of any industry, operation or process; or

(b) the stoppage or regulation of supply of electricity, water or any other service.

Powers of the State Pollution Control Board:

The State Pollution Control Board is conferred with certain very important powers
like;

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 1. Power to grant, refuse and cancel consent;

2. Power to make application to cope for retraining persons from causing pollution;

3. Power to take certain remedial measures to mitigate the emission of air pollutions;

4. Power of entry and inspection;

5. Power to obtain information;

6. Power to take sample of air or emission etc;

7. Power to issue directions.

1. Power to Grand / Refuse / Cancel / Consent – Sec. 21.

2. Power to make Application to Court for restraining persons from causing Air Pollution
– Sec. 22A.

3. Power to take remedial measures to mitigate the emission of Air Pollutants – Sec. 23.

4. Power to entry and inspection – Sec. 24.

5. Power to take samples of Air or Emission – Sec. 26.

6. Power to give directions – Sec. 31A.

Penalties:

Under the Air Act, Sections 37, 38 and 39 prescribes penalties. Section 37 prescribes
punishment for failure to comply with the provisions of Section 21 or 22 with directions
issued under Section 31A. Hence,

1. if a person establishes or operates any industrial plant in an air pollution control area
without the previous consent of the State Board (Sec.21); or

2. if any person operating any industrial plant in any air pollution control area discharges
or cause or permit to be discharged the emission of any air pollutant in excess of the
standards laid down by the SPCB (Sec.22); or

3. if any person fails to comply with the directions given by the Pollution Control Boards
under section 31A (directions to close, prohibit or regulate any industry, operation or process;
or to stop or regulate supply of electricity, water or any other services); he shall be punishable
with imprisonment for a term not less than 1 year and six months, which may extend up to six
years with fine.

In case the failure continues, he shall be punishable with an additional fine, which may
extend to 5000 rupees for every day during which the failure continues.

Sec. 37 further provides that if the failure continues beyond a period of one year after the
date of conviction, the offender shall be punishable with imprisonment for a term which shall
not be less than 2 years but which may extend to 7 years and with fine.

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 UNIT – XIII

NOISE POLLUTION - LEGAL CONTROL

INTRODUCTION:

Noise is a type of atmospheric pollution. It is a shadowy public enemy whose growing

menace has increased in the modern age due to rapid growth of urbanization, industrialization
and advancement of science and technology. Today, the problem of noise pollution has
emerged as one the serious problems and it has become a serious challenge to the quality of
life of the people in most of the countries. The problem of noise pollution has already crossed
the danger point and, noise like smog, is threatening as a slow agent of death.

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 In fact, the noise of dhol, dhapli, bigul and shankh has been in the root of our Indian
culture since the advent of primitive societies. People used the beat of drums as the safest
mean to protect their lives against the wild animals. Sometimes noise has been used as a
weapon to win the war. In Mahabharat, noise had been the cause of death of Guru
Dronacharya. There is hardly any religious ceremony or festival in India being performed
without any noises. In earlier days, farmers used to make use of drums to keep wild animals
away to protect their crops. But in the modern days the intensity and the frequency of the
noise has increased so much that it is posing a real threat to the human life.

The term “noise pollution” has not been defined in the Central Legislative Acts
anywhere. But the Environment (Protection) Act, 1986 recognizes noise as an “environment
pollutant” and empowers the Central Government to frame rules prescribing the maximum
permissible limits for noise in deferent areas. In 1987, amendment to the Air (Prevention and
Control of Pollution) Act, 1981, expanded the definition of “air pollution” to include noise.
Therefore, it is necessary to understand the meaning of “noise” and “pollutant”.

Meaning and Definitions of Noise Pollution:

The word noise is derived from the Latin word “nausea”. Noise is defined to mean “sound
which is undesirable by recipient”.

Encyclopedia Britannica defines noise as “undesired sound”.

Encyclopedia Americana defines noise as “unwanted sound”.

Psychologist defines the term noise as “an unwanted sound which increases fatigue and
under some industrial conditions it with efficiency”.

Blum defines noise as “a distracter and therefore interfering with efficiency”.

According to J. Tiffin, “noise is a sound which is disagreeable for an individual and

which disturbs the normal way of an individual”.

Noise is one of the undesirable outcomes of technological development. Noise is

described as “as invisible but insidious from of pollution”.

Noise as a harmful pollutant is being recognized as a great nuisance affecting the quality
of life especially in urban areas.

There prevails a view that “traditionally we are a pollution loving nation”.

“We pollute air by bursting crackers on Dussehra, Diwali and on the occasions of
marriages and other festivals,…. We are equally fond of noise pollution. God men’s voice
must be heard by all everyone, day and night, and our Ratijagas, Akhandpaths and Azan must
use loudspeakers and amplifiers; no one should be deprived from hearing God’s and
Godman’s voice – and Gods too are far away beyond the hell and heaven.

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 Our voice must reach them; otherwise our spiritual needs will remain unministered. We
are not less noisy in our secular matters. Our marriage and burial processions must be
accompanied by bands, twists and Bhangras”.

SOURCES OF NOISE POLLUTION:

There are numerous sources of noise pollution and the source may be classified as
industrial and non-industrial.

Industry is the primary source of noise pollution.

Non-Industrial source like transportation, use of amplifiers and loud speakers, etc. also
significantly contribute to the noise pollution.

EFFECTS OF NOISE POLLUTION:

The effects of noise pollution are multifaceted and interrelated. Noise Pollution not one
has its impact on human beings but also on other living and non-living things.

Noise Pollution contributes significantly to the physiological and psychological

discomfort in human beings.

The most immediate and acute health effect of noise pollution is the impairment of
hearing, which is caused by damage to some part of the auditory system.

Acute damage occurs to the eardrum when exposed to very loud, sudden noises.

Prolonged exposure to noise of a certain frequency pattern leads to temporary or

permanent hearing loss.

Noise also has ill some scientific information; the rate of heart beat either increases or
decreases depending upon the type of noise pollution.

There is also a opinion that noise causes heart output to decrease with greater
fluctuations in arterial blood pressure and vasoconstriction of peripheral blood vessels.

Changes in breathing amplitude have also been reported due to impulsive noise.

Eosinophilia, hyperglycemia, hypoglycemia and hypokalaemia are also caused by change

in blood and other body fluids due to noise.

The ‘startle reaction’, which is a direct response to noise has its effects on the nervous
system and may affect the psychomotor performance.

The optical system also gets affected due to noise pollution.

Pupillary dilation, impairment of night vision and decrease in the rate of colour
perception are also some of the effects caused by noise pollution on the optical system.

The ‘startle reaction’, which is a direct response to noise has its effects on the nervous
system and may affect the psychomotor performance.

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 The optical system also gets affected due to noise pollution. Pupillary dilation,
impairment of night vision and decrease in the rate of colour perception are also some of the
effects caused by noise pollution on the optical system.

Noise also cause irritation and it affects sleep and work efficiency. Since noise affects the
autonomic nervous system, it is an annoyance to people who do work requiring utmost
concentration.

STEPS TO BE TAKEN TO COMBAT NOICE POLLUTION:

Noise is that form of pollution, which causes great concern to the public. Hence,
necessary steps are taken to combat noise pollution. The solution for problems created by
noise pollution shall be both legal and non-legal.

Some of the non-legal solutions like clean technologies to reduce noise at source, sound
proofing to reduce noise emitted by industrial machinery and advocating use of noise
protection devices like earmuffs, etc., shall be preferred to combat the problem of noise
pollution.

Some of the legal solution for the problem exist in the legal regime in the form of one or
two provisions in various legislations like the Indian Penal Code, 1860, the Police Act, 1861,
the Madras City Police Act, 1888, the Motor Vehicles Act, 1939, the Factories Act 1948, the
Code of Criminal Procedure 1973, the Air (Prevention and Control of Pollution) Act, 1981,
the Environment (Protection Act), 1986.

Apart from these legislations the Ministry of Environment and Forest, Government of
India has notified the Noise Pollution (Regulation and Control) Rules, 2000.

The Central Pollution Control Board has also prescribed a code of practice for
controlling noise from sources other than industries and automobiles.

THE MADRAS CITY POLICE ACT, 1888:

Section 71 (XX) of the Madras City Police Act, 1888 prohibits playing music, beating
tom-tom, etc. in public places. The section reads as follows:

“who ever beat a drum or tom-tom, or blow a horn or trumpet, or beats or sound any
brass or other instrument or utensil, except at such times and places and subject to such
conditions as shall from time to time be allowed by the Commissioner”, “… shall be liable on
conviction to fine not exceeding two hundred and fifty rupees or to imprisonment which may
extend to three months.”

THE NOISE POLLUTION (REGULATION AND CONTROL) RULES, 2000:

These rules were made by the Ministry of Environment and Forests and notified through a
notification dated 14th February 2000. This notification was made with the object of
maintaining Ambient Air Quality Standards in respect of noise.

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 It was made especially to reduce the increasing ambient noise levels in public places from
various sources like industrial activity, construction activity, generator sets, loud speakers,
public address systems, music systems, vehicular horns and other mechanical devices which
causes a deleterious effects on human health and the psychological well being of the people.

These rules have authorized the Central Government and the State Governments and
more specifically the District Magistrate, Police Commissioner or any other officer not below
the rank of the DSP designated for the maintenance of the ambient air quality standards in
respect of noise to implement these rules.

1. Industrial area – Day time 75 – Night time 70 dB

2. Commercial area – Day time 65 – Night time 55 dB

3. Residential area – Day time 55 – Night time 45 dB

4. Silence zone – Day time 50 - Night time 40 dB

These rules have imposed a responsibility on the State Government to categories the areas
into industrial, residential or silence areas / zones for the purpose of implementation of noise
standards for different areas.

It also imposes responsibility on the Sate Government to take all measures for abatement
of noise and to ensure that the existing noise levels do not exceed the standards specified
above.

It also imposes responsibility on all development authorities, local bodies and other
concerned authorities to take into consideration all aspects of noise pollution as a parameter
of quality of life while planning developmental activity or carrying out functions relating to
town and country is planning.

An area comprising not less than 100 meters around hospitals, educational institutions
courts religious places or any other area may be declared as silence zone for the purpose of
these rules, by competent authority.

These rules specifically prohibit the use of loud speaker or a public address system
without obtaining written permission from the authorities.

It also prohibits the use of a loud speaker or the public address system at night (between
10 p.m. to 6 a.m.) except in closed premises for communication within, e.g. auditoria,
conference rooms, community-halls and banquet halls.

These State Government may subject to such terms and conditions as are necessary to
reduce pollution, permit use of loud speakers or public address systems during night hours
(between 10.00 p.m. to 12.00 midnight) on or during any cultural or religious festive occasion
of a limited duration not exceeding fifteen days in all during a calendar year

With respect to silence zones, the following acts are prohibited:-

1. Playing any music or using any sound amplifier;

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 2. Beating a drum or tom-tom or blowing a horn either musical or pressure, or trumpet or
beating or sounding any instrument;

3. Exhibiting any mimetic, musical or other performances to attract crowds.

Any person may make complaint to the authority if the noise level exceeds the standards
by 10 dB (A) and the authority shall act on the complaint and take action against the violator
in accordance with the provisions of these rules and any other law in force.

If the authorities satisfy from the report of an Officer in-charge of a Police Station or
other information received by him, he may by written order issue such directions as he may
consider necessary to any person for preventing, prohibiting, controlling or regulating :-

1. The incidents on continuance in/or upon any premises of _

(a) any vocal or instrumental music,

(b) Sounds caused by playing, beating, clashing, blowing, or use in any manner
whatsoever of any instrument including loud speaker, public address system, appliance or
apparatus or contrivance which is capable of producing or reproducing sound, or

2. The carrying on in/or upon any trade, avocation or operation or processes resulting in
are attended with noise.

In Church of God (Full Gospel) In India Vs. K.K.R Majestic Colony Association the
Appellant is the Church of God located at K.K.R Nagar, Madavaram, Chennai. It has a prayer
hall for the Pentecostal Christians and is provided with musical instruments such as drum set,
triple gango, guitar, etc., The respondent (K.K.R Majestic Colony Welfare Association) filed
a criminal O.P. before the High Court of Madras for a direction to the authorities
(Superintendent of Police and Inspector of Police) to take action on the basis of the latter
issued by the Joint Chief Environmental Engineer of the Tamil Nadu Pollution Control
Board. In the High Court it was contended by the church that the petition was filed with an
oblique motive in order to prevent a religious minority institution from pursuing its religious
activities and the court cannot issue any direction to prevent the church from practicing its
religious beliefs. The High Court directed the church to take necessary steps to bring down
the noise level by keeping the speakers at a lower level.

Aggrieved by the said order this appeal was filed by the church. The questions involved
in this appeal are in a country having multiple religions and numerous communities or sects,
whether a particular community or sect of that community can claim right to add to noise
pollution on the ground of religion? Whether beating of drums or reciting of prayers by use of
microphones and loudspeakers so as to disturb the peace or tranquility of neighborhood
should be permitted? The Court held that “undisputedly no religion prescribed that prayers
should be performed by disturbing the peace of others. Nor does it preach that they should be
through voice amplifiers or beating of drums. In our view, in a civilized society in the name
of religion activities which disturb old or infirm persons, students or children having their
sleep in the early hours or during day time or other persons carrying on other activities cannot
be permitted…” The Supreme Court while dismissing the appeal observed that “in the

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present case, the contention with regard to the rights under Article 25 or 26 of the
Constitution which are subjects to ‘public order, morality and health’ are not required to be
dealt with in detail mainly because… no religion prescribes or preaches that prayers are
required to be performed through voice amplifiers or by beating of drums.

In any case if there is such practice, it should not adversely affect the right of others
including of that of being not disturbed in their activities.”

UNIT – XIV

LAND POLLUTION – LAW RELATING TO MANAGEMENT OF WASTES

Land is the most of all natural resources of any region, which not only provides the basis
for economic activity but also is the main factor for the very existence and development of
the community.

Required for agriculture, aforestation, housing, industry, commerce, and for many other
purposes, this resource following burgeoning population, rapid industrialization, urbanization
and other human activities has come under a tremendous pressure.

The process of modernization and imprudent land use is causing degradation and
pollution of this resource.

The term ‘Land Pollution’ cannot be defined comprehensively due to the factor that there
are various types and levels of pollution. Viewed from different perspectives land pollution
may be regarded as the de-spoilation of the urban and rural scene, disruption of natural
landscape surface by any human activity; dereliction of land, or chemical contamination of
land. With the changing standards about the very conception of pollution, an objective
definition of land pollution is “any physical or chemical alteration to land which causes its
use to change and render it incapable of beneficial use without treatment”.

Alternatively, land pollution can be stated as ‘misuse of land’ disuse of land and
chemical contamination of land’. Interestingly the expression ‘land pollution’ has not been
defined in any statute specifically.

However land is recognized as an important component of ‘environment’ as defined in

section 2(a) of the Environmental Protection Act, 1986.

SOURCES OF LAND POLLUTION:

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Land pollution usually results from:

(1) the dumping and improper disposal of industrial and municipal solid wastes and;

(2) by the semi-solid wastes resulting from agricultural practices.

Dumping of industrial and municipal solid waste causes toxic materials to be leached and
to seep into the soil which not only very seriously affects the productivity of the land but also
the purity of life saving ground water resource. Disposal of industrial solid wastes is a major
source of land pollution by toxic chemicals.

Industrial wastes are mainly discharged from certain types of industries like mining
industries (coal & mineral mining), metal processing, chemical and engineering industries.

These wastes contain toxic materials, which can cause a host of public health problems,
directly or indirectly.

The Municipal solid wastes comprise of both commercial and domestic wastes including
dried sludge of sewage. In general, the municipal solid wastes, are referred to as ‘refuse’. The
refuse contains garbage including food wastes, rubbish materials such as waste papers,
glasses, metallic cans, plastic carry bags and plastic materials, etc.

Apart from the above, hazardous wastes are also generated at houses. Items like aerosol
cans, batteries from torch lights and other electronic gadgets, bleaches, chemicals and
solvents and their empty containers, light bulbs, tube lights, discarded medicines, paints, oils,
and their empty containers, pesticides, herbicides and their empty containers, Styrofoam and
soft foam packaging, etc.

Waste generation ranges from 200 gms to 500 gms per capita per day in cities ranging
from one lakh to over 50 lakhs population. The larger the city, the higher is the per capita
waste generation rate. The total waste generation of urban areas in the country is estimated to
be around 39 million tons.

The modern agricultural practices also contribute towards land pollution. Since
agriculture is becoming more and more intensive, large quantities of fertilizers, pesticides,
herbicides and other soil conditioners are being used. Though fertilizers, pesticides,
herbicides and other soil conditioners are being used. Though fertilizers are used to fortify
soil, they contaminate the soil to some extent.

There is every possibility that the nitrates are washed out due to the careless application
of fertilizers, which may adversely affect the water bodies in, and around. The chemicals
used in the fertilizers contaminate the ground water too.

The indiscrete uses of pesticides like DDT, BHC, Endrin, and other types of pesticides
contaminate the soil.

In addition to pesticides and fertilizers, soil conditioners and fumigants are use in
agriculture. This chemical agent causes alterations in the physical, chemical and biological
properties of soil.

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 Radioactive materials from atmospheric fall out in nuclear explosions, radioactive
materials emitted by nuclear implosions and the radioactive waste from nuclear testing
laboratories, industries and power plants pollutes the land.

Wastes from nuclear reactors containing radioactive materials like Ruthanium – 106,
Rhodium – 106, Strontium – 90, Caesium – 137, are produced as a result of nuclear fission.
Rain causes strontium – 90 and caesium – 137, to be deposited on the soil where it is held
firmly by electrostatic forces.

Heavy rains and soil erosion carry these away with silt and clay. A recent report
indicated that certain plants such as lichen, can accumulate caesium – 137 and a
concentration of radio nuclides in animals occurs when these plants are fed. All the
radionuclides deposited on the soil emit gamma radiation.

The excreta of humans, animals and birds are yet another source of land pollution by
biological agents.

Digested sewage sludge, which is used as manure also contributes towards land
pollution. In addition to excreta, faulty sanitation, accumulation of wastewater also induces
land pollution.

EFFECTS OF LAND POLLUTION:

Improper solid waste management gives rise to problems of health, sanitation and
environmental degradation. WHO studies have indicated that 22 diseases are directly linked
to improper solid waste management practices. Rodents and vector insects transmit various
diseases like dysentery, cholera, plague, typhoid, infective hepatitis, and others.

Apart from these, people are exposed to high health risks and frequently suffer from
respiratory tract infections, gastrointestinal parasites and worms.

Unscientific disposal of waste also pollutes ground water resources with heavy metal and
other contaminants through leachate, which poseserious problems of environmental
deterioration and health risk.

SOLUTION FOR PROBLEMS CAUSED BY LAND POLLUTION:

Solid waste management systems adopted in Indian cities are highly inefficient and
outdated, lacking public participation.

Overall public apathy is observed in the matter of handling and disposal of municipal
waste.

A system of throwing garbage on the streets by citizens and local bodies collecting the
waste from the street and disposing of it in the most unhygienic manner is in vogue.

These systems can be corrected by taking concerted measures involving the public at
large through their active participation in the process, and by local bodies performing their
duties effectively.

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 Various laws enacted by their respective states govern local bodies in the country.

Many state laws governing urban local bodies do not have adequate provision for
ensuring appropriate solid waste management system with the result that out dated systems
continue to affect the quality of life of the people. For improving solid waste management
practices in urban areas it was felt necessary to incorporate suitable provision to ensure public
participation.

With these objects in mind the ministry of Environment and Forest had under the powers
conferred on it by the Environment Protection Act, 1986, has notified three important rules to
regulate the practice of managing and handling hazardous waste, bio-medical waste and
Municipal Solid Waste.

HAZARDOUS WASTE (MANAGEMENT AND HANDLING) RULES, 1989 AS

AMENDED IN 2000:

The Hazardous Waste Rules applies to Management and Handling of 18 categories of

wastes like:

1. Cyanide waste;

2. Metal finishing wastes;

3. Wastes containing water soluble chemical compounds of lead, copper, zinc,

chromium, nickel, selenium, barium and antimony;

4. Mercury, Arsenic, Thallium and cadmium bearing wastes;

5. Non-halogenated hydro carbons including solvents;

6. Halogenated hydro carbons including solvents;

7. Wastes from paints, pigments, glue, varnish and printing ink;

8. Wastes from Dyes and dye-intermediates containing inorganic chemical compounds;

9. Wastes from Dyes and dye-intermediates containing organic chemical compounds;

10. Wastes oil and oil emulsions;

11. Tarry wastes from refining and tar residues from distillation or pyrolytic treatment;

12. Phenols;

13. Sludge arising from treatment of waste water containing heavy metals, toxic organic,
oils, emulsions and spent chemical and incineration ash;

14. Asbestos;

15. Wastes from manufacturing of pesticides and herbicides and residues from pesticides
and herbicides formulations units;

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 16. Acid/Alkaline/slurry wastes;

17. Off specification and discarded products;

18. Discarded container and container liners of hazardous and toxic chemicals and
wastes.

The Notification directs the occupier generating hazardous wastes to take all practical
steps to ensure that such wastes are properly handled and disposed of without any adverse
effects.

He shall also be responsible for proper collection, reception, treatment, storage and
disposal of these wastes either himself or through the operator of facility.

BIO-MEDICAL WASTES (MANAGEMENT AND HANDLING) RULES, 1998.

The Bio-medical waste (Management and Handling) Rules, 1998 was made by the
Ministry of Environment and Forests and notified through a notification dated 20th July 1998.
These rules ware made applicable to all persons, who generate, collect, receive, store,
transport, treat, dispose or handle bio-medical wastes in any form.

“Bio-medical waste” means any waste, which is generated during the diagnosis, treatment
or immunization of human beings or animals or in research or in research activities pertaining
thereto or in the production or testing of biologicals.

“Biologicals” means any preparation made from organisms or microorganisms or

product of metabolism and bio-chemical reaction intended for use in the diagnosis,
immunization or the treatment of human being or animals or in research activities pertaining
thereto.

For the purpose of these rules, an “occupier” in relation to any institution generating bio-
medical waste, which includes the hospital, nursing home, clinic, dispensary, veterinary
institution, animal house, pathological laboratory, blood bank by whatever name called,
means a person who has control over that institution and or its premises.

These rules prescribes that it shall be the duty of every occupier of an institution
generating bio-medical waste to take all steps to ensure that such waste is handled without
any adverse effect on human health and the environment.

BIO-MEDICAL WASTES AND TREATMETN:

1. Human Anatomical Waste (Human tissues, organs, body parts) – Incineration or deep
burial.

2. Animal waste (Animal tissues, organs, body parts, carcasses, bleeding parts, fluid,
blood and experimental animals used in research, waste generated by veterinary hospitals and
colleges, discharge from hospitals, animals houses) - Incineration or deep burial.

3. Microbiology and biotechnology waste (waste from laboratory cultures, stocks or

specimens of microorganisms, live or attenuated vaccine, human and animal cell culture used

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in research and industrial laboratories, waste from production biologicals, toxins, dishes and
devices used for transfer of cultures - Local autoclaving or microwaving or incineration.

4. Waste sharps (needles, syringes, scalpels, blades, glass, etc. that may cause
disinfection, puncture and cuts. This includes both used and unused sharps) – Chemical
treatment or autoclaving or microwaving and mutilation / shredding

5. Discarded medicines and cyto toxic drugs (wastes comprising of outdated,

contaminated and discarded medicines) – Incineration or destruction and disposal in secured
landfills.

6. Solid waste (items contaminated with blood and body fluids including cotton, dressing,
soiled plaster casts, bedding and other materials contaminated with blood) – Incineration or
autoclaving or microwaving.

7. Solid waste (wastes generated from disposable items other than the waste sharps such
as tubing, catheters, intravenous sets, etc) – Disinfection by chemical treatment or
autoclaving or microwaving and mutilation or shredding.

8. Liquid waste (waste generated from laboratory and washing, cleaning, housekeeping
and the disinfecting activities) – Disinfection by chemical treatment and discharge into
drains.

9. Incineration ash (ash from incineration of any bio-medical waste) – Disposal in

municipal landfills.

10. Chemical waste (chemicals used in production of biologicals, chemicals used in

chemical disinfection as insecticides, etc.) – Chemical treatment and discharge into drains for
liquids and secured land fill for solids.

THE MUNICIPAL SOLID WASTES (MANAGEMENT AND HANDLING) RULES,

2000:

Dr. B.L. Wadehra v. Union of India AIR 1996 SC 2969 is a petition under Article
32 of the Constitution of India, the petitioner an advocate of this Court – has sought
directions to the MCD and NDMC to perform their statutory duties in particular the
collection, removal and disposal of garbage and other waste.

The Court after referring to Articles 21, 48A and 51 A (g) of the Constitution of India
and other relevant provisions of the Delhi Act observed, “Historic city of Delhi – the Capital
Of India – is one of the most polluted cities in the world. The authorities, responsible for
pollution control and environment protection, have not been able to provide clean and healthy
environment to the residents of Delhi. The ambient air is so much polluted it is difficult to
breathe. More and more Delhi-ites are suffering from respiratory-diseases and throat-
infections. River Yamuna – the main source of drinking water supply – is the free dumping-
place for untreated sewage and industrial waste. Apart from Air and Water pollution, the city
is virtually an open dust-bin. Garbage strewn all over Delhi is a common sight.

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 The Municipal Corporation of Delhi (the MCD) constituted under the Delhi
Municipal Corporation Act, 1957 (Delhi Act) and New Delhi Municipal Council Act, 1994
(New Delhi Act) are wholly remiss in the discharge of their duties under law. It is no doubt
correct that rapid industrial development, urbanization and regular flow of persons from rural
to urban areas have made major contribution towards environmental degradation but at the
same time the authorities entrusted with the work of pollution control cannot be permitted to
sit back with folded hands on the pretext that they have no financial or other means to control
pollution and protect the environment.

LANDFILL SITES SELECTIONS:

1. In areas falling under the jurisdiction of Development Authorities, it shall be the

responsibility of such Development Authorities to identify the landfill sites and hand-over the
sites to the concerned municipal authorities for development, operation and maintenance.
Elsewhere, this responsibility shall lie with the concerned municipal authority.

2. Selection of landfill sites shall be based on examination of environmental issues.

The Department of Urban Development of the State or Union Territory shall coordinate with
the concerned organizations for obtaining the necessary approvals and clearances.

3. The landfill site shall be planned and designed with proper documentation of a
phased construction plan as well as a closure plan.

4. The landfill sites shall be selected to make use of nearby waste processing facility.
Otherwise, wastes processing facilities shall be planned as an integral part of the landfill site.

5. The existing landfill sites which continue to be used for more than 5 years shall be
improved in accordance with these specifications.

6. Biomedical wastes shall be disposed of in accordance with the biomedical wastes

(management and handling) rules, 1998 and the hazardous wastes shall be managed in
accordance with the hazardous wastes (management and handling) rules, 1989, as amended
from time to time.

7. The landfill site shall be large enough to last for 20-25 years.

8. The landfill site shall be away from habitation clusters, forest areas, water bodies,
and monuments, national parks, wet lands and places of important cultural, historical or
religious interest.

9. A buffer zone of no-development shall be maintained around landfill site and shall
be incorporated in the Town Planning Department’s land-use plans.

10. Landfill site shall be away from Airport including Airbase. Necessary approval of
Airport or Airbase authorities prior to the setting up of the landfill sites shall be obtained in
cases where the site to be located within 20 km. of an Airport or Airbase.

POLLUTION PREVENTION:

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 In order to prevent pollution problems from landfill operations, the following
provisions shall be made, namely:-

1. Diversion of storm water drains to minimize leachate generation and prevent pollution
of surface water and also for avoiding flooding and creation of marshy conditions;
2. Construction of a non-permeable lining system at the base and walls of waste
disposal area;
3. Provisions of management of leachate collection and treatment shall be made;
4. Prevention of run-off from landfill area entering any stream, river, lake or pond.

CLOSURE OF LANDFILL SITE AND POST CARE:

The post-closure care of landfill site shall be conducted for atleast 15 years and long
term monitoring or care plan shall consist of the following:-

(a) Maintaining the integrity and effectiveness of the final cover, making repairs and
preventing run-on and run-off from eroding or otherwise damaging the final cover;
(b) Monitoring leachate collection system in accordance with the requirement;
(c) Monitoring of ground water in accordance with requirements and maintaining ground
water quality;
(d) Maintaining and operating the landfill gas collection system to meet the standards.

Use of closed landfill sites after 15 years of post-closure monitoring can be considered for
human settlement or otherwise only after ensuring that gaseous and leachate analysis comply
with the specified standards.

UNIT - XV

GROUND WATER POLLUTION

INTRODUCTION:

Water is one of the most valuable natural resources of earth, without which mankind
cannot survive. It is a finite resource, which means that the total amount of water available is
limited.

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 Earth is estimated to have 1400 million cubic kilo-meters of water of which 97.3% is salt
water in the oceans and 2.7% is fresh water.

Of the fresh water that is available a major portion of it (75%) is frozen in the Polar
Regions.

Of the remaining 25% of fresh water, groundwater constitutes 23% and surface water
forms a meager 2%.

Surface water is water that is visible above the ground surface, and flows in streams and
rivers, and in natural lake, in wet lands and in reservoirs constructed by humans.

The Madras Metropolitan Area Groundwater (Regulation) Act, 1987, has defined
groundwater as “the water which exists below the surface of the ground”.

Water is important for sustenance of human civilization. Any efforts towards the
management of this precious resurce are a service to the mankind. Groundwater plays an
important role in meeting a substantial part of the domestic, agricultural and industrial needs
in our country. In the recent years the uncontrolled exploitation of this limited but
replenishable resource has caused environmental degradation which calls for the need to
adopt appropriate management practices.

The main source of ground water is rainfall. The rainwater that percolates trough the
rocks cannot go down to very great depth. Usually there is limit to the down ward percolation
or water. The amount of water to be soaked by the earth depends upon the nature of rocks or
sediments. On the basis of the relation that rocks or sediments bear to the percolation of
water, this may be divided into two categories. One is pervious rocks that allow water to pass
through them and second is the impervious rocks that do not allow water to pass through
them.

It is well known that occurrence and storage of ground water is governed by three
important factors namely Geology, Topography and climate in the form of precipitation.
Apart from the Geology, there are wide variatioin topography settings and in the quantum
and duration of rainfall, which constitutes the principal recharge of ground water. The ground
water availability is almost universal. However, not always in extractable quantities. Its
occurrence at any place on earth is not a matter of chance but a consequence of the
interaction of climatic, geologic, hydrologic, physiographic and ecological factors.

FACTORS RESPONSIBLE FOR DEPLETION OF GROUND WATER RESOURCE:

Over the years, people have witnessed a lot of problems due to over exploitation of
ground water.

This is due to various factors like industrialization, urbanization, green revolution, growth
in population, technological advancements, water markets, notion of priority of use, policy
intervention, crop patterns ect.

India has a varied hydrological setting. The present ground water use is not uniform
throughout India. While the advancement of modern civilization has created greater needs for

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using more and more water in intensive and extensive cultivation, hectic industrial production
and increased domestic urban and commercial activities, it has also created new techniques of
effectively abstracting ground water from a deeper level and in very huge quantity. Easiness
to drill bore wells, bore wells are drilled in umpteen numbers and centrifugal pumps are used
to abstract ground water quickly and in greater quantity.

Easiness to drill bore wells, ability to extract form deeper levels, no hassles of constant
maintenance to keep the sides from collapsing have created a big demand for bore wells. As a
result, the stress on the ground water has been very drastic in the present century after making
extensive use of consumable surface water.

Our model of development, which relies so heavily on industrialization, naturally attracts

migration from rural areas into the urban areas and as a result there is an exponential growth
in urban centers of India.

Naturally, this generates unnatural pressure on civic amenities out of which water is in
great demand.

The entrenched view of ground water as a private resource has led to the wide spread
development of ground water market.

The rapid growth of urban areas with poor municipal services has created market for
drinking water even in relatively water rich regions.

For example in Gujarat, well owners commonly sell well frequently sell water to others in
need of it. In Tamil Nadu ground water in areas adjacent to Chennai is pumped and sold in
the city.

Those living in semi urban areas that own wells or other water resources supply these
markets. The issue of their right to sell the water is rarely questioned in the day to day
transaction involved in meeting local needs.

THE CENTRAL GROUNDWATER AUTHORITY:

The Central Groundwater Authority, with a view to regulate indiscriminate boring and
withdrawal of groundwater in the country and to issue necessary regulatory directions with a
view to protect and preserve ground water, has made the rules called “The Groundwater
(Development and Protection) Rules, 1998 in exercise of the powers conferred by sections 6
and 25 of the Environment (Protection) Act 1986. These rules shall be applicable to the
following specific aspects/cases:

1. Extraction of groundwater for any use, except for drinking and domestic purposes and
matter connected therewith.
2. Clearance of well construction.
3. Pumping of groundwater within limits laid by the authority.
4. Planning and implementation of projects for enhancing recharge of groundwater.
5. Reassessment of ground water resources as per directions of the authority.
6. Performance of business of drinking of wells.

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 7. Sale of groundwater.
8. Registration of ground water abstraction structures.
9. Supply of data on demand on the structure, pumping and use of ground water.
10. Management of groundwater in coastal aquifers.
11. Clearance of solid and liquid waste disposal sites.
12. Clearance for setting up groundwater based industries.
13. Conservation and artificial recharge of groundwater including roof top run off
harvesting and storm water recharge etc.
14. Degradation in quality of groundwater on account of groundwater extraction.

Under these rules “Groundwater” is defined to mean “the water existing in aquifers
beneath the ground surface or discharged from below the ground surface on the earth or
rivers.

FUNCTIONS OF CENTRAL GROUND WATER AUTHORITY:

The Central Groundwater Authority is conferred with the following functions:

1. Notifying areas for the protection and conservation of groundwater from pollution and
depletion.
2. Regulating construction of wells, bore wells, tube wells, and any other groundwater
abstraction structure.
3. Issuing of guide lines for conservation of groundwater.
4. Give directions for re-circulation of water in industry including hotel, tourism and
related areas.
5. Issue directions for the protection groundwater consequent to human interference in
natural processes.
6. Promulgate directions for monitoring the behavior of groundwater system and quality
regime.
7. Formulate guidelines for augmenting groundwater recharge, conservation of water
using rooftop and storm run off.
8. Technical clearance of scheme by the State Governments, financial and other
agencies.
9. Issue guidelines for maintenance of ground water levels at minimum depth, below
ground, in different areas.
10. Issue directions and take measures for the implementation of the above guidelines
and all matters considered relevant in this connection.
11. Formulate and issue guidelines for data collection and setting up of information
centers at various levels.
12. Recommend norms for the allocation of groundwater for various subsectoral uses like
domestic, irrigation and industry and suggest inter-superiorities.
13. Issue directions for the identification and monitoring of groundwater vulnerable areas.
14. Issue directions for the control of wastage of water in artesian wells.

The rules provide for the grant of permit to extract and use groundwater in an area and
also for the registration of existing users. The rules prohibit the carrying on of the business of

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sinking of wells without permission from government. It also provides for recharge and reuse
of surplus monsoon run off. The rules empower the Central Ground Water Authority to enter,
inspect, take specimen, search, and to exercise such other powers as may be necessary for
carrying out the purposes of the Environment (Protection) Act or any rules made there under.
The rules prescribe offences and penalties for contravention.

MADRAS METROPOLITAN AREA GROUNDWATER (REGULATION) ACT, 1987

The Government of Tamil Nadu enacted the Madras Metropolitan Area Groundwater
(Regulation) Act, 1987 for the following objects.

1. To regulate and control the extraction, use or transport of groundwater; and

2. To conserve groundwater in certain areas in the State of Tamil Nadu.

The Madras Metropolitan Area Groundwater (Regulation) Act, 1987 extends to the whole
of city of Madras and certain revenue villages in the Chengalpattu District, Kancheepuram
District and Thiruvallur District specified in the schedule to the Act.

Section 3 of the Madras Act directs that “no person shall sink a well in the scheduled
area unless he has obtained a permit in this behalf from the competent authority”. ‘well’ is
defined in Section 2(I) to mean a well sunk for the purpose of searching or extracting ground
water and includes an open well, dug well, bore well, dug-cum-bore well, tube well, filter
point or any contrivance which when installed, could be utilized for extracting groundwater.
The ‘competent authority’ referred above shall be the Chennai Metropolitan water Supply
and Sewerage Board in the city of Chennai and in relation to the villages specified in the
schedule, the District Collector or any Officer not below the rank of Tahsildar, authorized by
the Government in this behalf.

The Madras Act also provides for the Registration of existing well in the scheduled area.
Section 5 provides that “no person shall extract or use ground water in the scheduled area for
any purpose other than domestic purposes”.

It further directs that “no person shall transport groundwater by means of any lorry, trailer
or any other goods vehicle”.

If any person desires to extract or use groundwater then he shall make an application to
the competent authority for the grant of license for such extraction, use or transport.

Section 10 of the Madras Act prescribes punishment for contravention of any provision of
this Act or for failure to comply with any of the provisions of this Act or the rules made
under this Act. The punishment prescribed for contravention or failure to comply with any of
the provisions of the Act, shall be fine, which may extend to Rs. 500 for the first offence. For
the second or any subsequent offence, the offender shall be punished with imprisonment for a
term which extend up to 6 months or with fine which may extend to Rs. 1000 or with both.

Section 12 of the Madras Act makes the offence punishable under this Act as a
cognizable offence within the meaning of the Code of Criminal Procedure, 1973. If further
provides that “no court shall take cognizance of any offence punishable under this Act,

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except upon a complaint in writing by the competent authority or an officer generally or
specially authorized by the Government in this behalf”.

The Government of Tamil Nadu has authorized the Managing Director of CMWSSB for
Chennai and the Collectors of Chengal Pattu, Kancheepuram and Tiruvallur in respect of
villages specified in the Schedule to the said Act coming under the districts of Chengal Pattu,
Kancheepuram and Tiruvallur.

THE TAMIL NADU GROUNDWATER (DEVELOPMENT AND MANAGEMNT)

ACT, 2003:

The Tamil Nadu Government enacted the Tamil Nadu Groundwater (Development
and Management) Act, 2003 to attain the following objectives:

1. To protect groundwater resources

2. To provide safeguards against hazards of it over exploitation; and
3. To ensure it’s planned development and proper management in the State of Tamil
Nadu.

This law extends to the whole of the State of Tamil Nadu except the areas to which the
Chennai Metropolitan Area Groundwater (Regulation) Act, 1987 extends. The Act confers
power on the State Government to develop, control, regulate and administer the groundwater
in the State. The Act also confers power on the Tamil Nadu Ground Water Authority to direct
and regulate the development and management of groundwater resources in the State
consistent with conserving it and ensuring its optimal and efficient utilization.

MEMBERS OF GROUNDWATER AUTHORITY:

The Tamil Nadu Groundwater authority shall consist of the following members
nominated by the Government:

1. An officer of the Government, who shall also be the chairman;

2. Two representatives of different departments, concerned with groundwater
exploration;
3. One person having special knowledge or practical experience in matters relating
to groundwater;
4. One full time technician in the rank of chief engineer, public works department,
who shall also be the member secretary.

The groundwater authority may declare any as notified area for developing
groundwater or to regulate the extraction or use of groundwater in any form in such area.

POWERS OF THE TAMIL NADU GROUNDWATER AUTHOURITY:

Section 18 provides that, for carrying out the purposes of the Tamil Nadu
Groundwater (Development and Management) Act, 2003, the groundwater authority or any
person authorized by it shall have the following powers:

1. To enter upon any property or collection of data pertaining to the land or water;

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 2. To inspect any well which is sunk or being sunk and the soil groundwater or other
materials excavated there from;
3. To take specimen of such soil, groundwater or other materials;
4. To require in writing any person sinking a well to preserve in the prescribed manner,
specimens of soil, groundwater or any material excavated there from for a period not
exceeding one month from the date of completion or abandonment of the work;
5. To inspect and take copies of the relevant records or documents and seek any
information pertaining to the well as may be required.
6. To serve or cause to be served a notice requiring any person using groundwater to
furnish such information as required in such form, at such intervals and with such
particulars as may be prescribed;
7. To require in writing any person using groundwater to install measuring devices on
any groundwater supplies;
8. To seize and take possession of any equipment utilized for unauthorized sinking;
9. To require in writing any person using groundwater who does not comply with the
provisions of the Act to cease to extract groundwater or dismantle any hydraulic
structure found to be unauthorized or direct the Tamil Nadu Electricity Board it
enforce the provision of section 16;
10. To enter and search at all reasonable times any premises in which it has reason to
believe that an offence under this Act has been or is being committed and order in
writing to the person who has committed or who is committing the offence not to
extract or use the groundwater without obtaining a permit;
11. To break open the door or any premises where such sinking, extraction or use of
groundwater is going on.

OFFENCES AND PENALTIES:

Any person who contravenes or fails to comply with any provisions of this act or
sinks well in notified areas without the permit or obstructs the authority to exercise any of the
powers under this Act, or refusing to furnish required information or furnishes false
information he shall be punishable for the first offence with fine which may extend to 1000
rupees; for the second and subsequent offences with fine which may extend to 2000 rupees;
and in respect of continuing contravention he shall be punishable with fine which fine which
may extend to 500 rupees for every day during which such contravention continues. Any
offence punishable under this Act shall be cognizable offence and Section 24 of the Act
provides that no court shall take cognizance of any offence punishable under this Act, except
upon a complaint in writing by the authority or an officer generally or specially authorized by
it in this behalf.

BAR OF JURISDICTION OF CIVIL COURTS:

Section 26 of the Act provides that “no order passed decision or action taken or
direction issued under this Act or the rules made under this Act shall be called in question in
any civil court and no injunction shall be granted by any court in respect of any action taken
or to be taken by the Government or the authority or any officer or employee in pursuance of
any power conferred under this Act”.

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 UNIT – XVI

LAW RELATING TO CONSERVATION OF FOREST AND WILD LIFE

INTRODUCTION:

Etymologically the word “Forest” is derived from a Latin word “Foris” meaning out-of-
doors; probably including that outside the dwelling house during the primitive days, there
was everywhere dense growth wild nature.

The Allahabad High Court in Yashwant Stone Works v. State of U.P. AIR 1988, while
dealing with the Forest Conservation Act has held that the word “forest” has not been defined
in the Act. Hence, the Court adopted the definition given by Food and Agriculture
Organization (FAO). The FAO has defined “forest” as “all lands bearing vegetative
association demarcated by trees of any size exploited or not, capable of producing wood or
other forest products, of exerting an influence on the climate or on the water regime or
providing shelter for livestock and wild life”. The Court further relied on Encyclopedia
Britannica where it was described as “a community technically known as eco-system in
which trees are dominant form of vegetation but in which other plants, animals, soil and the
area all play an important role…”

Prior to the British rule in India, use of forest area and forest produce was regulated by
local customary practices. People during those days resorted to sustainable use of forest
resources and there was no charge of exploitation. After the advent of British rule in India,
there was a change in attitude and perception about the use of forest resources. Britishers
viewed the forest as an important resource to be exploited. Hence the customary regulations
of people of India were replaced with the Forest Act of 1865. This act aimed at the
“regulation of forest exploitation, management and preservation of forest resources”. The act
has also dealt with people’s right over forest lands and produces and regulated the collection
of forest produce by forest dwellers.

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 The Act was, applicable only to the government forests and private forest was kept out
of it. The Forest Act of 1878 classified the forest under state control into different classes. It
also enhanced the government control over the forest. This Act was more comprehensive than
the earlier one and it included certain provisions for private forests. Then came the Indian
Forest Act of 1927, which provides for preservation of forest and promotion of forest produce
and collection of revenues. It prescribed manner and limits within which forest resources
could be exposed to industrial and commercial exploitation within the framework of an
overall forest management. Subsequently, through the Government of India Act of 1935, the
subject of ‘forests’ was included in the provincial list. Thereafter several provinces made
their own laws to regulate frosts within the framework laid down in the 1927 Act.

THE INDIAN FOREST ACT 1927

The Indian Forest Act, 1927 was enacted after repealing the Indian Forest Act, 1878
for the purpose of consolidating the law relating to forest, the transit of forest produce and the
duty leviable on timber and other forest produce. The Indian Forest Act was enacted to
preserve and safeguard the forest in India.

Section 2 of the Indian Forest Act, 1927 provides definitions for terms like cattle,
forest officer, forest offence, forest produce, owner, river, timber and tree. The word “cattle”
includes “elephants, camels, buffaloes, horses, mares, geldings, ponies, colts, fillies, mules,
assess, pigs, rams, ewes, sheep, lambs, goats and kids”.

“Forest produce” includes;

(a) The following whether found in or brought from a forest or not that is to say –
timber, charcoal, caoutcouc, catechu, wood-oil, resin, natural varnish, bark, lac,
mahua flowers, mahua seeds, kuth and myrobalans; and
(b) The following when found in or brought from, a forest, that is to say –
(1) Trees and leaves, flowers and fruits, and all other parts are produce not herein
before mentioned, of trees,
(2) Plants not being trees (including grass, creepers, reeds, and moss) and all parts
are produce of such plants,
(3) Wild animals and skins, tusks, horns, bones, silk cocoons, honey and wax, and
all other parts or produce of animals, and
(4) Peat, surface soil, rock and minerals (including limestone, laterite, mineral oils
and all products of mines or quarries.

‘Timber’ includes trees when they have fallen or have been felled, and all wood
whether cut up or fashioned or hallowed out for any purpose or not; and ‘tree’ includes
palms, bamboo, skumps, brush-wood and canes.

POWRER TO RESERVE FORESTS:

The State Government may constitute a reserved forest by issuing a notification in the
official gazette. The State Government may declare any forestland or wasteland, which is the
property of the Government or any land over which the Government has proprietary rights, as
reserved forest. The Notification issued by the State Government shall specify the situation
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and limits of the reserved forest area. An officer called the ‘Forest Settlement Officer’ is
appointed through the Notification, to enquire into and determine the existence, nature and
extent of any rights alleged to exist in favor of any person in or over any land comprised
within such limits or in or over any forest produce and to deal with the same as provided in
the Act.

ACTS PROHIBITED IN RESERVED FOREST:

The following activities are prohibited in the reserved forest area:

1. Clearing of forest for cultivation or for any other purpose;

2. Setting fire to a reserved forest or kindling any fire or leaving any fire burning, in
such manner as to endanger such a forest;
3. Kindling, keeping or carrying any fire;
4. Trespassing or pasturing cattle or permitting cattle to trespass;
5. Causing any damage by negligence in felling any tree or cutting or dragging any
timber;
6. Felling, gridling, loping or burning any tree or striping off the bark or leaves from
any tree or otherwise damaging any tree;
7. Quarrying stone, burning lime or charcoal or collecting or removing any forest
produce;
8. Clearing or breaking up any land for cultivation or for any other purpose;
9. Hunting, shooting, fishing, poisoning water or setting traps or snares;
10. Killing or catching elephants.

Any person, who commits any or all of the above prohibited acts, shall be punishable
with imprisonment for a term which may extend to 6 months or with fine which may extend
to Rs. 500/- or with both in addition to such compensation for damage done to the forest as
the convicting court may direct him to pay.

FORMATION OF VILLAGE FORESTS:

The State Government may assign to any village community the rights of the
Government over any land, which comes under a reserved forest area. These forests assigned
to a village community are called ‘Village Forests’. The State Government may make rules
for regulating the management of village forests, prescribing the conditions under which the
community may be provided with timber or other forest produce or pasture. The State
Government may also prescribed duties for the protection and improvement of such village
forests. All the provisions relating to reserved forests shall also apply to village forests.

PRPTECTED FORESTS:

The following activities are prohibited in a Protected Forest:

1. Felling, gridling, loping, tapping or burning or burning any tree reserved under
Section 30 or stripping off the bark or leaves from any such tree or otherwise
damaging any such tree.

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 2. Quarrying any stone, burning any lime or charcoal or collection, subjecting to any
manufacturing process, or removing any forest produce.
3. Breaking up or clearing for cultivation or any other purpose any land in any protected
forest.
4. Setting fire to such forest or kindling fire without taking all reasonable precaution to
prevent its spreading to any tree whether standing, fallen or felled.
5. Leaving burning any fire kindled in the vicinity of such tree.
6. Felling any tree or dragging any timber so as to damage any tree.
7. Permitting cattle to damage any such tree.
8. Infringing any rule made by the State Government to regulate certain activities in the
protected forests.

Any person who commits any of the above offences shall be punishable with
imprisonment for a term which may extend to 6 months or with fine which extend to Rs.500/-
or with both.

PRIVATE FORESTS (FORESTS AND LANDS NOT BEING THE PROPERTY OF

THE GOVERNMENT):

The State Government may by Notification in the Official Gazette regulate or prohibit in
any forest or wasteland by individual:

(a) The breaking up or clearing of land for cultivation;

(b) The pasturing of cattle; or
(c) The firing or clearing of the vegetation.

When such regulation or prohibiting appears necessary for any of the following purposes:

1. For protection against storms, winds, rolling stones, floods and avalanches;
2. For the preservation of the soil on their edges and slopes and in the valleys of hilly
tracts, the prevention of land slips or of the formation of ravines, and torrents, or the
protection of land against erosion, or the deposit thereon of sand, stones or gravel;
3. For the maintenance of water supply in springs, rivers and tanks;
4. For the protection of roads, bridges, railways and other lines of communication;
5. For the preservation of the public health.

In case of neglect or willful disobedience to any regulation or prohibition made by the

State Government for the above purposes. The State Government may, after issuing a notice
in writing to owner of such forest or land and after considering his objections, if any place the
same under the control of a Forest Officer and may declare that all or any provisions of this
Act, relating reserved forests shall apply to such forest or land.

Section 38 of the Indian Forest Act, 1927 provides for protecting private forest at the
request of owners. The owner or owners of any land may with a view to conserve the forests
request the Collector in writing to manage the forest on their behalf by the Forest Officer as a
reserved or protected forest and to apply all or any of the provisions of this Act to their
forests. In such cases, the State Government may apply to such forests such provisions of this
Act, as it thinks suitable to the circumstances thereof.
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SUPREME COURT ON FOREST RESOURCE MANAGEMENT:

TN Godavarman Tirumulkpad v. Union of India, AIR 1997 SC 1228, is an

excellent decision rendered by the Supreme Court in connection with the law relating to the
forest. Some of the salient features of the judgment of the Supreme Court in this case are
summarized as follows:

1. Forest includes the area noted in the Government records as forest, irrespective of
ownership.
2. Mining licensing in a forest area without prior approval of the Central Government is
violative of FCA. All the ongoing activities under such invalid license must cease.
The State Government should take necessary remedial measures.
3. Running sawmills of any kind is a non-forest activity.
4. Responsibility is imposed on each State Government to report on the number of
sawmills, actual capacity of the mills, proximity to the nearest forest and their sources
of timber.
5. Complete ban on felling of trees in the tropical wet evergreen forest in Arunachal
Pradesh is essential ‘because of their significance to maintain ecological balance
needed to preserve bio-diversity’. Felling of trees in forest in other states except in
accordance with working plans is suspended.
6. Movement of the cut trees and timber is banned with the exception of certified timber
required for defense purposes.
7. Each State Government should constitute expert committees to identify forest areas,
denuded forest and covered by plantation trees and to assess the sustainable capacity
of the forest.
8. In the State of Jammu and Kashmir, no private agencies should deal in felled trees or
in timber. No permission should be given for sawmills within a distance of 8 kms
from the boundary of demarcated forest area.
9. In Tamil Nadu the tribal’s who are part of the social forestry program in respect of
patta lands other than forest may continue to grow and cut trees according to the
government scheme and in accordance with the law applicable.
10. Plantations are not allowed to expand further and encroach upon forests by way of
clearing or otherwise.

THE FOREST CONSERVATION ACT, 1980

The Parliament of India enacted the Forest Conservation Act, 1980 to provide for the
conservation of forest and matters connected therewith. The imposition of restrictions on
dereservation of forests or use of forestland for non-forest purpose is the main object of the
Forest Conservation Act, 1980 (FAC).

Section 2 of the FCA directs that no State Government or other authority shall make any
order without the prior approval of the Central Government for the following purposes:

1. Dereservation of any reserved forest or any portion thereof;

2. Permitting the use of any forest land or any portion thereof for any non forest purpose.

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 3. Assigning by way of lease or otherwise any forest land or any portion thereof to any
private person or to any authority, corporation, agency or any other organization not owned
or managed or controlled by the Government;

4. Clearing off trees, which have grown naturally in any forestland or any portion thereof
for the purpose of using it for reafforestation.

“Non-forest purpose” means the breaking up or clearing of any forestland or portion

thereof for:

1. The cultivation of tea, coffee, spices, rubber, palms, oil bearing plants, horticulture
crops or medicinal plants;

2. Any purpose other than reafforestation.

THE MEMBERS OF FCA

The Central Government has constituted a Committee to advise the Government with
regard to the grant of approval required under Section 2 as described above and for any other
matter connected with the conservation of forest, which may be referred to it by the Central
Government.

The Committee constituted by the Central Government in exercise of the powers

conferred under Section 4 of the FCA comprises of the following members:

1. Inspector General of Forest, Ministry of Environment & Forests - Chairman

2. Additional IG of Forests, Ministry of Environment & Forests - Member

3. Joint Commissioner (Soil Conservation), Ministry of Agriculture - Member

4. 3 Eminent Environment Scientists (Non-officials) - Members

5. Deputy IG of Forests, Ministry of Environment & Forests - Member Secretary

PUNISHMENTS:

Section 3A of FCA prescribes penalty for contravention of the provisions of the Act.

This Section provides that “whoever contravenes or abates the contravention of any of
the provisions of Section 2 shall be punishable with simple imprisonment for a period which
may extend to 15 days”.

WILDLIFE (PROTECTION) ACT 1972

There is a dramatic increase in the illegal wildlife trade in India. In India, illegal trade in
tiger bones and skins, rhino horn, ivory, bear bile, musk, skin for the fur trade, reptile skins,
butterflies, rare medicinal and ornamental plants, swiftlet nests, coral and sought after species
in live mammal, bird and reptile is on the rise.

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 This is due to the demand these products have in the international market. Except for
minor domestic use, there is no major market for these products within India. All the trade is
destined for countries outside our borders.

The expansion of trade is directly related to a precipitous increase in the value of the
products in the international market. All over the world the commercial activities related to
wild life are classified under the following categories:

1. Trade for food

2. Trade for medicine

3. Trade for derivatives

4. Trade for pets or private collections

5. Trade for artifacts

6. Trade for souvenirs

7. Trade for zoos/gardens/museums

The trade in wild life could be in the form of whole animals and plants or its part, product
or derivatives. There are two main forms in which the trade takes place:

1. Live trade is for:

a. Exhibits and captive breeding

b. Food

c. Biomedical and scientific research

d. Ornamental/display

e. Pet, etc.,

2. Dead trade (whole, parts, products, or derivatives) for:

a. Food

b. Medicine

c. Decoration, curio, handicrafts

d. Clothing

e. Raw material for industry

f. Museum specimens etc.

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 Wild life trade is now well entrenched and wide spread in India. The low risk of
detection, high profits and numerous cross border trade rules have made the illegal trade an
increasingly attractive ‘business’.

India holds nearly half of the world’s tiger population. In the late 1980’s having
decimated tigers in China, Siberia and South East Asia, traditional oriental medicine
manufactures started to target India as their source of supply for tiger products. A deep-
rooted belief in the healing powers of tiger bones in Countries like China, Taiwan, South
Korea and Japan has accelerated the trade in tiger parts to disastrous proportions. Tiger bones
are smuggled into Tibet. Bones and skins of tiger are also smuggled overland into Nepal,
Bhutan, Bangladesh, and Myanmar.

In Northeast India, there is evidence of a strong connection between the illegal traders in
Rhino horns, insurgent groups and the drugs and arms trade. Fantastic prices in China and
Taiwan and consequently in India, makes rhino horn a lucrative illegal trade.

The poaching of male elephants for the ivory trade is also on the increase. Ivory is traded
in a raw or unworked from (either cut pieces or whole tusks) or in decorative pieces. Little is
known of the Indian connection in the complex international ivory trade network.

Another lucrative item in the illegal international wild life trade is musk. It is estimated
that two hundred musk deer are killed to produce just one kilogram of musk.

The poaching of musk deer in Northeast and Northwest India is extensive and there is a
thriving international trade from India to countries like Hong Kong and Japan.

Poaching of bears, particularly the Himalayan species, for oriental medicine is now
widespread in the Northwest of India. This species is also being heavily poached in North
Bengal and in the State of Arunachal Pradesh. Bear bile is extracted from the animal’s gall
bladder. It is used as an external medication for back and joint pains. To check and control
Wild Life trade in India, the Wild Life Protection Act, 1972.

The Indian law on wildlife, the Wildlife (Protection) Act, 1972 was passed on requests
from states. The Act made it possible to constitute a wildlife board with powers of regulation
in every state or union territory. For the purpose of protecting, propagating or developing
wildlife and its environment, the power is conferred on the State Governments and Central
Government to proclaim wildlife sanctuaries and national parks.

Before dealing with the provisions of Wildlife Protection Act, it is better to understand
the meaning of certain terms used in the legislation.

1. ‘Wildlife’ id defined to include “any animal, bees, butterflies, crustacea, fish and
moths; and acquire or land vegetation, which form part of any habit”.

2. ‘Wild animal’ means any animal found wild in nature and includes any animal
specified in Schedule 1,2,3,4 or 5, wherever found.

3. ‘Animal’ is defined to include “amphibians, birds, mammals and reptiles and their
young, and also includes, in the cases of birds and reptiles, their eggs.

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 4. ‘Animal article’ means an article made from any captive animal or wild animal, other
than vermin, and includes an article or object in which the whole or any part of such animal
has been used, and ivory imported into India and an article made there from.

5. ‘Captive animal’ means any animal specified in Schedule 1 to 4, which is captured or

kept or bred in captivity.

6. ‘Vermin’ means any wild animal specified in Schedule 5 (common crow, fruit bats,
mice, rats).

7. ‘Trophy’ means the whole or any part of any captive animal or wild animal, other than
vermin, which has been kept or preserved by any means, whether artificial or natural and
includes:

(a) rugs, skins and specimens of such animals mounted in whole or any part through a
process of taxidermy, and

(b) antler, horn, rhinocerous horn, heir, feather, nail, tooth, musk, eggs and nests.

8. ‘Uncured trophy’ means the whole or any part of any captive animal or wild animal
other than vermin, which has not undergone a process of taxidermy, and includes a freshly
killed wild animal, ambergris, musk and other animal products.

9. ‘Hunting’ with its grammatical variations and cognate expressions, includes:

(a) Capturing, killing, poisoning, snaring and trapping of any wild animal and every
attempt to do so,

(b) Driving any wild animal for any of the purposes specified in sub-clause (a),

(C) Injuring or destroying or taking any part of the body of any such animal or, in the
case of wild birds or reptiles, damaging the eggs of such birds or reptiles or disturbing the
eggs or nests of such birds or reptiles.

10. Live stock includes buffaloes, bulls, bullocks, camels, cows, donkeys, goats,
horses, mules, pigs, sheep, yaks, and also includes their young.

AUTHORITIES CONSTITUTED UNDER THE ACT:

1. The Central Government may, for the purpose of the Act, appoint_

(a) A Director of Wildlife Preservation

(b) Assistant Directors of Wildlife Preservation and

(c) Such other Officers and employees as may be necessary.

2. The State Government may, for the purpose of the Act, appoint_

(a) A Chief Wildlife Warden

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 (b) Wild Life Wardens

(c) One Honorary Wildlife Warden in each district; and

(d) Such other Officers and employees as may be necessary.

3. The State Government/Administrator of Union Territory may constitute a Wildlife

Advisory Board consisting of the following members:

(a) The Minister in charge of the Forest in the State or Union Territory (if there is no
such minister, then the Chief Secretary) shall be the Chairman.

(b) Two Members of the State Legislature/Legislature of Union Territory.

(c) Secretary to the State Government or the Government of the Union Territory, in
charge of forests.

(d) The Forest Officer in charge of the State Forest Deportment.

(e) An Officer to be nominated by the Director of Wildlife Preservation.

(f) Chief Wildlife Warden.

(g) Officers of the State Government not exceeding 5.

(h) Such other persons, not exceeding 10, who in the opinion of the State Government
are interested in the protection of wildlife, including the representatives of tribal’s not
exceeding 3.

DUTIES OF WILDLIFE ADVISORY BOARD:

The Wildlife Advisory Board is constituted mainly to advise the State Government

(1) In the selection of areas to be declared as sanctuaries, national parks and closed areas
and the administration thereof;
(2) In formulation of the policy for protection and conservation of wildlife and specified
plants;
(3) In any matter relating to the amendment of any schedule;
(4) In relation to the measure to be taken for harmonizing the needs of the tribal’s and
other dwellers of the forests with the protection and conservation of wildlife; and
(5) In any other matter connected with the protection of wildlife which may be referred to
it by the State Government.

HUNTING OF WILD ANIMALS:

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 Section 9 of the Wild Life (Protection) Act, 1972 (WPA) prohibits hunting of any
wild animal specified in Schedules 1, 2, 3 and 4. Any person, who hunts any wild animal,
shall be punishable with imprisonment for a term which may extend to 3 years or with fine
which may extend to Rs. 25,000/- or with both. However, if any person commits the offence
in a sanctuary or national park, with respect to any animal specified in Schedule 1 he shall be
punishable with imprisonment which shall not be less than 1 year but may extend to 6 years
and also with fine which shall not be less than Rs. 5000/-.

SANCTUARIES:

A State Government may be notification, declare its intention to constitute any area
other than an area comprised within any reserve forest or the territorial waters as sanctuary if
it considers that such area is of adequate ecological, faunal, floral, geomorphological, natural
or zoological significance, for the purpose of protecting, propagating or developing wildlife
or its environment. When a notification has been issued under Section 18 of WPA the
Collector shall inquire into, and determine, the existence, nature and extent of the rights of
any person in or over the land, comprised within the limits of the sanctuary.

NATIONAL PARK:

The State Government, for the purpose of protecting, propagating or developing

wildlife may be a notification declares that an area, by reason of its ecological, faunal, floral,
geomorphological or zoological association or importance, needed to be constituted as a
National Park. Once a National Park is declared, no alteration of the boundaries shall be
made except on the resolution passed by the Legislature of the State.

The following activities are prohibited in a National Park:

(1) Destroying, exploiting or removing any wild life,

(2) Destroying, damaging the habitat of any wild animal,
(3) Deprive any wild animal of its habitat,
(4) Grazing of any livestock.

CLOSED AREAS:

The State Government may be notification declare any area as Closed Area for
hunting. No hunting of any wild animal shall be permitted in a Closed Area.

SANCTURIES OR NATIONAL PARKS DECLARED BY THE CENTRAL

GOVERNMENT:

Where the State Government leases or otherwise transfers any area under its control
to the Central Government, the Central Government may declare such area as Sanctuaries or
National Parks. The provisions relating to Sanctuaries and National Parks shall apply even for
Sanctuaries or National Parks declared by the Central Government. However, the powers and
duties of the Chief Wild Life Warden shall be exercised and discharged by the Director of
Wildlife Preservation or by such other Officer authorized by the Director. No alternation of

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the boundaries of the Sanctuaries or National Parks declared by the Central Government shall
be made except on the resolution passed in the Parliament.

CENTRAL ZOO AUTHORITY:

The Central Government shall constitute the Central Zoo Authority. The Central Zoo
Authority shall consist of –

(a) Chairperson
(b) Such number of Members not exceeding 10; and
(c) Member Secretary.

The Central Zoo Authority shall perform the following functions:

1. Specify the minimum standards for housing, upkeep and veterinary care of the
animals kept in a Zoo;
2. Evaluate and assess the functioning of zoos with respect to the standards or the norms
as may be prescribed;
3. Recognize or derecognize zoos;
4. Identify endangered species of wild animals for the purposes of captive breeding and
assigning responsibility in this regard to a zoo;
5. Coordinate the acquisition, exchange and loaning of animals for breeding purposes;
6. Ensure maintenance of study books of endangered species of wild animals bred in
captivity;
7. Identify priorities and themes with regard to display of captive animals in a zoo;
8. Coordinate training of zoo personnel in India and outside India;
9. Coordinate research in captive breeding and educational programmes for the purpose
of zoos;
10. Provide technical and other assistance to zoos for their proper management and
development;
11. Perform such other functions as may be necessary to carry out the purpose of this Act
with regard to zoos.

COGNISANCE OF OFFENCE:

No court shall take cognizance of any offence against the WAP except on a complaint
made by –

1. The Director of Wildlife Preservation or any other authorized in this behalf by the
Central Government or
2. The Chief Wildlife Warden or any other officer authorized by the State Government
or
3. Any person who has given notice of not less than 60 days, in the manner prescribed,
of the alleged offence and of his intention to make a complaint to the Central
Government or the State Government or the officer authorized as aforesaid.

THE BIOLOGICAL DIVERSITY ACT, 2002

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 India is rich in biological diversity and associated traditional and contemporary
knowledge system relating thereto. India is a party to the United Nations Convention on
Biological Diversity signed at Rio de Janeiro on the 5th day of June 1992; and the said
Convention came into force on the 29th December 1993. To give effect to the Convention on
Biological Diversity and to attain the objectives of the Convention, the Biological Diversity
Act was enacted by the Parliament of India in the year 2002 to attain the following objects:

1. To provide for conservation of biological diversity,

2. To provide for sustainable use of its components, and
3. To provide for fair and equitable sharing of the benefits arising out of the use of
biological resources, knowledge, and
4. For matters connected therewith or incidental thereto.

DEFINITIONS:

The following expressions used in the Act are defined in Section 2 of the Biological
Diversity Act:

“Benefit claimens” means the conserver of biological resources, their byproducts,

creators and holders of knowledge and information relating to the use of such biological
resources, innovations and practices associated with such use and application.

“Biological diversity” means the variability among living organisms from all sources
and the ecological complexes of which they are part, and includes diversity within species or
between species and of eco-system.

“Biological resources” means plants animals and micro-organisms or parts thereof,

their genetic material and by-products (excluding value added products) with actual or
potential use of value, but does not include human genetic material.

“Bio-survey and bio-utilization” means survey or collection of species, sub-species,

genes, components and extracts of biological resource for any propose and includes
characterization, inventorisation and bioassay.

“Commercial utilization” means end uses of biological resources for commercial

utilization such as drugs, industrial enzymes, food flavors, fragrance, cosmetics, emulsifiers,
oleoresins, colors, extracts and genes used for improving crops and livestock through genetic
intervention, but does not include conventional breeding or traditional practices in use in any
agriculture, horticulture, poultry, dairy farming, animal husbandry or bee keeping.

“Fair and equitable benefit sharing” means sharing of benefits as determined by the
National Biodiversity Authority under section 21.

“Sustainable use” means the use of components of biological diversity in such manner
and at such rate that does not lead to the long-term decline of the biological diversity thereby
maintaining its potential to meet the needs and aspirations of present and future generations.

“Value added products” means products, which may contain portions or extracts of
plants and animals in unrecognizable and physically inseparable form.

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ESTABLISHMENT OF NATIONAL BIODIVERSITY AUTHORITY:

The Central Government shall establish the National Biodiversity Authority, having
its head office at Chennai and the National Biodiversity Authority may, with the previous
approval of the Central Government, establish offices at other place in India.

The National Biodiversity Authority shall consist of the following members:

(a) A Chairpersons, who shall be an eminent person having adequate knowledge and
experience in the conservation and sustainable use of biological diversity and in
matters relating to equitable sharing of benefits, to be appointed by the Central
Government;
(b) Three ex-officio members to be appointed by the Central Government, one
representing the Ministry dealing with Tribal Affairs and two representing the
Ministry dealing with Environment and Forests or the Director General of Forests;
(c) Seven ex-officio members to be appointed by the Central Government to represent
respectively the Ministers of the Central Government dealing with –
1. Agricultural Research and Education;
2. Biotechnology;
3. Ocean Development;
4. Agriculture and Cooperation;
5. Indian Systems of Medicine and Homoeopathy;
6. Science and Technology;
7. Science and Industrial Research.
(d) Five non-official members to be appointed from amongst specialists and scientists
having special knowledge of, or experience in, matters relating to conservation of
biological diversity, sustainable use of biological resources and equitable sharing of
benefits arising out of the use of biological resources, representatives of industry,
conservers, creators and know ledge- holders of biological resources.

COMMITTEES OF NATIONAL BIODIVERSITY AUTHORITY:

The National Biodiversity Authority may constitute a committee to deal with agro-
biodiversity. “Agro-biodiversity” means biological diversity, of agriculture related species
and their wild relatives. The National Biodiversity Authority may also constitute such
number of committees as it deems fit for the efficient discharge of its duties and performance
of its functions under this Act.

FUNCTIONS AND POWERS OF THE NATIONAL BIODIVERSITY AUTHORITY:

Section 18 of the Biological Diversity Act prescribes the functions and powers of the
National Biodiversity. The following are the functions and powers of the National
Biodiversity Authority:

1. It shall be the duty of the National Biodiversity Authority to regulate activities

referred to in sections 3, 4 and 6 and by regulations issue guidelines forS access to
biological resources and for fair and equitable benefit sharing.

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 2. The National Biodiversity Authority may grant approval for undertaking any activity
referred to in sections 3, 4 and 6.
3. The National Biodiversity Authority may –
(a) Advise the Central Government on matters relating to the conservation of
biodiversity, sustainable use of its components and equitable sharing of benefits
arising out of the utilization of biological resources;
(b) Advise the State Government in the selection of areas of biodiversity importance
to be notified under sub-section (1) of section 37 as heritage sites and measures
for the management of such heritage sites;
(c) Perform such other functions as may be necessary to carry out the provisions of
this Act.
4. The National Biodiversity Authority may, on behalf of the Central Government, take
any measures necessary to oppose the grant of intellectual property rights in any
country outside India on any biological resource obtained from India or knowledge
associated with such biological resource which is derived from India.

ESTABLISHMENT OF STATE BIODIVERSITY BOARD:

With effect from such date as the State Government may, by notification in the
Official Gazette, appoint in this behalf, there shall be established by that Government for the
purposes of this Act, a Board for the State to be known as the (name of the State)
Biodiversity Board.

In a Union territory, the National Biodiversity Authority shall exercise the powers and
perform the functions of a State Biodiversity Board for that Union territory: Provided that in
relation to any Union territory, the National Biodiversity Authority may delegate all or any of
its powers or functions under this sub-section to such person or group or persons as the
Central Government may specify.

The Board shall consist of the following members, namely:

(a) A Chairperson who shall be an eminent person having adequate knowledge and
experience in the conservation and sustainable use of biological diversity and in
matters relating to equitable sharing of benefits, to be appointed by the State
Government;
(b) Not more than five ex-officio members to be appointed by the State Government to
represent the concerned Departments of the State Government;
(c) Not more than five members to be appointed from amongst experts in matters relating
to conservation of biological diversity, sustainable use of biological resources and
equitable sharing of benefits arising out of the use of biological resources.

The head office of the State Biodiversity Board shall be at such place as the State
Government may, by notification in the Official Gazette, specify.

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FUNCTIONS OF STATE BIODIVERSITY BOARD:

Section 23 of the Biological Diversity Act prescribed the functions of the State
Biodiversity Board. The Functions of the State Biodiversity Board are:

(a) Advise the State Government, subject to any guidelines issued by the Central
Government, on matters relating to the conservation of biodiversity, sustainable use of
its components and equitable sharing of the benefits arising out of the utilization of
biological resources;
(b) Regulate by granting of approvals or otherwise requests for commercial utilization or
bio-survey and bio-survey and bio-utilization of any biological resource by Indians;
(c) Perform such other functions as may be necessary to carry out the provisions of this
Act or as may be prescribed by the State Government.

BIODIVERSITY HERITAGE SITES:

Without prejudice to any other law for the time being in force, the State Government
may, from time to time in consultation with the local bodies, notify in the Official Gazette,
areas of biodiversity importance as biodiversity heritage site under this Act.

The State Government, in consultation with the Central Government, may frame rules
for the management and conservation of all the heritage sites.

The State Government shall frame schemes for compensating or rehabilitating any
person or section of people economically affected by such notification.

POWER OF CENTRAL GOVERNMENT TO NOTIFY THREATENED SPECIES:

Without prejudice to the provisions of any other law for the time being in force, the
Central Government, in consultation with the concerned State Government, may from time to
time notify any species which is on the verge of extinction or likely to become extinct in the
near future as a threatened species and prohibit or regulate collection thereof for any purpose
and take appropriate steps to rehabilitate and preserve those species.

PENALTIES:

Section 55 of the Biological Diversity Act prescribes punishments for contravention

of various provisions of the Act. The punishment prescribed is:

Whoever contravenes or to or abets the contravention of the provisions of section 3 or

section 4 or section 6 shall be punishable with imprisonment for a term which may extend to
five years, or with fine which may extend to ten lakh rupees and where the damage caused
exceeds ten lakh rupees such fine may commensurate with the damage caused, or with both.

Whoever contravenes or attempts to contravene or abets the contravention of the

provisions of section 7 or any order made under sub-section (2) of section 24 shall be

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punishable with imprisonment for a term which may extend to three years, or with fine which
may extend to five lakh rupees, or with both.

The offences under this Act shall be cognizable and non-bailable.

COGNIZANCE OF OFFENCES:

No Court shall take cognizance of any offence under this Act except on a complaint
made by –

(a) The Central Government or any authority or officer authorized in this behalf by
that Government; or
(b) Any benefit claimer who has given notice of not less than thirty days in the
prescribed manner, of such offence and of his intention to make a complaint, to
the Central Government or the authority or officer authorized as aforesaid.

UNIT – XVII

LAW RELATING TO PREVENTION OF CRUELTY TO ANIMALS

To prevent cruelty to Animals and to prevent the infliction of unnecessary pain or

suffering on animals, the Parliament of India enacted the Prevention of Cruelty to Animals
Act, in the year 1960.

For the purpose of Prevention of Cruelty to Animals Act, 1960 (PCA), the expression:

1. “Animal” means any living creature other than a human being;

2. “Captive Animal” means any animal (not being a domestic animal) which is in
captivity or confinement, whether permanent or temporary, or which is subject to any
appliance or contrivance for the purposes of hindering or preventing its escape from captivity
or confinement or which is pinioned or which is or appears to be maimed.

3. “Domestic Animal” means any animal which is tamed or which has been or is being
sufficiently tamed to serve some purpose for the use of man or which, although it neither has
been nor is being nor is intended to be so tamed, is or has become in fact wholly or partly
tamed.

4. “Phooka” or Doom Dev” includes any process of introducing air or any substance into
the female of a milch animal with the object of drawing off from the animal any secretion of
milk.

DUTY TO ENSURE THE WELL BEING OF ANIMAL:

Apart from the Fundamental Duty imposed on citizens of this country by the
Constitution of India through Article 51A (g) to have compassion towards living creatures,
section 3 of PCA confers a statutory obligation on persons having the care or charge of any
animal to take all reasonable measures to ensure the well being of such animal and to prevent
the infliction upon such animal of unnecessary pain or suffering.

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CRUELTY TO ANIMALS:

Section 11 of PCA enumerates instances, which would amount to treating of animals

cruelly. Activities that would amount to cruelty to animals are:

1. If any person_

(a) beats, kicks, overrides, overdrives, overloads, tortures or otherwise treats any
animals so as to subjects it to unnecessary pain or suffering or causes or, being the owner,
permits, any animal to be so treated; or

(b) employs in any work or labour or for any purpose any animals which, by reason of
any disease, infirmity, wound, sore or other cause, is unfit to be so employed or, being the
owner, permits any such unfit animal to be so employed; or

(c) willfully and unreasonably administers any injurious drug or injurious substance to
any animal or willfully and unreasonably causes or attempts to any such drug or substance to
be taken by any animal; or

(d) conveys or carries whether in or upon any vehicles, or not, any animal in such a
manner or position as to subjects it to unnecessary pain or suffering;

(e) Keeps or confines any animal in any cage or other receptacle which does not
measure sufficiently in height, length and breadth to permit the animal a reasonable
opportunity for movement; or

(f) keeps for an unreasonable time any animal chained or tethered upon an
unreasonably short or unreasonably heavy chain or cord; or

(g) being the owner, neglects to exercise or cause to be exercised reasonably any dog
habitually chained up or kept in close confinement; or

(h) being the owner of any animal, fails to provide such animal with sufficient food,
drink or shelter; or

(i) without reasonable cause, abandons any animal in circumstances which render it
likely that it will suffer pain by reason of starvation or thirst; or

(j) willfully permits any animal, of which he is the owner, to go at large in any street
while the animal is affected with contagious or infectious disease or, without reasonable
excuse permits any diseased or disabled animal, of which he is the owner, to die in any street;
or

(k) offers for sale or, without reasonable cause, has in his possession any animal
which is suffering pain by reason of mutilation, starvation, thirst, over-crowding or other ill-
treatment; or

(l) Mutilates any animals or kills any animal (including stray dogs) by using the
method of strychnine injections in the heart or in any other unnecessarily cruel manner; or

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 (j) solely with a view to providing entertainment_

Confines or cause to be confined any animal (including tying of an animal as a bait in a

tiger or other sanctuary) so as to make it an object of prey for any other animal; or

Incites any animal to fight or bait any other animal.

he shall be punishable, in the case of a first offence, with fine which shall not be less
than Rs. 10 but which may extend to Rs. 50, and in the case of a second or subsequent
offence committed within three years of the previous offence, with fine which shall not be
less than Rs. 25 but which may extend to three months, or with both.

ANIMAL WELFARE BOARD OF INDIA:

The Government of India has established Animal Welfare Board of India mainly for two
purposes:

(1) For the promotion of animal welfare generally and

(2) For protecting animals from being subjects to unnecessary pain or suffering.

The Animal Welfare Board of India (AWBI) the first of its kind to be established by any
Government in the world was set up in 1962 in accordance with Section 4 of the Prevention
of Cruelty to Animals Act, 1960.

Smt. Rukmini Devi Arundale pioneered the setting up of this Board, with its
Headquarters at Chennai.

The Board consists of 28 members including 6 Members of Parliament, Humanitarians,

and Representatives of the Government of India and Representatives of Societies for
Prevention of Cruelty to Animals and Animal Welfare Organizations.

The main functions of the Board (AWBI):

1. To implement provisions of the PCA Act and advise the Government on the
amendments to be undertaken in any such law from time to time, and on policy
formulation in respect of Animal Welfare;

2. To recognize Societies for the Prevention of Cruelty to Animals (SPCAs) and

Animal Welfare Organizations and give financial assistance for specific projects like
Constitution of Shelter Houses, Veterinary Care, Animal Birth Control Programme
etc.,

3. To impart education to the humane treatment of animals and to encourage the

formation of public opinion against the infliction of unnecessary pain or suffering to
animals.

EXPERIMENTATION ON ANIMALS:

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 Section 14 of PCA permits experimentation on animals (including experiments involving
operations) if such experimentation will be useful for saving or for prolonging life or
alleviating suffering or for combating any disease, whether of human beings, animals or
plants.

The Central Government may constitute a Committee for the purpose of controlling and
supervising experiments on animals.

It shall be the duty of the Committee to take all such measures to ensure that animals are
not subjected to unnecessary pain or suffering before, during or after the performance of
experiments on them.

For the purpose of discharging its functions and for enforcing compliance of rules made
by the Committee, it may authorize any of its officers to inspect any institution or place
where experiments are being carried on. The Committee is also conferred the power of entry
and inspection.

Section 19 of PCA Act has conferred power on the Committee to prohibit experiments on
animals, if the Committee is satisfied that any person or institution carrying on experiments
on animals is not complying with the rules made by it.

If any person contravenes any order made by the Committee or commits a breach of any
condition imposed by the Committee then he shall be punishable with fine, which may extend
to Rs.200.

RESTRICTION ON EXHIBITION AND TRAINING OF PER-FORMING ANIMALS:

The PCA Act prohibits exhibition and/or training of any animal, which is notified by the
Central Government. However, if any person has registered with the ‘Prescribed Authority’
for the purpose of exhibiting or training any performing animal, then he may exhibit and
train-performing animals subject to the conditions prescribed by the Authority.

Under Section 25 of PCA Act, Magistrates are empowered to prohibit or restrict

exhibition and training of performing animals on receipt of a complaint made by a police
officer or any officer authorized by the prescribed authority. Any person authorized by the
prescribed authority and any police officer not below the rank of a Sub-Inspector may enter
and inspect any premises in which performing animals are being trained or exhibited or kept
for training or exhibition and require the trainer or exhibitor to produce his certificate of
registration.

If any person_

1. Exhibits or trains any performing animal without registration; or

2. Exhibits or trains any performing animal in a manner with respects to which,

he is not registered; or

3. Exhibits or trains any animal which is not to be used as a performing animal;

or

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 4. Obstructs or willfully delays any person or police officer in the exercise of
powers under this Act as to entry and inspection; or

5. Conceals any animal with a view to avoid such inspection; or

6. Fails to produce his certificate of registration; then, he shall be punishable on

conviction with fine which may extend to Rs. 500 or with imprisonment, which may
extend to 3 months or with both.

However, the PCA Act exempts the training of animals for bona fide military or police
purpose or the exhibition of any animal so trained.

It also exempts the exhibition of animals for education or scientific purposes by any
zoological garden or by any society or association, which keeps animals with the principal
object of exhibition for education or scientific purposes.

RULES MADE UNDER THE PREVENTION OF CRUELTY TO ANIMALS ACT,

1960:

The Central Government is empowered to make rules for all or any of the following matters:

1. The maximum load to be carried or drawn by any animal;

2. The conditions to be observed for preventing the overcrowding of animals;

3. The period during which, and the hours between which, any class of animals
shall not be used for draught purposes;

4. Prohibiting the use of any bit or harness involving cruelty to animals;

5. Requiring persons carrying on the business of a farrier to be licensed and

registered by such authority;

6. Precautions to be taken in the capture of animals for purposes of sale, export

or for any other purpose;

7. Precautions to be taken in the transport of animals, whether by rail, inland,

waterway, sea or air and the manner in which and the cages or other receptacles in
which they may be so transported;

8. Requiring persons owning or in charge of premises in which animals are kept

or milked to register such premises, to comply with such conditions as may be laid
down in relation to the boundary walls or surrounding of such premises, etc.

Section 38 provides that if any person contravenes, or abets the contravention of, any
rules made by the Central Government, he shall be punishable with fine, which may extend to
Rs. 100 or with imprisonment for a term which may extend to 3 months or with both.

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RULES MADE UNDER THE PREVENTION OF CRUELTY TO ANIMALS ACT,
1960:

The Central Government is empowered to make rules for all or any of the following
matters:

1. The maximum load to be carried or drawn by any animal;

2. The conditions to be observed for preventing the overcrowding of animals;

3. The period during which, and the hours between which, any class if animals
shall not be used for draught purposes;

4. Prohibiting the use of any bit or harness involving cruelty to animals;

5. Requiring persons carrying on the business of a farrier to be licensed and

registered by such authority;

6. Precautions to be taken in the capture of animals for purposes of sale, export

or for any other purpose;

7. Precautions to be taken in the transport of animals, whether by rail, inland,

waterway, sea or air and the manner in which and the cages or other receptacles in
which they may be so transported;

8. Requiring persons owning or in charge of premises in which animals are kept

or milked to register such premises, to comply with such conditions as may be laid
down in relation to the boundary walls or surrounding of such premises, etc.

Section 38 provides that if any person contravenes, or abets the contravention of any
rules made by the Central Government, he shall be punishable with fine, which may extend to
Rs. 100 or with imprisonment for a term which may extend to 3 months or with both.

TAMIL NADU ENACTMENTS:

Apart from the rules made to prevent cruelty to animals by the Central Government, there
are certain other enactments having its operation in the State of Tamil Nadu.

The following state enactments also aim at prevention of cruelty to animals in the State of
Tamil Nadu.

1. Madras City Police Act, 1888:

Section 53 of the Act reads: “Whoever cruelly beats, ill-treats or tortures any animal,
causes any animal to be cruelly beaten, ill-treated or tortured, shall be liable to fine not
exceeding Rs.100 or to imprisonment not exceeding 3 months or to both”.

2. The Towns Nuisance Act, 1889:

Section 5 of the Act reads: “Whoever cruelly beats, ill-treats or tortures or drives,
rides, or otherwise uses any animal in an unfit state to be so driven, ridden or used, or causes

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any animal to be cruelly beaten, ill-treated or tortured, or to be driven, ridden or used, shall be
liable to a fine not exceeding Rs. 50 or to imprisonment not exceeding one month or to both.

3. Tamil Nadu Wild Elephants Preservation Act, 1873:

An act to prevent indiscriminate destruction of wild elephants.

4. Tamil Nadu Animal and Bird Sacrifices Prohibition Act, 1950:

Section 5 of the Act reads: No person shall knowingly allow any sacrifice to be
performed at any place which is_

(a) Situated within any temple and its precincts;

(b) In his possession or under his control.

Section 6 prescribes punishment for contravention of Sections 3, 4, and 5. Violation of:

1. Section 3 will make a person liable for fine not exceeding Rs. 300.

2. Section 4 will make a person liable for fine not exceeding Rs. 300.

3. Section 5 will make a person liable for imprisonment of 3 months or with fine not
exceeding Rs. 300 or both.

5. Madras Livestock Improvement Act, 1940:

The Act provides for licensing of Bulls which have attained the prescribed age,
refusal and revocation of licenses, inspection of Bulls, punishment for violation, etc.

UNIT – XVIII

THE ENVIRONMENT (PROTECTION) ACT, 1986

RULES AND NOTIFICATION

ENVIRONMENT (PROTECTION) ACT, 1986:

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 Object of the Act –

The Environment Protection Act was enacted by the Parliament in the year 1986. This act
was enacted with the object of providing for the protection and improvement of environment
and for matters connected therewith.

The preamble to the Act points out that the environment protection act was made:

1. To implement decisions taken at the United Nations Conference on the human

environment held at Stockholm in June 1972,

2. To take appropriate steps for the protection and improvement of human environment; and

3. To prevent hazards to human beings, other living creatures, plants and property.

Definitions –

Section 2 (a) defines ‘environment’ as that which “includes water, air and land and the
interrelationship which exists among and between water, air and land and human beings,
other livings creatures, plants, micro organism and property.”

Section 2 (c) defines ‘environment pollution’ as the “presence in the environment of any
environmental pollutant.”

Section 2 (b) defines ‘environmental pollutant’ as “any solid, liquid or gaseous substance
present in such concentration as may be, or tend to be, injurious to environment.”

Power to the Central Government to take measures to protect and improve

environment

Section 3 of the Environment Protection Act has prescribed certain powers which the
Central Government shall have to take all such measures as it deems necessary for the
purpose of protecting and improving the quality of environment and preventing, controlling
and abating environmental pollution.

The powers conferred under Section 3 of the Act are as follows:

1. To coordinate actions taken by the State Governments, Officers and other authorities
under the EP Act or under the Environment Protection rules.

2. To plan and execute a nation-wide program for the prevention, control and abatement
of environmental pollution.

3. To lay down standards for the quality of environment.

4. To lay down standards for emission or discharge of environmental pollutants from

various sources.

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 5. To restrict areas in which any industries or operations or processors shall be carried
out.

6. To lay down procedures and safeguards for the prevention of accidents this may cause
environmental pollution.

7. To lay down procedures and safeguard for the handling of hazardous substances.

8. To examine manufacturing processes, materials and substances which are likely to

cause environmental pollution.

9. To carry out and sponsor investigation and research relating to problems of

environmental pollution.

10. To inspect premises, plants, equipment, machinery, manufacturing or other processes,

materials or substances and to give direction to take steps for the prevention, control and
abatement of environmental pollution.

11. To establish or recognize environmental laboratories and institutes to carry out the
functions entrusted to such environmental laboratories and institutes under the EP Act,

12. To collect and disseminate information relating to environmental pollution.

13. To prepare manuals, codes or guides relating to the prevention, control and
abatement of environmental pollution.

14. To do such matters as the Central Government may deem necessary for the purpose of
securing the effective implementation of the EP Act,

Other Powers –

Apart from the above list of powers conferred by Section 3 of the Central Government,
some more powers have been conferred on the Central Government by other Sections of the
EP Act as follows :-

1. Power to Appoint Officer –

Section 4 has conferred on the Central Government the power to appoint Officers for the
purpose of entrusting on them such of the powers and functions prescribed under the EP Act.

2. Power to Order Closure -

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 Section 5 has conferred power on the Central Government to issue directions in writing to
any person, Officer or any authority and such person, Officer or authority shall be bound to
comply with such directions. Under this Section, the Central Government has the power to
issue directions of:

1. The closure, prohibition or regulation of any industry, operation or process; or

2. Stoppage or regulation of the supply of electricity or water or any other service.

3. Power to make Rules –

Section 6 has empowered the Central Government to make rules relating to:

1. Standards of quality of air, water or soil for various areas and purposes;

2. The maximum allowable limits of concentration of various environmental pollutants

(including noise) for different areas;

3. The procedures and safeguards for handling of hazardous substances;

4. The prohibition and restriction and handling of hazardous substances in different

areas;

5. The prohibition and restriction on the location of industries and the carrying on
processes and operations in different areas;

6. The procedures and safeguards for the prevention of accidents which may cause
environmental pollution.

4. Power to enter and search –

Section 10 has conferred powers on the Central Government and persons empowered by
the Central Government to enter any place for the purpose of:

1. Performing any of the functions of the Central Government under the EP Act;

2. For the purpose of determining whether the provisions of the EP Act, the EP rules are
any notice, order, direction made under this Act has been complied with;

3. for the purpose of examining and testing any equipment, industrial plant, record,
register, document or any other material object or for conducting a search of any building and

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for seizing any such equipment, industrial plant, record, register, document or any other
material object;

Section 10 further provides that the search or seizure shall be made only in accordance
with the procedure prescribed under the Code of Criminal Procedure 1973.

The Central Government by a notification dated 16th February 1987 has empowered 60
Officers for the purpose of entry and inspection.

5. Power to take samples –

Section 11 of the EP Act has conferred on the Central Government or any Officer
empowered by the Central Government, the power to take sample of air, water, soil or other
substance from any factory, premises or other place for the purpose of analysis .

The Central Government by a notification made on 16th February 1987 and by

subsequent amendments thereafter has empowered 60 Officers to take samples.

Section 11 of the EP Act also prescribed the procedure for taking samples. The Officer
empowered to take samples shall –

1. Serve a notice of his intention to collect samples and to analyze it in the prescribed
from on the occupier or his agent or person in charge of the place;

2. Collect the sample for analysis in the presence of the occupier or his agent or person in
charge of the place;

3. Cause the sample to be placed in a container which shall be marked and sealed and
shall also be signed both by the person taking the sample and the occupier or his agent or
person in charge of the place;

4. Send the container without delay to the laboratory established or recognized by the
Central Government.

Duties imposed on individuals –

1. Duty not to discharge Environment Pollutants –

Section 7 of the EP Act directs that person that persons who are carrying on any industry,
operation or process shall not discharge or emits any environmental pollutants in excess of
standards that are prescribed by the Central Government.

2. Duty to comply procedural safe guards –

Section 8 directs that persons who are handling hazardous substances shall comply with
the procedural safeguards prescribed by the Central Government.

3. Punishments prescribed under the Act –

Section 15 of the EP Act prescribes penalty for contravention of the provisions of the
Environment Protection Act, the EP rules, orders and directions. Under this Section, if any

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person fails to comply with or contravenes any of the provision of the act or the rules or
orders or directions shall be punishable with imprisonment for a term which may extend to 5
years or with fine which may extend to Rs. 1 lakh or with both.

In spite of the punishment, if the failure or contravention continues, then the person may
be imposed an additional fine which may extend to Rs. 5000 for every day during which such
failure or contravention continues after the conviction for the first period of 1 year after the
date of conviction, then the offender shall be punishable with imprisonment for a term, which
may extend to 7 years.

4. Bar on Jurisdiction of Civil Courts –

Section 22 of the EP Act provides that “no Civil Court shall have jurisdiction to entertain
any suit or proceeding in respect of anything done, action taken or order or direction issued
by the Central Government or any other authority or Officer in pursuance of any power
conferred” by the EP Act.

5. Cognizance of Offences –

Section 19 of the EP Act provides that a Court can take cognizance of any offence under
this Act only on a complaint made by:

1. The Central Government or any authority or Officer authorized in this behalf;

The Central Government by a Notification dated the 16th April 1987 has authorized
certain Officers like:

(i) Director, Joint Secretary, Advisor or Additional Secretary in the Department of

Environment, Forest and Wild Life;

(ii) The Chairman or Member Secretary of the Central Pollution Control Board;

(iii) The Secretary to the Government of the State Department of Environment;

(iv) Chairman or Member Secretary of the State Pollution Control Board;

(v) The District Collectors;

(vi) Zonal Officers of the Central Pollution Control Board;

(vii) Regional Officers of the State Pollution Control Board).

2. any person who has given notice of not less than 60 days to the Central Government of
the alleged offence and of his intention to make a complaint.

THE ENVITONMENT (PROTECTION) RULES, 1986

The Central Government in exercise of the powers conferred by sections 6 and 25 of the
EP Act made the Environment Protection Rules in the year 1986. The Environment
Protection Rules has fourteen rules and seven schedules.

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Schedule I: prescribes the standards for emission or discharge of environmental pollutants
from industries, operations or process.

Schedule II: was omitted by a notification dated 31-12-1993.

Schedule III: of the EP rules prescribes ambient air quality standards in respect of
noise.

Schedule IV: prescribes standards for emission of smoke, vapor etc. from motor
vehicles.

Schedule V: provides a list of authorities or agencies to be intimated in case of

discharge of any environmental pollutant in excess of prescribed standards.

Schedule VI: prescribes general standards for discharge of environmental pollutants.

Schedule VII: prescribes the National Ambient Air Quality Standards (NAAQS).

Power to Describe Standards –

Rule 3 of the EP rules confers power on the Central Pollution Control Board and the State
Pollution Control Board to specify more stringent standards than prescribed in the schedules
mentioned above in respect of any specific industry, operation or process, depending upon
the quality of the recipient systems.

Prohibiting/Restricting the Location of Industries -

Rule 5 of the EP rules directs the Central Government to take into consideration the
following factors while prohibiting or restricting the location of industries and carrying on of
processes and operations in different areas:

1. Standards for quality of environment in its various aspects laid down for an area;

2. The maximum allowable limits of concentration of various environmental pollutants

(including noise) for an area;

3. The likely emission or discharge of environmental pollution from an industry, process

of operation proposed to be prohibited or restricted;

4. The topographic and climatic features of an area;

5. The biological diversity of the area;

6. Environmentally compatible land use;

7. Net adverse environmental impact likely to be caused by an industry, process or

operation;

8. Proximity to a protect area under the Ancient Monuments and Archaeological Sites and
Remains Act, 1958 or a Sanctuary, National Park, reserve or closed area notified under the
Wild Life Protection Act, etc.;

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 9. Proximity to human settlements;

10. Any other factor relevant for the protection of the environment.

Environmental Laboratory –

Rule 9 of the EP rules has laid down the functions of the environmental laboratories
established or recognized under the EP Act. The functions of the environmental laboratory
are:-

1. To evolve standardized methods for sampling and analysis of various types of

environmental pollutants;

2. To analyze samples sent by the Central Government or by the Officers empowered by

the Central Government;

3. To carry out investigations as may be directed by the Central Government for laying
down standards for the quality of environment and discharge of environmental pollutions, to
monitor and to enforce the standards laid down;

4. To send periodical reports regarding its activities to the Central Government;

5. To carry out such other functions as may be entrusted to it by the Central Government
from time to time.

IMPORTANT RULES AND NOTIFICATIONS MADE UNDER THE

ENVIRONMENT (PROTECTION) ACT 1986:

The Central Government, to perform its functions effectively as contemplated in the

Environment Protection Act, has made various Rules, notifications and Orders including the
following:

1. Hazardous waste (Management and Handling) Rules, 1989 as amended in 2000;

2. Rules for the Manufacture, use, import, export and storage of hazardous micro
organisms, genetically engineered organisms or cells, 1993;

3. Manufacture, storage and import of Hazardous Chemical Rules, 1989;

4. Recognized laboratories under Rules for the manufacture, use, import, export and
storage of hazardous micro organisms, genetically engineered organisms or cells, 1993;

5. Bio-medical wastes (Management and Handling) Rules, 1998;

6. Recycled plastics (Manufacture and Usage) Rules, 1999;

7. Environment (Siting for industrial projects) Rules, 1999;

8. The Noise Pollution (Regulation and Control) Rules, 2000;

9. Ozone Depleting substances (Regulation and Control) Rules, 2000;

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 10. The Municipal Solid Wastes (Management and Handling) Rules 2000;

11. Batteries (Management and Handling) Rules 2001;

12. Notification relating to the delegation of powers to the Central Pollution Control
Board;

13. Eco-labeling notifications;

14. Environmental Impact Assessment Notifications;

15. Public Hearing Notifications;

16. The Coastal Regulation Zone Notification;

17. National Coastal Zone Management Authority Notification;

18. Notification relating to Prohibition and Restriction of the Handling of hazardous

substances in different cases;

19. Notification relating to Prohibition against open burning of waste oil;

20. Officers/Agencies authorized to enter the premises for inspection Notification;

21. Officers/Agencies authorized to take samples Notification;

22. Officers authorized for taking cognizance of offence Notification;

23. Notification relating to environmental laboratories and analysts;

24. 2 T Oil (Regulation of Supply and Distribution) Order, 1998;

25. Notification relating to Prevention of dumpling and disposal of fly ash;

26. Taj Trapezium Zone Pollution (Prevention and Control) Authority Notification;

27. Aqua-culture Authority Notification.

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 UNIT – XIX

ROLE OF SOCIAL MOVEMENTS IN ENVIRONMNETAL MANAGEMET

INTRODUCTION:

The concept of “Environmental Resource Management” requires a large-scale

participation of the people. In fact, the whole idea has to be “of the people, by the people and
for the people”. Nicholas Polunin, a noted environmentalist has observed that “enlightened
understanding by a human being of his or her environment is a pre-requisite to saving it”.

CLASSIFICATION OF SOCIAL MOVEMENTS/ VOLUNTARY ORGANISATION:

Social Movements, reflecting largely their historical evolution, can be divided into six
groups:

1. Relief and Welfare Agencies._ (RAW) (NGOs, which provide relief and welfare
measures.)

2. Technical Innovation Organizations._ (TIO) (NGOs, which operate their own

projects to pioneer new improved approaches to problems, and which tend to remain
specialized in their chosen field.

3. Public Service Contractors._ (PSC) (These NGOs, are contracted to implement

components of official programmes because it is felt that their size and flexibility would help
them perform the tasks more effectively than Government departments.)

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 4. Popular Development Agencies._ (PDA) (These NGOs, concentrate on self help,
social development, and grassroots democracy).

5. Grassroots Development Organizations._ (GDO) (Locally based NGOs whose

members are the poor and oppressed themselves and which attempt to shape a popular
development processes. They often receive support from PDAs, though many receive no
external funding at all.

6. Advocacy Groups and Networks._ (AGN) (These are organizations which have no
field projects but which exist primarily for education and lobbying.)

SOCIAL MOVEMENTS FOR ENVIRONMENTAL MANAGEMENT:

1. Kalpavriksh (KV)._

This organization started in 1979 as a movement opposed to the destruction of Delhi’s

green areas. The main functions of the Kalpavriksh are to inculcate understanding and
concern on environmental issues especially among the youth; to conduct research in
environmental problems; to campaign on environmental issue; to evolve a holistic
environmental perspective. Kallpavriksh is developing workbooks and other material on
environment for the school level, conducting research on environmental subjects such as an
impact assessment study of the Narmada Valley Project, pesticide use in India, are pollution
in Delhi, and mining activities in Dahra Dun district. Kalpavriksh is functioning as a resource
group for NCERT and other agencies on environmental education.

Kerala Sastra Sahitya Parishad._

The Kerala Sastra Sahitya Parishad has over the last three decades grown into an
important national institution with a membership of over 25,000 with around 900 units
spread over the State of Kerala. The activities of the Parishad encompass eco-development,
creating and awareness on water and energy conservation, encouraging the use of
nonconventional sources such as smokeless chullhas.

World Wide Fund for Nature – India (WWF India)

The World Wide Fund for Nature – India (WWF – India) has been working to promote
harmony between humankind and nature for almost three decades.

Today, it is recognized as a premier conservation NGO in the country dealing with nature
conservation, environmental protection and development-related issues.

At a time when the Web of life has come under increasing threats, WWF – India’s
attempts have been to find and implement solutions so that human beings can live in harmony
with nature, and leave for future generations a world rich in natural resources and natural
wonders.

The WWF – India Mission has five broad programme components:

1. Promoting India’s ecological security; restoring the ecological balance;

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 2. Conserving biological diversity;

3. Ensuring sustainable use of the natural resource base;

4. Minimizing pollution and wasteful consumption;

5. Promoting sustainable lifestyles.

WWF earlier called as World Wild Life Fund, commenced activities in 1970 in Bombay.
This organization has approximately 200 volunteer associates and 10,000 subscriber
supporters.

The major activities of this Organization reconservation of the country’s natural heritage
through support to research, field projects, education and training, to raise funds for
conservation.

Bombay Natural History Society (BNHS):

It started to work in September 1883 in Bombay. Now BNHS is a truly important natural
institution with a high international reputation. Through its systematic and scientific studies,
the society has contributed significantly to increasing knowledge of our mammals, birds,
reptiles and other fauna and flora.

BNHS has taken a significant part in the campaigns for conservation of our natural
heritage, notably for saving the invaluable tropical forests of Silent Valley in Kerala.

The Society’s achievements have aroused public awareness of the need for
preservation of nature and have helped the country in legislating for the protection of
wildlife.

Chipko Movement:

The Chipko Movement is an ecological movement, concerned with preservation of forests

and thereby maintenance of the traditional eco-balance in the sub Himalayan region where
hill people have enjoyed a very long symbiotic relationship with forest.

This grass-root movement of the people of the region not only raised its voice against
environmental degradation but also took direct action by physical intervention in the act of
cutting the trees in order to preclude its felled. This movement arose in the economically
backward region of the Uttarakhand Himalaya where the people’s very subsistence is
intimately linked up with and relies heavily upon the well being of the forests.

The major demand of the Chipko Movement in view of the impending disaster caused by
the deforestation is to re-orient forest policy from exploiting to nurturing of the forest wealth
and changing the perception of the masses regarding forests from the suppliers of timber and
resin to the makers of soil, water and oxygen.

A.P.E. (Association for the Preservation of the Environment):

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 Association for the Preservation of the Environment (A.P.E.) is an organization formed
mainly for the preservation and protection of wildlife.

Some of the important objects of APE are:

1. To help protect wilderness areas and create more sanctuaries where necessary.

2. To report to the relevant authority of any poaching or illegal trading in wildlife or

wildlife products.

3. To prevent cruelty to animals.

4. To restore environmentally degraded and polluted areas to their pristine state.

5. To provide funds and equipment to individuals in their study and research in the field
of natural sciences.

6. To start institutes for the study of Ecology, Wildlife Management and other related
subjects.

7. To pay for law suits against offenders of the Wildlife Protection Act.

8. To financially support and equip anti-poaching squads.

9. To help in the rehabilitation of villagers and in providing alternative sources of fuel to

forest inhabitants.

10. To organize shelters for recuperation and possible rehabilitation of wild animals.

Center for Science and Environment:

The Centre for Science and Environment is one of India’s leading environmental NGOs
with a deep interest in sustainable natural resource management.

CSE’s strategy of “knowledge based activism” has won it wide respect and admiration for
the quality of its campaigns, research and publications which are trying to bring about change
in an extremely difficult situation.

For nearly two decades now, CSE has tried to educate a whole nation, from many of its
top political leaders to its numerous rural activists, about the importance of sustainable
development, especially for the daily survival of the country’s poor and its rural women.

CPREEC (C.P. R. Environmental Education Centre, Chennai):

An Autonomous Centre of Excellence of the Ministry of Environment and Forests,

Government of India established jointly by the Ministry and the C.P. Ramaswami Aiyar
Foundation.

The Centre has been set up to increase consciousness and knowledge about the
environment and the major environmental problems facing the country today.

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 It has been conducting a variety of programmes to spread awareness and interest among
the public, particularly among NGOs, women, youth and children, on all aspects of the
environment and ecology, with the purpose of promoting conservation of nature and natural
resources.

The centre concentrates mainly on the following areas:

1. Environmental education;

2. Training teachers, trainers, NGOs, etc, in environmental protection;

3. Conservation and restoration of the ecological heritage;

4. The role of each life form in the ecological chain;

5. Land and water management;

6. Involving NGOs and women in afforestation;

7. Awareness of Environmental Laws;

8. Propagation of eco-friendly technologies for sustainable development.

The centre has the following facilities to discharge its responsibility efficiently:

1. Environmental laboratory;

2. Computer division;

3. Publications division;

4. Library.

CONCLUSION:

It is interesting to note that while developed economies have been able to understand the
importance of ecology after pursuing industrialization and private profit making for nearly
250 years, the developing economy like India is trying to integrate economic process.

This shift in emphasis is primarily because of several movements based on people’s

participation, which have emerged after independence. This may ultimately provide a
different route to the development process.

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 `

UNIT – XX

INTERNATIONAL ENVIRONMENTAL LAW

FUNDAMEBTAL PRINCIPLES OF INTRENATIONAL ENVIRONMENTAL LAW:

The principles expressing the fundaments of a legal order play a very important role in
the creation, development and application of law in general. The principles are superior to
ordinary rules because the rules should be based on these principles.

International Environmental Law includes different types of principles. They are

1. General principles of law (such as the principle of good faith, etc.);

2. Principles of general international law (such as state sovereignty, duty to cooperate,

etc.); and

3. Principles which only concern international environmental issues (such as duty to

prevent environmental degradation, precautionary principle, polluter pay principle, etc.)

The fundamental principles of international environmental law, to be discussed in this

chapter are:

1. State sovereignty

2. Co-operation

3. Preservation and protection of the environment

4. Prevention

5. Precautionary principle

6. The “polluter pays” principle

7. Sustainable Development

8. Intergenerational equity and responsibilities

9. Common but differentiated responsibilities

10. Information and assistance in environmental emergencies

11. Information and consultation in cross boundary relation

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 12. Rights of individuals: equality of access to procedures and non discrimination in
environmental matters.

STATE SOVEREIGNTY:

State sovereignty is one of the oldest principles of general international law. It means that
a State has exclusive jurisdiction on its territory. In other terms, the State is the only
authority, which can adopt obligatory legal rules for its territory, has the executive power and
its tribunals are the only ones competent to judge litigation.

A State territory includes not only land but also inland waters and determined portions of
the sea.

It also includes the atmosphere above its territory. It is generally accepted space activities
are not under the jurisdiction of the territorial states.

Principle 21 of the Stockholm declaration proclaims that “states have in accordance with
the charter of the United Nations the principles of international law, the sovereign right to
exploit their own resources pursuant to their own environmental policies…”

Principle 2 of the Rio-declaration also uses the same wording, but enlarges its scope by
adding to “environmental policies” “environmental and developmental policies”. This is in
accordance with the purpose of the Rio conference focusing not only on environment but also
on development.

CO-OPERATION:

In the field of environmental protection international co-operation is necessary to

conserve the environment in its totality.

Co-operation between states for environmental protection appears most often in the work
of international organizations.

Many environmental problems cannot be solved by the simple adoption of a regulation;

they need ongoing co-operation between the concerned states.

Principle 24 of the Stockholm declaration proclaims that “international matters

concerning the protection and improvement of the environment should be handled in a Co-
operation through multilateral or bilateral arrangements or other appropriate means is
essential to effective control, prevent, reduce and eliminate adverse environmental effects
resulting from activities conducted in all spheres, in such a way that due account is taken of
the sovereignty and interest of all states”.

According to the 1982 World Charter for Nature, states shall co-operate in the
conservation of nature through common activities and other relevant action including
information exchanges and consultations.

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 Principle 7 of the Rio declaration proclaims that “states shall co-operate in a spirit of
global partnership to conserve, protect and restore the health and integrity of the earth’s
ecosystem…”

The Rio Declaration also insists on co-operation to strengthen endogenous capacity

building for sustainable development by improving scientific understanding through
exchange of scientific and technological knowledge, and by enhancing the development,
adaptation, diffusion and transfer of technologies, including new and innovative technologies
(Principle 9).

PRESERVATION AND PROTECTON OF THE ENVIRONMENT:

The principle of preservation and protection of the environment is another essential basis
of International Environment Law. There is no official definition of the term “protect” and
“preserve”.

Protection can be seen as a general principle, which includes both abstaining from
harmful activities and taking affirmative measures to ensure that environmental deterioration
does not occur.

Preservation could be considered as including long-time perspective, which take into

account the rights and interests of future generations for whom natural resources should be
safeguarded. The term “conservation” is generally used in the field of living resources and is
based upon the status quo, mainly demanding maintenance of the conditions necessary for
continued resource existence.

PREVENTION:

“Prevention” must be the golden rule for environmental protection. It is not always
possible to cure environmental injury/damage, the extinction of species of fauna or flora.

Even if the damage is reparable, the cost of rehabilitation is often prohibitive. That is the
reason why ‘prevention’ is considered the golden rule for environmental protection. As a
matter of fact, the objective of almost all international environmental agreements is to prevent
environmental deterioration, whether they concern pollution of the sea, of inland waters, of
the atmosphere or the protection of living resources.

PRECATIONARY PRINCIPLE:

The Precautionary Principle is an important innovation of the Rio Declaration. Principle

15 of the Rio Declaration provides that “in order to protect the environment, the
precautionary principle shall be widely applied by the States according to their capabilities.
Where there are threats of serious or irreversible damage, lake of full scientific certainty shall
not be used as a reason for postponing cost effective measures to prevent environment
degradation”.

THE “POLLUTER PAYS PRINCIPLE”:

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 This Principle makes the polluter liable to pay compensation and the costs to remedy the
environmental harm caused.

This Principle is considered to be the most efficient way of allocating costs of pollution
prevention and control measures introduced by the Public Authorities to encourage rationale
use of scarce environmental resources.

Principle 16 of the Rio Declaration states that “National Authorities should Endeavour to
promote the internalization of environmental cost and the use of economic instruments,
taking into account the approach that the polluter should, in principle, bear the cost of
pollution, with regard to the public interest and without distorting international trade and
investment”.

SUSTAINABLE DEVELOPMENT:

Sustainable Development is now widely accepted as the Primary goal of economic and
social activity. Sustainable Development’s recent widespread popularity began with the
publication of “Our Common Future” in 1987 (popularity known as Brundtland Report) by
The World Commission on Environment and Development (WCED).

Sustainable Development formed the corner stone underlying the Earth Summit and
dominated the Rio Declaration on Environment and Development.

The Burndtland Report defined sustainable development as “development that meets the
needs of the present without compromising the ability of future generations to meet their own
needs”.

The UNEP clarified that “sustainable development” implies “progress towards national
and international equity, as well as the maintenance, rational use and enhancement of the
natural resource base that underpins the ecological resilience and economic growth”.

Sustainable Development suggests that the primary focus of environmental protection

efforts on the international level should be to improve the human conditions.

As stated in Principle 1 to Rio Declaration “Human beings are at the centre of concerns
for sustainable development…”

Sustainable Development implies the integration of environmental and social concerns

into all aspects of economic policy.

Principle 4 of the Rio Declaration states that “in order to achieve sustainable
development, environment protection shall constitute and an integral part of the development
process and cannot be considered in isolation from it”.

INTERGENERATIONAL EQUITY AND RESPONSIBILITY:

Sustainable Development as defined in “Our Common Future” is closely associated with

the goal of Intergenerational Equity. Sustainable development recognizes each generation’s
responsibility to be fair to the next generation, by leaving an inheritance of wealth no less

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than they themselves had inherited. At a minimum, meeting this goal will require
emphasizing the sustainable use of natural resources for subsequent generations and avoiding
any irreversible environmental damage.

The concept in intergenerational responsibility has been important since the 1972
Stockholm Conference on the human environment. Principle 1 of the Stockholm declaration
proclaims that “man…. bears a solemn responsibility to protect and improve the environment
for present and future generations”.

After being repeated in many difference contexts intergenerational responsibility was

reaffirmed at the UN Conference on Environment and Development held at Rio as a Central
component of the shift to sustainable development.

Principle 3 of the Rio Declaration states that “the right to development must be fulfilled
so as to equitably meet development and environmental needs of present and future
generations.

MULTILATERAL ENVIRONMENTAL AGREEMENTS:

INTRODUCTION:

The recent few decades witnessed a remarkable growth in the level of understanding of
the dangers facing the international environment.

Environmental pollution knows no geographical or political barriers and the problem of

environmental pollution is a global problem.

Pollution in one state does not only affect the environment of that particular state but also
causes environmental degradation in the neighboring and other states.

For example, carbon emission in a particular country may cause a hole in the ozone layer
which may affect and global warming, which will affect the mankind as a whole around the
world. The study conducted by UNEP identified the presence of a 3Km thick blanket of
brownish layer of pollution spread over South Asia and most of tropical Indian Ocean.

The study points out that “the potent haze laying over the entire Indian Subcontinent –
from Sri Lanka to Afghanistan – has led to some erratic weather, sparking flooding in
Bangladesh, Nepal and north-eastern India, but drought in Pakistan and north-western India.

THE TRAIL SMELTER CASE 1941 (UNITED STATES VS CANADA):

The Trail Smelter Case 1941 (United States v. Canada) decided by the Arbitral Tribunal
is a classic example to prove the point that pollution in one country will affect the people in
the other country. The facts of the case are as follows:

The Columbia River has its source in Canada and flows past a smelter at Trail, British
Columbia, where zinc and lead are smelted in large quantities.

In 1925 and 1927, two stacks of the plant were erected to 409 feet in height and the
smelter increased output resulting in more sulphur dioxide fumes being emitted. The United

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States claimed that the added height of the stacks increased the area of damage in the United
States. From 1925 to the end of 1931, damage occurred in the State of Washington, as a result
of the sulphur dioxide emitted from the Trail Smelter. In 1928, the matter was referred to
International Joint Commission Which recommended payment of $350,000 in respect of
damage to 1 January 1932. In 1933, the United States Government made representations to
the Canadian Government that existing conditions were unsatisfactory and that damage was
still occurring. The matter was then referred to an arbitral tribunal to finally decide the
matter. The Tribunal held that “A State owes at all times a duty to protect other States against
injurious acts by individuals from within its jurisdiction” and decided that “so long as the
present Conditions in the Columbia River Valley prevail, the Trail Smelter shall be required
to refrain from causing any damage, through fumes, in the State of Washington; the damage
herein referred to and its extent being such as would be recoverable under the decisions of the
Courts of the United States in suits between private individuals”.

NUCLEAR TEST CASE:

In the Nuclear Test Case, Australia and New Zealand sought a declaration from the
International Court of Justice that the French atmospheric nuclear testing causing
atmospheric pollution, was contrary to International Law. But the International Court of
Justice, without considering the impact of nuclear testing on the environment, decided the
case on the basis that subsequent French decision to end such testing was binding and thus
the issue was moot. Again, in response to the renewed French nuclear testing in the South
Pacific in 1995, although underground rather than atmospheric, New Zealand requested the
International Court of Justice to review the situation pursuant to the 1974 judgment and
declare that France was acting illegally as being likely to cause the introduction of radioactive
materials into the marine environment and in failing to conduct the Environment Impact
Assessment. While the court referred to ‘the obligation of states to respect and protect the
natural environment’ it declared that the request had to be dismissed as not falling within the
relevant paragraph of the 1974 judgment permitting a re-examination of the situation since
the latter judgment had concerned atmospheric test alone.

INTERNATIONAL INSTRUMENTS RELATING TO CONSERVATION OF BIO-

DIVERSITY:

Flora and Fauna:

1. International Convention for protection of birds, 1950

2. International Plant Protection Convention, 1951

3. Convention on wetlands of International importance especially as Waterfowl Habitat

(RAMSAR Convention), 1971

4. Convention for Protection of the World Cultural and Natural Heritage, 1972.

5. Convention on International Trade in Endangered Species (CITES) of Wild Fauna and

Flora, 1973

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 6. Agreement on Conservation of Polar Bears, 1973

7. Convention on the Conservation of Migratory Species of Wild Animals (BONN

Convention), 1979

8. Non-legally binding authoritative statement of Principles for a Global Consensus on

the Management, Conservation and Sustainable Development of types of forests, 1982

9. World Charter for Nature, 1982

10. Protocol to amend the Convention on the Wetlands of International importance

especially as Waterfowl Habitats, 1982

11. Convention on Biological Diversity, 1992

Deforestation:

1. International Tropical Timber Agreement, 1983

2. International Tropical Timber Agreement, 1994

Marine Resources:

1. International Convention for the Regulation of Whaling, 1946

2. Agreement concerning interim arrangements relating to Poly metallic nodules of the

Deep Sea Bed, 1982

3. UN Convention on the Law of Sea (UNCLOS), 1982

4. Agreement to promote compliance with International Conservation and Management

measures by fishing vessels on the High Seas, 1993

Antarctica and its resources:

1. The Antarctic Treaty, 1959

2. Agreed measures for Conservation of Antarctic fauna and flora, 1964

3. Convention for Conservation of Antarctic Seals, 1972

4. Convention on the Conservation on Antarctic Marine Living Resources, 1980

5. Convention on the Regulation on Antarctic Mineral Resource Activities, 1988

6. Protocol on Environmental Protection on the Antarctic Treaty, 1991

INTERNATIONAL INSTRUMENTS RELATING TO PREVENTION OF

POLLUTION:

Transboundary Pollution:

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 1. Convention on long range transboundary Air Pollution, 1979

2. Protocol concerning co-operation in combating pollution in cases of emergency, 1981

3. Basel Convention on the control of transboundary movements of hazardous wastes and

their disposal, 1989

4. Bamako Convention on the ban of the import in to Africa and the control of
transboundary movement and management of hazardous wastes within Africa, 1991

5. Convention on Environmental Impact Assessment in Transboundary context, 1991

6. Convention on the Transboundary effect of industrial accidents, 1992

Marine Pollution:

1. International Convention on Civil Liability for Oil Pollution Damage, 1969

2. Convention on Prevention of Marine Pollution by dumping of wastes and other matter,

1972

3. Convention for prevention of marine pollution by dumping from Ships and Aircraft,
1972

4. International Convention for the prevention of pollution from Ships, 1973

5. Protocol relating to the Intervention on the High Seas in cases of pollution by

substances other than oil, 1973

6. Convention for the prevention of marine pollution from land based sources, 1974

7. International Convention on oil pollution preparedness, response and co-operation,

1990.

Ozone Depletion:

1. Vienna Convention for the Protection of the Ozone Layer, 1985

2. Protocol on substances that deplete the Ozone Layer (MONTREAL), 1987

3. Adjustment and amendments to the Montreal Protocol on substances that deplete the
Ozone Layer, 1990

4. Amendment to the Montreal Protocol on substances that deplete the Ozone Layer
(Copenhagen), 1992

Desertification:

1. United Nation Conference on Desertification (UNCOD), Plan of Action to combat

Desertification and General Assembly Resolution, 1977

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 2. United Nations Convention to combat Desertification in those countries experiencing
serious drought and/or desertification, particularly in Africa, 1994

Climate Change:

1. United Nation Framework Convention on Climate Change, 1992

2. Kyoto Protocol to the United Nations Framework Convention on Climate Change,

1997.

STOCKHOLM DECLARATION OF THE UNITED NATIONS CONFERENCE ON

HUMAN ENVIRONMENT, 1972

The United Nations Conference on the Human Environment, proclaimed that:

The protection and improvement of the human environment is a major issue which affects
the well being of peoples and economic development throughout the world. It was also
proclaimed that, man is both creature and molder of the environment, which gives him
physical sustenance and affords him the opportunity for intellectual, moral, social and
spiritual growth.

In the long and tortuous evolution of the human race on this planet a stage has been
reached when, through the rapid acceleration of science and technology, man has acquired
the power to transform his environment in countless ways and on an unprecedented scale.
Both aspects of man’s environment, the natural and the man-made, are essential to his well-
being and to the enjoyment of basic human rights – even the right to life itself.

It was also proclaimed in the Conference that, since, in the developing countries, most of
the environmental problems are caused by under development; the developing countries must
direct their efforts to development, bearing in mind their priorities and the need to safeguard
and improve the environment. For the same purpose, the industrialized countries should make
efforts to reduce the gap between themselves and the developing countries.

The Conference further proclaimed that, defending and improving the human
environment for present and future generations has become an imperative goal for mankind, a
goal to be pursued together with, and in harmony with, the established and fundamental goals
of peace and of world-wide economic and social development.

The Conference called upon governments and peoples to exert common efforts for the
preservation and improvement of the human environment, for the benefit of all the people
and for their posterity.

The UN Conference on the Human Environment held at Stockholm from 5th to 16th June
1972 considered the need for a common outlook and for common principle to inspire and
guide the peoples of the world in the preservation and enhancement of the human
environment.

The Stockholm Conference has laid down 26 principles to be followed by the States for
the preservation and improvement of the human environment.

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UNITED NATIONS ENVIRONMENT PROGRAM (UNEP):

After the UN Conference on Human Environment, 1972 the United Nations

Environment Program (UNEP) was established. UNEP has played a very important role in
the evolution of conventions and instruments in the field of environmental protection.

UNEP is based in Nairobi and the Governing Council of UNEP consists of 58 members
elected by the UN General Assembly. UNEP has been responsible for the development of a
number of International instruments like the 1985 Vienna Convention for the protection of
the Ozone Layer and the 1987 Montreal Protocol and the 1992 Convention on Biodiversity.

RIO DECLARATION OF THE UNITED NATIONS CONFERENCE ON

ENVIRONMENT AND DEVELOPMENT, 1992:

In 1992, representatives of over 150 countries assembled in Rio de Janeiro, Brazil, for the
United Nations Conference on Environment and Development (UNCED) what was popularly
known as the Earth Summit.

The Rio Summit is considered an important milestone in establishing important linkages

between environment and development and in defining the concept of “sustainable
development”. The Rio Declaration set out general principles for sustainable development,
and the Climate Change Treaty, the Convention on Biodiversity and the framework of
principles on conservation and use of forests and established important steps that needed to
be taken to guarantee an environmentally stable and sustainable planet.

The United Nations Conference on Environment and Development held at Rio de Janeiro
from 3rd to 4th June 1992 has proclaimed 27 principles.

The objects of the UN Conference of the Environment and Development are:

1. To establish a new and equitable global partnership through the creation of new levels of
cooperation among states, key sectors of societies and people;

2. To work towards international agreements to respect the interest of all and protect the
integrity of the global environmental and developmental system; and

3. To recognize the integral and interdependent nature of our earth

PRICNPLE – 3 – The right to development must be fulfilled so as to equitable meet

developmental and environmental needs of present and future generations (Doctrine of
Intergeneration equity).

PRINCIPLE – 4 – In order to achieve sustainable development, environmental

protection shall constitute an integral part of the developmental process (Doctrine of
Sustainable Development).

PRINCIPLE – 15 – In order to protect the environment the precautionary approach shall

be widely applied by the states. Lack of scientific certainty shall not be used as a reason for

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postponing cost effective measures to prevent environmental degradation. (Precautionary
Principle)

PRINCIPLE – 16 – National authorities should endeavour to promote the internalization

of environmental costs taking into account the approach that the polluter should bear the cost
of pollution. (Polluter Pay Principle)

AGENDA 21:

Agenda 21 was one of the instruments adopted at the United Nations Conference on
Environment and Development (UNCED) held at Rio de Janeiro in 1992.

Agenda 21 is a non-binding instrument that presents a set of strategies and detailed

programmes to halt and reverse the effects of environmental degradation and to promote
environmentally sound and sustainable development in all countries.

The Agenda 21 aims at establishing a global partnership among governments, the general
public, NGOs and other groups for sustainable development.

UNITED NATIONS FRAMEWORK CONVENTION ON CLIMATE CHANGE 1992:

The states which participated in the United Nations Conference on Environment and
Development held at Rio de Janeiro in 1992 and which were determined to protect the
climate system for present and future generation, signed the convention called the United
Nations Framework Convention on Climate Change (UNFCCC), 1992

Those States, which acknowledge that change in the earth’s climate and its adverse
effects, are a common concern of human kind and those States which were concerned that
human activities have been substantially increasing the atmospheric concentrations of
greenhouse gases, and that these increases enhance the natural greenhouse effect, and that
this will result in an additional warming of the earth’s surface and atmosphere and may
adversely natural ecosystems and humankind, signed this Convention.

KYOTO PROTOCOL TO THE UNITED NATIONS FRAMEWORK CONVENTION

ON CLIMATE CHANGE, 1997:

In 1995 several nations agreed that voluntary reductions in so called greenhouse gases
were not working. The group set a deadline – namely the Kyoto Conference - to establish
legally binding targets for reducing emissions in carbon dioxide, methane and Nitrous oxide.
Therefore a conference was held at Kyoto on climate change on December 1, 1997 to review
the progress made in five years from UNFCCC 1992 and to formulate plans and fix
strategies and objectives for the future.

THE JONNESBURG DECLARATION OF THE WORLD SUMMIT ON

SUSTAINABLE DEVELOPMENT, 2002:

The World Summit on Sustainable Development is a coordinated international effort to

translate rhetoric into action for tackling poverty while sustaining environment. The Summit

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represents a major leap forward in the development of partnerships with the UN,
Governments, Business and Civil Society coming together.

At the Summit, the UN Secretary General Mr. Kofi Annan observed that, “the model of
development we are accustomed to have been fruitful for the few, but flawed for the many.
A path to prosperity that ravages the environment and leaves a majority of humankind behind
in squalor will soon prove to be a dead end road for everyone”.

He hoped that the World Summit on Sustainable Development in Johannesburg would

mark the opening of a new chapter of responsibility, partnerships and implementation.

His hopes did not fail because at the end of the summit, the participating countries
happily accepted the responsibility and commitment to Sustainable Development. The most
interesting feature of the World Summit on Sustainable Development is that the participating
countries not only accepted the commitments but also set targets and prescribed timetables
for implementation of the Johannesburg plan.

NEED FOR AN EFFECTIVE INTERNATIONAL INSTITUTIONAL MECHANISM:

Devised during the infancy of environmental awareness, when problems were perceived
as largely local, relatively distinct, and subject to technological fixes, the current international
environmental regime is weak, fragmented, lacking in resources and handicapped by a
narrow mandate.

There is motion, but there is little progress. More than 500 multilateral environmental
treaties are now in existence, more than a dozen international agencies share environmental
responsibilities and yet environmental conditions are not improving across a number of
critical dimensions.

In spite of the tremendous development of international law, even after thirty two years
after the Stockholm Conference on the Human Environment, the International Community
lacks effective institutional and legal mechanisms to address the global environmental issues.

UNIT – XXI

REGION SPECIFIC ENVIRONMENTAL PROBLEMS IN THE STATE OF

TAMIL NADU

SOME IMPORTANT DETAILS ABOUT TAMIL NADU:

Tamil Nadu is situated on the southeastern side of the Indian Peninsula. It is bounded
on the east by the Bay of Bengal, on the south by the Indian Ocean, on the west by the State
of Kerala and Karnataka and on the north by Karnataka and Andhra Pradesh.

SOME IMPORTANT INFORMATION ABOUT TAMIL NADU:

 Area : 130,058 sq.kms.

 Capital : Chennai

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  Language : Tamil

 Districts : 32

 Population : 7, 21, 47,030.

 Density

(Persons per sq. km) : 555

 Literacy : 80.09%

WATER POLLUTION:

Water quality monitoring in Tamil Nadu:

Pollution of ground water, rivers and lakes in and around towns and cities is caused
mainly by

(a) Industrial wastes and

(b) Domestic sewage discharges.

The Ground Water Division of the Public Works Department and the Hydro geological
Division of Tamil Nadu Water supply and drainage Board of the Government of Tamil Nadu
undertakes the monitoring of ground water quality in Tamil Nadu.

The Central and State Pollution Control Boards are monitoring surface as well as ground
water quality under programmes like Monitoring of Indian National Aquatic Resources
(MINARS) and Global Environmental Monitoring System (GEMS)

Water Pollution Due to Sewage Discharges:

Discharge of sewage to river or the sea is common practice in towns and cities located
along rivers or on the coast. A survey conducted by the Central Pollution Control Board
(CPCB) in 1988 clearly showed how efficient the class – I and Class – II towns are in terms
of collection and treatment of sewage.

As per study conducted in 1988 by the Central Pollution Control Board, the sewerage
system in six of the nine cities/towns studied by it, shows that only three have an
underground drainage system-Chennai, Madurai, Coimbatore. The collection of wastewater is
72.00 mld for Madurai and 68.21 for Coimbatore of which only 41.85 and 10.44 mld is
collected respectively.

The wastewater is discharged into the Cauvery River in Trichirapalli and Noyyal River (a
tributary of Cauvery) in Tiruppur and Coimbatore, Whereas Tuticorin discharges into the
Sea.

Thanjavur, Madurai and partially Coimbatore use the water for irrigation purposes. The
city of Chennai earlier discharged the wastewater partly into the sea and partly used it for
irrigation but as of today all the wastewater is discharged into the sea.

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Water Pollution due to Industrial Discharges:

The Central pollution Control Board has classified industries, which could cause a high
degree of pollution ad “Red” industries.

The study report by Stanly Associates shows that there are altogether 3,226 industries in
the State but wastewater data is available only for 2,115 industries.

Of these 1522 are small, 388 medium and 205 large scale. The large industries generate
more than 85% (i.e. 5,16,530 cubic meter) of effluents per day, whereas the small and
medium industries generate 10% and 4.5% of effluents per day respectively.

An estimated 6,03,890 m3 of effluents are generated by all the 2,115 industries. More than
36% of the wastewater is generated by four thermal plants (54,846 m3 per day), 57% of
which is discharged untreated.

Chemical industries contribute more than 11% of discharges (2,101m3) of which nearly
91% (1,908 m3) is generated by large industries alone. Only 65% of the wastewater from the
large chemical industries is treated.

Much of the effluent generated by oil refineries, textile, dye, and chemical thermal, steel
and spinning industries discharged untreated.

The same problem exists for medium scale industries like fertilizers, pharmaceuticals,
textiles, and spinning mills.

Small industries especially electroplating, petrochemicals, textiles, oil refineries, cements,

tanneries, dyes and pharmaceuticals mostly discharge the waste untreated which is a matter of
concern due to the potential damage caused to the environment by tanneries which is largely
small scale production. Industries in the miscellaneous category more than 25% of total
industrial discharges. Seventy percent of these units are small scale.

Several industries are located in the three districts of Vellore, Kancheepuram, and
Chennai. Most of these industries do not have waste treatment facilities. Effluents end up in
the land causing pollution of the soil and ground water.

The Palar river which serve as the drinking water source for many urban areas including
Chennai city is now getting polluted.

The other basins like Tamiraparani and Cauvery also face similar problem. The tanneries
have caused immense damage to the ground and surface water in the towns of Vaniyambadi,
Erode, Ranipet, Vellore and Dindigul.

Karur, Tiruppur, Bhavani and Salem face a similar problem due to the growth of the
textile and sago industries. Chemical and cement units in Cuddalore, Mettur, Tirunelveli and
distilleries and sugar industries in Kancheepuram and South Arcot districts are identified as
potentially pollution causing industries.

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 Thermal plants in Chennai, mettur, Tuticorin, Neyveli also fall in this category. Several
mining activities like Magnesite in Salem, Lignite in Neyveli, granite in North Arcot and
quarrying in many parts of the State cause destruction of natural landscape and topography of
the region.

Pollution from Hazardous Industries:

Under the Environment Protection Act of 1986 the Government of India notified the
Hazardous wastes (Management and Handling) Rules In 1989. Any industry involved in the
storage, handling or disposal of hazardous wastes is required to obtain authorization of the
Tamil Nadu Pollution Control Board.

The Central Pollution Control Board has identified 232 red and hazardous industries in
the State.

The District level information shows that a majority of these industries are concentrated
in 4 districts viz., Kancheepuram, Dharmapuri, Vellore and Coimbatore.

A large number of industries i.e., 153 units generate sludge arising from treatments of
waste water containing heavy metals, toxic, organic, oil emulsions, etc. of the 153 industries,
45 units are yet to get authorization from Tamil Nadu Pollution Control Board. 42 industrial
units generate large quantities of waste in the form of discarded containers.

15 units generate cynaide waste and 6 of them have not obtained authorization.

There are 39 red industries in the five towns of Madurai, Coimbatore, Tiruchirapalli,
Chidambaram and Kodaikanal generating solid, semi-solid and liquid wastes. Generally a
large number of these industries are disposing of the wastes in an unsatisfactory way which
could have potential environmental problems.

Most of the other units either sell their waste or store it within the premises.

The largest numbers of industries are located in Chennai Metropolitan area followed by
Coimbattore, Tiruchirapalli and Madurai.

Slurry, sludge, waste oils, mercury, cadmium, lead, chromium, cyanide and discarded
products contribute a large quantity of waste in Chennai.

Hazardous waste in Coimbatore carries waste consisting of lead, chromium, waste oil,
sludge, etc.

The quantum of waste generated in Madurai is 212.54 tons per year and in Tiruchirapalli
the total waste in the form of sludge is 37 tons per year.

Liquid waste of 144 kilolitres per year is generated in Coimbatore and 3900 kilolitres of
wastes per year containing lead, chromium and 29.5 kilolitres per year of waste oils in
Tiruchiraplli.

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AIR POLLUTION:

Air Quality Monitoring:

The main functions of TNPCB are to improve the quality of air and to prevent, control
and abate air pollution in the State.

Air Quality Monitoring is undertaken by TNPCB. In Tamil Nadu only in three cities,
Chennai, Coimbatore and Tuticorin are regularly monitored for the Ambient Air Quality.
There are 13 monitoring stations in these three towns.

Sulphurdi-oxide, oxides of Nitrogen, suspended particulate matter and infrequently

carbon mono oxide levels are monitored in these locations.

Due to increasing vehicular pollution, an ambient air quality survey was conducted in
1995. Test were carried out on 73274 good vehicles. Totally 14553 vehicles emitted
emissions which exceeded the permissible standards.

Vehicular monitoring programs are being considered for 3 districts viz., Kancheepuram,
Dindigul and Nilgiris.

Tiruchirapalli, Salem and Madurai were brought under Air Quality Monitoring programs,
with three locations in each station from 1988-99.

In the ninth five year plan industrial estates at Tuticorin and SIPCOT – Cuddalore will be
effectively monitored for industrial air emissions.

The air pollution in an area is influences by the local topography. Sulphur-di-oxide and
suspended particulate matter are result of burning of fossil fuels.

Industries contribute sulphur-di-oxide and suspended particulate matter emissions.

Vehicles using petrol emit oxides of Nitrogen, carbon-mono-oxide, hydrocarbons and lead
whereas sulphur-di-oxide, oxides of nitrogen and particulate emanate from diesel vehicles.
The pollutants SPM, CO and oxide of Nitrogen can cause adverse health effect.

Despite the limited data on vehicular emissions there is still some indications that many
secondary cities too are affected by vehicular pollution due to congestion or low road density
as in Tiruppur, Kodaikanal, Coimbatore and Madurai.

In the case of Primary City Chennai it is important to note that large populations reside in
industrial locations as identified by the Pollution Control Board like Puraswalkam,
Kathivlkkam, Thiruvottiyur, Ambathur.

The pollution levels at these locations are extremely high in comparison to the standards
for residential areas.

In Chennai total vehicular emissions is 297 tons per day. Carbon mono oxide emissions
are the maximum, much of this is due to four wheelers (154.86 tons per day) followed by two
wheelers (39.06 tons per day).

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 The emissions load from diesel driven vehicles is less due to their number. Hydrocarbon
pollution results mostly from petrol driven vehicles.

NOISE POLLUTION:

Various studies on Noise levels show that residential, commercial, industrial and silence
Zones in Thiruchirappalli, Coimbatore, Madurai and Chennai are generally found to be noisy.

In Thiruchirapalli commercial areas like the Railway over bridge and Central Bus Stand
recorded very high noise levels of 102 and 100 decibels which exceeded the permissible
levels of 65dBA.

In Coimbatore too noise levels at all the commercial locations were high. In Madurai
commercial areas had noise levels around 75db. In Chennai silence and commercial and
residential area were noisy both during the day as well as the night time.

COSTAL ENVIRONMENT NEAR URBAN AREAS:

Tamil Nadu has a 1000 km long coast line. Petrochemical, fertilizer and chemical
industries located in the three major coastal towns of Chennai, Cuddalore and Tuticorin,
discharge their wastes into the sea.

TNPCB has identified 32 coastal stations for regular monitoring of coastal water quality.
Industry and domestic waste water discharges that finally end up in the coastal water has
caused extensive pollution.

An extensive coastal monitoring progral conducted between 1987 to 1992 by the Central
Pollution Control Board has found high dissolved oxygen at Adyar, high nitrate concentration
at Adyar (0.01 and 548 micrograms/litre) and Coovum (0,01 and 35.39 micrograms/litre) and
high lead leavels at Coovum (70 micrograms/gram of dry weight).

Coastal pollution also occurs due to waste being discharged in the rivers. There are
several towns located in the vicinity of rivers like Cauvery, Vaigai, Palar and Thamirabarani.

Discharge of untreated domestic and industrial wastewater into the estuaries in Chennai is
quite high.

A study of the impact of this pollution on fish has shown a reduction in fish species
diversity. Heavy metals like mercury, cadmium, copper, zinc, nickel, lead and iron were
found in the muscle, gill and liver tissues of fish. The consequences of fish consumption on
human health are a matter of concern.

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 III YEAR OF 3 YEAR LL.B

SEMESTER - V

ODD SEMESTER

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SUBJECT : LABOUR LAW-II
SUBJECT CODE : TA5D

Page 2 of 148
 SYLLABUS
TA5D - LABOUR LAW-II
Unit - I Introduction: Social Security and Labour Welfare
Concept, Evolution and Constituents of Social Security - Object of Social Security
Laws - Social Security and Constitution - ILO on Social Security
Unit - II Social Security: Industrial Injuries
The Employees' Compensation Act, 1923: Scope, Objects, Coverage and Definitions-
Liability of the Employer to Pay Compensation - Personal Injury, Accident arising out of and
in the Course of Employment, Doctrine of Notional Extension and Occupational Diseases -
Determination and Distribution of Compensation - Principal Employer's Right of Indemnity -
Commissioner's Powers and Functions.
Unit - III Social Security: Social Insurance
The Employee's State Insurance Act, 1948: Objects, Applications and 'Seasonal
Factory' - Definitions - E.S.I. Corporation - E.S.I. Funds, Payment of Contributions - E.S.I.
Benefits - Adjudication of Disputes - E.S.I. Court - Penalties.
Unit - IV Other Social Security Legislations
The Maternity Benefits Act, 1961: Object and Application - Eligibility and Maternity
Benefits - Notice of Claim Prohibition against Dismissal, Wage Deduction - Powers and
Duties of Inspectors.
The Employee's Provident Funds and Miscellaneous Provisions Act, 1952: Scope,
Coverage, Application and Definitions - Authorities, their Powers and Functions
Contributions - Employees Provident Fund Scheme, Employees' Pension Scheme and
Deposit Linked Insurance Scheme -Penalties.
The Payment of Bonus Act, 1965: Bonus Commission - Definitions and Coverage -
Kinds of Bonus - Eligibility and Extent of Bonus - Calculation of Bonus - Available Surplus,
Allocable Surplus, Set On Set Off - Forfeiture of Bonus - Prior Charges - Machinery.
Payment of Gratuity Act, 1972: Background, Object and Definitions - Eligibility for Payment
of Gratuity - Forfeiture, Exemption, Determination - Controlling Authority -Penalties.
Unit - V Labour Welfare Legislations
Factories Act, 1948: Background and Definitions - Formalities to start a Factory -
Health, Safety and Welfare Measures - Working Hours - Employment of Young Persons -
Annual Leave with Wages - Special Provisions.
The Tamil Nadu Shops and Establishment Act, 1947: Applicability and Person
covered by this Act, - Opening and Closing Hours - Employment of Young Persons -
Working Hours, Public Holiday, Safety, and Cleanliness - Leave and Annual Leave with
Wages.

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Statutory Materials with Amendments
1. The Employees' Compensation Act, 1923
2. The Employees' State Insurance Act, 1948
3. The Maternity Benefit Act, 1961.
4. The Payment of Bonus Act, 1965.
5. Payment of Gratuity, 1972.
6. Factories Act, 1948.
7. The T.N. Shops and Establishment Act, 1947.

Books for Reference:

1. S.N.Mishra : Labour and Industrial Law
2. V.G. Goswami : Labour Law
3. Madhavan Pillai : Labour and Industrial Law
4. S.C.Srivastava : Social Security and Labour Laws
5. K. D. Srivastava : The Employees' Compensation Act, 1923
6. K.D. Srivastava : The Employees' State Insurance Act, 1948
7. K. D. Srivastava : The Employees' Provident Funds and Miscellaneous Provisions Act,
1961.
8. K. D. Srivastava : The Payment of Bonus Act, 1965
9. K. D. Srivastava : Payment of Gratuity, 1972
10. K. D. Srivastava : Factories Act, 1948
******************

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 LABOUR LAW – II

UNIT – I

INTRODUCTION: AND SOCIAL SECURITY AND SOCIAL WELFARE

INTRODUCTION:

Labour at all times, has been recognized as a separate factor of production. In

economy, every work whether it is manual or mental which is done for monetary purpose is
called ‘labour’. Various differences are found in the opinion with regard to the importance of
labour as to, what is productive or unproductive but it can be said that no production can be
done without the dedicated and efficient labour force.

However, labour is manifestly different from other factors of production and has got
certain characteristics which arise a lot of problems in all countries. In different countries
different problems are found because of different ecological problems and human nature. So,
both physical and mental work considered as labour which is inseparable and perishable
commodity.

The quantity and quality of labour are both a cause and consequences of economic
development. If it is called the backbone of nation it would not be taken as exaggeration.
Since the time immemorial, labour works as a mean of production without the consideration
of various systems working in different countries and modes of productions. Most of time,
labour is considered as a source of production but no one try to look into another part which
signifies it as a major segment of population and beneficiary of the fruits of development.
These benefits and fruits are given to them as the measures of labour welfare and social
security by the factory owners and government during their employment.

SOCIAL SECURITY

Social security in a welfare state like India has assumed great important in recent
years. Social security is now spreading all over the world. To provide social democracy,
social security is very necessary because without security, democracy can never be enjoyed.
Social security measures provide a kind of protection and stability in midst the stress and
strain of modern life. Social Security is one of the fundamental human rights as provided in
the Universal Declaration of human rights adopted by General Assembly of United Nation on
10 December, 1948

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 A welfare state always works for the help, benefits and welfare of its human beings.
Modern welfare states have comprehensive welfare schemes to take care of its citizens from
“Womb to Tomb.” Social security is one of the important pillars of the welfare state on which
the whole structure of it rests. In a few countries, from its modest beginning in early decades
of present century, social security has now become a fact of life for millions of people
throughout universe. The economic and social policies of all the developing and developed
countries are influenced by it presently so every kind of economy is now not far away from
the social security of labour class.

CONCEPT AND MEANING

Social security is a dynamic concept and dynamism cannot be defined using rigid
limits. The concept of social security is based on ideals of human dignity and social justice.
The basic philosophy of social security is that a citizen who has contributed to his country’s
welfare should be given protection against certain hazards of the life to which he is exposed
to either in his working life or consequence of it. Social security is a way to ensure a person
against various problems and mis happening of the life.

Social justice is not a narrow or one sided approach or concerned about small details
and rules and is not limited to industrial adjunction alone; it is very comprehensive in its
domain. Socio-economic equality is its basic aim and it works to remove every king of
disparities working in society. With the concept analysis of social justice it can be said that
there is a close relationship between social justice and social security. According to Leo
Wildman there is no lasting peace without social security.

The social security has been mentioned in early Vedic Hymns which wishes everyone
to be happy, free from ill health, enjoy a bright future and suffer no sorrows. It does not work
in a similar form throughout the world but it varies from country to country and time to time.
Social security schemes are affected by the economic growth of concerned country. In every
country, now it has become a vital part of national programmes and policy which strikes on
the roots of various problems for the well being of those persons who become incapable
earning their livelihood. It works to develop the idea of welfare state. Social security is an
integral part of labour welfare.

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SOCIAL SECURITY DEFINED
Various organizations and intellectuals define social security according to their views
and ideas and include distinct components in it. I.L.O. defines social security as “The security
that the society furnishes through appropriate organization against certain risks to which its
members are exposed. These risks are essentially contingencies against which the individual
of small means cannot effectively provide by his own ability of foresight alone or even in
private combination with his fellow. It is characteristic of those contingencies that they
imperil the ability of the working man to support himself and his dependents in health and
decency.”

Friedlander defines social security as “A programme of protection provided by

society against contingencies of modern life like sickness, unemployment, old age,
dependency, industrial accident and invalidism against which the individual cannot be
expected to protect himself and his family by his own ability or foresight.”

According to Weber and Cohen, “Social security is a controversial and dynamic

subject with various facets- philosophical, theoretical, humanitarian, financial, administrative,
social, economic, statistical, actuarial, medical and legal.”

W.A. Robson defines social security comprehensively “Social security is a way of

ensuring freedom from want or poverty which is one of the formidable obstacles in the way
to progress. Social security implies insurance against those misfortunes to which an
individual remains exposed even when the condition of society as a whole improves. It does
not include the various measures for improving the condition of society- full employment,
minimum wages, factory laws, public health, housing, education and so forth.”

Maurice Stack says that, “Each country must create, consume and build up the
intellectual, moral and physical vigour of its active generation prepare the way for its future
generations, and support the generation that has been discharged form productive life. This is
social security; a genuine and rationale economy of human resources and values.”

According to Lord William Boveridge, “The term social security is used to denote the
security of an income to take place of the earning when they are interrupted by
unemployment, sickness or accident to provide for retirement through age, to provide against
loss of support by the death of another person, and to meet exceptional expenditure, such as
those connected with birth, death and marriage.”

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 Lord Boveridge is very comprehensive about the social security in his definition and
seems to attack on five giants’ viz. want, disease, ignorance, squalor and idleness. To
understand the severity of these five contingencies explanation is necessary as follows:

(a) Want
A worker during and after job always faces strictness of want and to satisfy such
wants sufficient money is required by him. His family sometimes entirely depends on him
and he has to fulfil all their desires so sufficient income must be given to him in return of his
services to achieve all basic needs of life.

(b) Disease
Disease is such a thing to which no one can run away, everyone can be infected by it
and it plagues the workers more. Modern industries use complicated machinery without the
safety measures and dangerous liquors are also brought in services which sometime prove
harmful for the workers. So proper preventive measures must be adopted

(c) Ignorance
Ignorance can be harmful for the workers because lack of awareness and knowledge
can create a lot of problems for them. Ill- informed workers are surrounded by darkness and
misunderstandings about health, welfare, social security, strength of union etc. Ignorance can
be removed through education, training about work, vocational guidance programmes.

(d) Squalor
Squalor, pollution, insanitation are the cause of various diseases and health related
problems to workers and to general public nearby industrial areas. It means all those evils
which come through unplanned growth of industries and cities, bad housing, dumping of
waste material in rivers and destruction of forests prove harmful for industrial workers. Thus
remedial measures against squalor means planned industrial growth and revolution in
housing.

(e) Idleness
Employment is very much necessary for every worker to maintain the necessities. The
work must be provided to all who are willing to do work, because empty mind can never
think positively and constructively. So employment must be ensured to every hand.

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MAIN CONSTITUENTS OF SOCIAL SECURITY
Social security is provided through various methods to its beneficiaries, different
countries adopt different constituents or methods for it but in practice, there are three or four
main constituents of social security, viz.

(i) Social Insurance

(ii) Social Assistance

(iii) Public Services

(iv) Allied Services

SOCIAL INSURANCE

Social insurance is one of the devices to prevent individual from falling into deep
poverty and contingencies. It helps a person at the time of uncertainties and misfortune.

The I.L.O. defines ‘Social Insurance’ as a scheme that provides benefits for persons of
small earning granted as of right in amounts which includes in it combine contribution of
insured person as well as employer and state. It is a group idea which helps a needy. In this
insurance workers have to contribute a little but major portion is paid by employer or state
and in return of a little contribution, a worker will get every kind of help in emergency.
Social insurance scheme try to maintain a minimum standard of living to the beneficiaries.

For industrial workers this insurance is totally compulsory due to the hazardous
working conditions. Social insurance is social in nature because of collective efforts but
contrary to it, commercial insurance is profit oriented which provides as much helps as much
contribution has been made.

SOCIAL ASSISTANCE

Social assistance is a device of social security to provide every kind of help to a

person at the time of earning loss. It depends on certain conditions and legalities between
worker and the state. This assistance is purely a matter of government and beneficiary has not
to pay for it. Social assistance is provided until need remains continue. For this help a person
needs not to give any service in return but means test is necessary, a person has to prove
himself capable for this benefit.

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 In many countries this is the successor of the former poor law system transformed to
accord with current social attitude. This system is non-contributory so public revenue funds
are being utilized for it.

PUBLIC SERVICES
Public services are also an important type of social security constituents. It provides
both cash and medical benefits. It covers the programmes such as National Health Services,
Old Age Pensions, and Pension for Invalidism, Survivor’s Pension to Widow or Orphan etc.

ALLIED SERVICES
Social insurance and Social assistance are two main constituents of social security but
allied services include some other schemes of social security, such as mutual benefits
schemes in which labourers contribute, the employer’s financed schemes which are made by
employers to help the workers and employers’ employees’ financed schemes which are built
collectively for the workers’ welfare.

NEED OF SOCIAL SECURITY

In modern century whenever society is becoming industrialized and workers are
migrating from agriculture to industries, the burden is increasing on industrialists of their
security. There was a time when after migration they had relations with relatives and they did
help to them at the event of contingencies but now due to the busyness of modern society and
work pressure, workers become disconnected with rural areas and have no sources and saving
of protection. Social security is very much necessary for them.

Every society today faces a situation which has never been known before. The
imbalance industrial development and unexpected growth of population have created a lot of
problems and complications. Contingencies of industrial as well as general life are also
increasing day by day. Individualism is affecting the people badly.

Hence, to protect the individual and society from uncertainties of future social
security has been adopted by every country as an indispensable national programme. Any
measure of social security strikes at the roots of poverty and exploitation. Its ultimate goal is
to provide social as well as economic justice to all.

Social security works as a factor to fulfil the concept of welfare state which provides
security to the members of society against unprecedented want, hazards, accident,

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contingencies of further life. Financial resources of developing countries are not so enhanced
therefore its population, mainly working class, has to live in deep deprivation so the need of
social security in such countries can hardly be avoided especially for working class.

Social security is also needed to reduce or minimize the uneven distribution of income
assets and wealth. The insufficiency of wages to maintain the large families is a major cause
of poverty. In such a low income large poor families are not able to get an appropriate living
standard and health facilities.

Apart to such families, there are also some families who have sufficient income but
due to the debt of exceptional expenses like marriage, hospitalization, medical expenses,
serious injuries or accidents, are not capable to maintain expenditures and fall in poverty. In
such circumstances people needed subsidized services or cash benefits or medical facilities to
come out of such situations.

Every employer or industrialist want to increase the production of factory and it can
be possible if the workers of his factory will be happy and satisfied so to make them facilitate
and secure, inside as well as outside the establishment, welfare and social security activities
are necessary.

In India, it is well known that workers get low wages so whenever they meet any
problem or calamities and seasonal unemployment they with their families indulge in child
labour, beggary and even in prostitution which is social evils so to stop such activities
government should formulate some rule-regulations, legislations for the financial help of
workers. The concept of welfare economy also forced government to give all kind of help to
every human being so that they can survive respectfully and easily in society after mishap
pining, retirement and old age.

AIM OF SOCIAL SECURITY

Social security represents society’s current answer to the problem of economic
insecurity. Social security measures have a twofold significance for every developing
country. They constitute an important step towards the goal of a welfare state, by improving
living and working conditions and affording the people protection against the uncertainties of
the future. These measures are also important for every industrialisation plan, for, not only do
they enable workers to become more efficient, but they also reduce wastage arising from
industrial disputes causing work stoppages. Hence, the aim of all social security measures is
three fold in nature which are as follows:

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1. Compensation
It aims to substitute income when there is interruption of earnings due to
unemployment, sickness, permanent disability, old age etc.

2. Restoration
It is designed to provide certain services like medical care to the sick and invalid and
rehabilitations in cases of need.

3. Prevention

Social security measures not only provide reliefs when occasions require expenditure
that strains family budget, but also prevents the risks from arising in the first place itself.
Prevention is designated to avoid the loss of productive capacity due to sickness,
unemployment or invalidity and to render the available resources which are used up by
voidable disease and idleness and this increase the material, intellectual and moral well being
of the community.

HISTORICAL PERSPECTIVE
Social security is as old as human itself. Even in primitive community the particles of
social security were found. In ancient time, kings also helped the poor and disabled of his
state. There was a time when human needs were limited, society was not so developed and
families were joint there was no need of formal social security schemes. People always did
the help of each other and crèches, guilds, religious institutes, charitable institutions always
provide required help to the needy persons. Some voluntary organizations were also working
but all these efforts were voluntary in nature not compulsory.

Since the Industrial revolution up to 1880, three approaches, namely saving plans,
private insurance and employer’s liability plans were established in Europe to safeguard the
interests of workers. Government was acting under the so-called poor laws. But all such
measure was not sufficient and due to the rapid industrialization, risks were increasing for
worker’s life. So a formal social security system was needed.

Social security originated in Germany when in 1881, Emperor William I urged upon
the Reichstag to adopt social insurance scheme. Further, Bismarck was also a great supporter
of social insurance in Germany.

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 Great Britain introduced in 1908, a non-contributory old age pension scheme for the
persons reached the age of 70, then in 1911, a unemployment insurance scheme was adopted
but it was U.S.A. who adopted the first comprehensive legislation in this respect the ‘Social
Security Act, 1935’. Another important Social Security Act was passed in 1936 in New
Zealand which provided through this Act a compulsory social insurance scheme and soon
other countries of world followed the social security schemes to save their citizens from
hazards and contingencies of life.

The Second World War became a big reason for the expansion of this scheme because
after Second World War there was a scarcity of commodities and people were feeling
helpless and they need some help. In 1942, Beveridge Report played vital role in
reorganization of social security schemes.

PROGRESS OF LABOUR WELFARE AND SOCIAL SECURITY

LEGISLATIONS IN INDIA
Labour welfare and social security measures and legislations are influenced by
humanitarian principles in India. In the starting era of industrialization (before independence)
there was no welfare and social security measure introduced by industrialist and no proper
legislations have been made to ensure welfare and social security by government. Workers
were not aware and no efforts had been made to provide facilities at their work place but after
independence Indian government took keen interest to provide social security to workers so
the historical development of labour welfare and social security in India can be divided into
two phases:

(i) Pre-Independence Period

(ii) Post-Independence Period

PRE-INDEPENDENCE PERIOD
In India large scale factories were started since 1850, but at that time industrial
development was not so fast, it was very slow and it was mainly confined to the textile
industry.

It was the period when the labour enactments were initiated for ‘regulating the
relationship’ rather than ‘protection of labour’ from exploitation. In the movement of labour
class first unrest come before in 1877 at Empress Mill Nagpur which was regarding the
improvement of wages that was below the satisfaction. At that time, workers were not

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organized. But after the Empress Mill unrest, workers fight for their rights till the Factories
Act, 1881 was not passed.

The first trade union organization was formed in year 1890 by Narayan Maghajee
Lokhande, named as the "Bombay Mill Hand’s Association" it was not so strong but it was a
start of organized movement in India. In 1885, British Government passed the Fatal Accident
Act. This Act was an important Social Security Act, which required the employers to pay
compensation to his employees if it was proved in court that the accident was not occurred
due to the employees’ negligence.

In 1920, International Labour Organization (I.L.O.) played an important role in social

security of labour by organising a convention. The First World War created a kind of unrest
among the workers so to please them British Government passed Workmen’s Compensation
Act, 1923 and Maternity Benefit Act. The main objective of these Acts was to ensure the
social security for male as well as female workers.

Then in 1929, Royal Commission was appointed in chairmanship of J.H. Whitley to

survey about the working conditions of labour class and the Commission put the stress on
comprehensive social security scheme. Then government tried to introduce the sickness
insurance in India so they designed a contributory health insurance scheme in 1937 but there
was no provision for medical benefit in the scheme. Many committees were appointed to give
suggestions on sickness benefits, medical benefits, health provisions and after a long process
a ground was made for Employees’ State Insurance Act, which was formally passed after
independence. It was a complete plan for the health insurance of workers.

POST-INDEPENDENCE PERIOD
After independence, industrial growth started increasing rapidly and working class
became more aware about welfare and social security measures. Welfare measures for the up
liftmen of labour class were intensified. The ESI Act, 1948 marked the beginning of the era
of social insurance of labour in India and I.L.O. helped up to a very large extent.

After enacting the ESI Act, in the same year government made certain modifications
in already existing Factory Act and passed the ‘Factory Act, 1948’ to ensure safety, health,
proper working hours, conditions of work at workplace etc. The Minimum Wages Act was
also passed in 1948; this Act was to stop the exploitation of the workers by paying low
wages. Whenever government was considering the social security of workers one more

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important legislations was passed named the Employees’ Provident Fund and Miscellaneous
Provisions Acts, 1952. This Act was mainly for the retirement benefit and also provided
refundable and non- refundable advances to the workers during Job. In the series of Social
Security Acts, the Maternity Benefit Act was introduced in 1961, in the favour of working
women which provides them help during pregnancy.

The Payment of Gratuity Act, 1972 was also a social security legislation which is for
financial help after retirement. In addition to these Acts, some other social security and labour
welfare Acts were passed during the ‘Five Years Plans’ that were for the workers of
plantation, mines and various hazardous jobs.

CONSTITUTIONAL PROVISIONS FOR LABOUR CLASS

The Constitution of a country embodies its legal framework, establishes its high
institutions and lays down the rules which regulate functioning of the government and its
agencies. Constitution formulates structure of various organizations of state and declares the
limitations, powers, privileges and jurisdiction of them.

In a federal state it defines the relationship of centre and state and lays down a
demarcation between their powers. It is in fact a group of principles, rules, regulations and
laws which drives a country. Fundamental rights, fundamental duties, equality, justice are
provided to the citizens of the country through it. Sovereignty, socialism, secularism,
fundamental rights and duties, federalism, directive principles of state policy are the basic
principles of our Constitution. In our Constitution part IV deals with the ‘Directive Principles
of State Policy’ which bears 16 articles from 36 to 51.

Directive Principles group is a mirror through which the estimate of the expectations
of the people of India can be seen. These principles have been added in Constitution to create
a kind of democratic sense and ground for freedom and justice and to provide assured of
future welfare. Directive Principles dealt with welfare of people, removal of inequalities in
income, status, facilities and opportunities, proper distribution of material resources, social
security of workers, humane conditions at work, promote cottage industries and to increase
worker’s participation is management.

Most of the provisions for working class have been introduced in ‘Directive
Principles’ and such provisions provide protection and security against exploitation to the
labour class. Whenever state government passes law and prepares policy to direct any

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department or organization it has to keep in mind Directive Principles. These principles are a
kind of obligation on the shoulders of state. But these principles are not enforceable in court
of law and no citizen can compel its government to provide to them these principles. Through
Directive Principles government tries to ensure social and economic justice and equality to
all.

ARTICLE 23, 24

Both Article 23 and 24 are against exploitation. Article 23 prohibits traffic and beggar
in human beings and similar forms of forced labour. According to Article 24 no child below
the age of 14 years shall be worked in any factory or mine or any other hazardous occupation.
This article says that children below the age of 14 years should be given compulsory
education so that they can become useful and responsible citizens in future. Negligence of
this article is punishable.

Under clause (1) of Article 23 “traffic” includes the slavery and prostitution system
whereas “beggar” means to insist any one to work involuntarily by without payment.
However, under clause (2) of this article some important exception is made in favour of state
which may impose some compulsory service for public purposes i.e. national defence,
removal of illiteracy etc. According to law traffic and beggar are punishable offence.

ARTICLE 38

This article declares “The state shall strive to promote the welfare of the people by
securing and protecting as effectively as it may a social order in which justice, social-
economic and political, shall inform all the institutions of the national life.”

This article ensures the citizens that not only in the political field but also in social-
economic fields they would get protection which is symbol of a progressive society.

ARTICLE 39
Article 39 contains 6 clauses. It explains that the state shall in particular, direct its
policy towards securing-

(a) That the Citizens men and women equally have the right to adequate means of
livelihood;

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 (b) That the ownership and control of the material resources of the community are so
distributed as best as to sub serve that common good;

(c) That the operation of the economic system does not result in the concentration of
wealth and means of productions to common detriment;

(d) That there is equal pay for equal work for both men and women;

(e) That the health and strength of workers, men and women and the tender age of
children are not abused and the citizens are not forced by economic necessity to enter
avocation unsuited to their age;

(f) That the children and youth are protected against exploitation and against moral
and material abandonment (under Constitutional Act, 1976, 42nd Amendment w.e.f.
Jan 3, 1997). This article provides equality to the citizens of the country.

ARTICLE 39 A

This article mainly inserted to enjoin the state to provide ‘free legal aid’, to the poor
and to take other steps to ensure equal justice to all which is offered by Preamble of
Constitution.

ARTICLE 41
Article 41 directs that the state shall within the limits of its economic capacity and
development; make effective provisions for securing the right to work, to education and to
public assistance in cases of unemployment, old-age, sickness, disablement and in other cases
of undeserved wants.

This article is specially formulated to provide social security to working class at the
time contingencies fall. State is not yet fully successful to achieve this objective but, is trying
to ensure the social security through various legislations. Employment opportunities for all
are also in process to come true.

ARTICLE 42
This article directs state to make provisions for securing justice and humane
conditions of work and maternity relief. So it makes state liable for the proper working
conditions for labour at the work place. Government has formulated factories laws, labour
legislations to ensure the safety of workers. Maternity Act provides the relief to female
workers during pregnancy.

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ARTICLE 43
The state shall endeavour to secure, by suitable legislation or economic organization
or any other way, to all workers, agricultural, industrial or otherwise the following rights.

(a) Right to work;

(b) Right to a living wage; and

(c) Right to such condition of work as would ensure a decent standard of life and full
employment of leisure and social and cultural opportunities. So the objective of this
article is to provide employment to every willing hand so that he can enjoy a decent
living standard.

There is also another part of this article which directs the state to endeavour to
promote cottage industries on an individual or co-operative basis in rural areas. This part is
inserted for the development of rural areas.

ARTICLE 43 A
According to constitutional amendment 42 under Constitutional Act, 1976 (w.e.f.
1977) a new article 43A has been added in Constitution which is as-

The state shall take steps by suitable legislation or in any other way, to secure the
participation of workers in the management or undertakings, establishments or other
organizations engaged in any industry. This article is introduced to increase the workers’
participation in management of industries so that the benefit of their experiences can be get
for better work and to make them feel vital part of the organization.

CHAPTER I OF INDIAN CONSTITUTION: DISTRIBUTION OF LEGISLATIVE

POWERS

India is a federal country so both union and the state have the right to constitute
legislations and part XI of first chapter explains the legislative relations of centre and state.

The union is not a league of states, united in a loose relationship, nor is the states the
agencies of the union, driving powers form it. Both union and states are created by
Constitution both derive their respective authority form the Constitution. The one is not
subordinate to other in its own field; the authority of one is coordinate with that of other.

Three lists are embodied in schedule VII of Indian Constitution.

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1. UNION LIST

This list consists 98 items and is longest of three. The items mentioned in this list
have national importance and parliament has exclusive power of legislation with regards all
items of this list. All the important matters take place in the union list.

2. STATE LIST

The selection of the subjects for this list is made on the basis of local interest and it
envisages the possibility of diversity of treatment with respect to different items in different
states of union.

This lists bears 62 items and state legislatures has exclusive powers to make law on
the items lay in this list another to this list state has also power to constitute legislation
mentioned in concurrent list.

3. CONCURRENT LIST

The 52 items enumerated in this list and both parliament of India and state legislatures
have right to constitute legislation on the subjects vested in this list.

SUBJECTS OF THE LISTS

Part XXII, schedule VII explains the subjects and items vested in all three lists. The
subjects that are related to industries, labour welfare, social security, dispute and other
interest of labour in all the three lists are as follow.

(i) Union List

1. Item–13 Participation in international conference, association and other bodies and

implementing of decisions made thereat.

2. Item–28 Port quarantine, including hospitals, connected there with; seamen and
marine hospitals.

3. Item–47 Insurance.

4. Item–52 Industries, the control of which by union is declared by parliament by law to

be expedient in the public interest.

5. Item–61 Industrial disputes concerning union employees.

6. Item-65 Union agencies and institutions for-

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 (a) Professional, vocational or technical training, including of police officers;
or

(b) The promotion of special studies or research; or

(c) Scientific or technical assistance in the investigation or detection of crime.

7. Item–94 Enquires, surveys and statistics for the purpose of any of the matters in this
list.

(ii) State List

Item – 9 Relief of the disabled and unemployable.

Item – 24 Industries subject to the provision of list I.

(iii) Concurrent List

Item – 20 Economic and social planning.

Item – 21 Commercial and industrial monopolies, combines and trusts

Item – 22 Trade union, industrial and labour disputes.

Item – 23 Social security and social insurance, employment and unemployment.

Item – 24 Welfare of labour including conditions of work, provident funds, employers

liability, workmen’s compensation, invalidity and old age pension and maternity
benefits.

Item – 25 Vocational and technical training of labour.

Item - 36 Inquires and static for the purpose of any of the matters specified in list II or
list III.

The matters related to labour is jointly handled by centre and state governments.
Union and all the territories establish machinery at their own level to administer and
implement the various laws and legislations. At central level Labour & Employment Ministry
look into the related matters while the Labour Departments at state level play vital role in
labour affairs. Some autonomous bodies also work to handle all the respective matters.

LABOUR POLICY OF INDIA

Labour policy basically is a group of various programmes enactments and schemes

which is designed for the welfare, protection, social security and safety of workers. Without a

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proper labour policy it becomes difficult to handle all labour matters and ensure workers a
healthy work environment.

The labour policy broadly covers the treatment of labour under Constitutional,
Legislative, Administrative Acts, rules, practices, precepts laid down in the five year plans
and so on.

The main objectives of the labour policy are as follow:

(i) Protection and promotion of interest of the workers.

(ii) Rationalization of existing labour laws according to the needs of the future and
labour market and enactment of umbrella legislation for the unorganized workers.

(iii) Proper implementation of Rastriya Swasthya Bima Yojna (RSBY) which is a

health insurance scheme for below poverty line (BPL) families.

(iv) To address all the emerging requirements in the area of research and training
related to working class.

Vision

1. Exercise the recommendations of Second National Labour Commission.

2. To bring the unorganized workers under the various legislations to protect them and
proper implementation of ‘Unorganized Social Security Act, 2008’.

3. Elimination of child labour form hazardous jobs and stop exploitation of them.

4. To ensure nationally acceptable and internationally competitive standards of health,

safety and welfare of workers.

5. Spread the reach of social security to organized sector workers as well as international
workers through distinct enactments.

6. Monitoring the implementation of Minimum Wages Act, 1948 in the central and state
sphere to provide workers living and fair wages.

7. To empower the social factors with capacities to meet the challenges of change.

8. Disseminate the information on labour matters.

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Ministry of Labour and Employment is working hard to achieve the above mentioned
objectives through various enactments and their proper enforcement.

RECOMMENDATIONS OF SECOND NATIONAL LABOUR

COMMISSION ON SOCIAL SECURITY
The National Labour Commission is appointed time to time to give its
recommendations about labour. The first report of this Commission was submitted in 1967
and the second National Commission was appointed by the Government of India on October
15, 1999 under the Chairmanship of Ravindra Verma former Minister of Labour,
Government of India. After 35 years of first Commission in June 2002, the second report has
been presented.

The main recommendations of Labour Commission made about social security of working
class are as follow:

1. It was recommended that the state should provide elementary and basic security to
workers however, higher level left to individuals who can acquire through
contributory participation. It will minimize the role of state and maximize the role of
individuals.

2. To take in view the demographic diversities of India no single approach is adequate

but a multi-dimensional approach is needed for social security.

3. The Workmen’s Compensations Act should be converted in a social insurance scheme

despite of employers’ liability.

4. A separate legislation should be constituted to the unorganized workers for maternity

benefit.

5. The Payment of Gratuity Act may be integrated with the Employees’ Provident Fund
Act and converted into a social insurance scheme.

6. The Employees’ Provident Fund Organization (EPFO) should have its own
mechanism for investment of its balances.

7. A Social Security Fund of India and similar of state may be set up.

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 8. There should be three kind of social security schemes (i) social insurance type;
contributory, (ii) subsidized insurance type; partly contributory and (iii) social
assistance type; wholly the responsibility of state.

9. The unification of administrative responsibility is necessary.

10. Commission strongly recommended the constitution of a high powered ‘National

Social Security Authority’ under the chairmanship of Prime Minister of India. It will
make the national policy on social security and will co-ordinate the central and state
level programmes.

11. Commission suggested to establish a distinguish department of social security within

the Ministry of Labour to co-ordinate, monitor and review specific programmes of
social security running by various ministries and states.

12. An appropriate national scheme for relief and rehabilitation of economically and
socially distressed people should establish.

The second National Labour Commission made important recommendations about social
security of working class and social security can be made more effective and strong through
the implementation and practicing of such recommendations and suggestions.

IMPACT OF NEW INDUSTRIAL POLICY ON LABOUR WELFARE

AND SOCIAL SECURITY
Indian economy was in a great crisis in 1991 when new government was constituted and like
European countries India adopted the policy of liberalisation and globalisation to come out of
bankruptcy and crisis. The objective of new economic policy was to bring about rapid and
sustainable improvement in the quality of the life of the people in India. At that time Indian
economy was in worse condition, so for the sake of frequent growth in incomes and
employment new economic policy was adopted.

Through this policy Indian government adopted a structure of privatized, liberalized and
globalized economy. Bring into service of this policy, use of machines was increased and the
danger of safety was also enlarged and the unskilled worker were replaced by the skilled and
a big fraction of labour force and unskilled workers become unemployed and source less.
Private sector industries were profit oriented and they don’t care for labour laws and
exploited the poor workers and tried to avoid the welfare and social security measures.
Within the area of private industries union activities were also banned.

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 So in most of cases workers could not claim any kind of compensation at the time of
accident whereas provident fund, gratuity and pension schemes were also less applicable after
retirement. Therefore, the new economic policy affected workers interest to great extent.

GLOBAL INSTITUTIONS FOR SOCIAL SECURITY

In addition to the national, state and local organizations some international bodies are also
working to furnish the social security throughout the world.

INTERNATIONAL LABOUR ORGANIZATION (ILO)

I.L.O. was founded in 1919 for the promotion of social justice and improving the living
conditions of workers all over the world. India is one of the founder members of it and
presently it has 175 members. The tripartite character of ILO gives it unique feature and
every member country of it, has also adopted the same feature. ILO assures the social Justice
through (i) international standards; (ii) providing information; (iii) technical assistance and
guidance; and (iv) cooperation with other organizations and it provides the impetus help
needed by most of the countries.

ILO is a comprehensive social security agency in the achievement of its announced

objectives, which include “the protection of the workers against sickness, diseases and injury
arising out of his employment, the protection of children, young persons and women,
provision for old age and injury.” These objectives find a place among the specific measures
proposed in the Preamble of the Constitution of the ILO.

ILO plays vital role to spread social security measures throughout the world. It deliberates
on the labour issues according to passage of the time and organizes various conventions and
creates several recommendations on social security. In 1942, ILO published a report on
‘Approaches to Social Security’ and further in 1944, ILO again published a report entitled
‘Social Security: Principles and Problems Arising out of War’ in which scheme of social
security had been suggested for the post-war reconstruction. Thus this organization is direly
working in field of social security to increase it and to make it easily possible for every
worker.

Further in 1962, ILO convention of social security (minimum standard) had divided
social security into following nine components

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(i) Medical Care
It should cover pregnancy, confinement and its consequence and any disease may led
to morbid condition.

(ii) Sickness Benefit

This benefit should cover incapacity to work due to unwholesome condition resulting
in a loss of earning.

(iii) Unemployment Benefit

Unemployment benefit will cover the loss of earning at that time period whenever a
person is capable to do work but remain unemployed because of lack of suitable work.

(iv)Old Age Benefit

This benefit provides for the payment or certain amount of money depending upon one’s
contribution before the retirement age.

(v) Employment Injury Benefit

Under this benefit every contingency arising out of employment and resulting in any
incapacity and death are included.

(vi)Family Benefit
This benefit includes the responsibility of the children i.e. food, housing, clothing till the
contingency ends.

(vii) Maternity Benefit

This benefit covers pregnancy, confinement and their consequences resulting in suspension of
earnings.

(viii) Invalidism Benefit

The invalidism benefit, in the form of periodical payment should cover the needs of
the workers who suffer from any disability arising out of sickness and who are unable to
engage in any gainful activity.

(ix) Survivor’s Benefit

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 It covers the periodical payments made to a family follow the death of its breadwinner
and should continue till the contingency ends.

These facilities suggested by ILO provide a strong and comprehensive social security
system to workers and their families.

Decent Work
The concept of ‘Decent Work’ is being propagated by the ILO. It encompasses four
strategic objectives.

I. Promotion of Rights at Work (a fresh instrument to achieve goals)

II. Employment (to reduce poverty and inequalities)

III. Social Protection (expansion of social security schemes)

IV. Social Dialogue (to examining way of strengthening the institutional capacity of
ILO)

ILO SOCIAL SECURITY (MINIMUM STANDARDS) CONVENTION

NO.102 OF1952 DEFINES SOCIAL SECURITY TO MEAN:
“The result achieved by a comprehensive and successful and series of measures for
protecting the public (or a large sector of it) from the economic distress, that, in the absence
of such measures, would be caused by the stoppage of earning in sickness, unemployment or
old age and after death; for making available to that same public medical care as needed; and
for subsidizing families bringing up young children”.

As per the contention of ILO social security is a multi-winged and multi-faceted

concept. It also observed that social security is the basic need of all people regardless of
employment in which they work and live. It should be begun with birth and should continue
till death.

ILO conventions and recommendations relevant to social security extension policies

include:

 The Social Security (Minimum Standards) Convention, 1952 (No. 102)

 The Equality of Treatment (Social Security) Convention, 1962 (No. 118)
 The Employment Injury Benefits Convention, 1964 (Schedule I amended in1980)
(No.121)

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  Invalidity, Old-Age and Survivors’ Benefits Convention, 1967 (No. 128)
 The Medical Care and Sickness Benefits Convention, 1969 (No.130)
 The Maintenance of Social Security Rights Convention, 1982 (No. 157)
 The Employment Promotion and Protection against Unemployment Convention, 1988
(No.168)
 The Job Creation in Small and Medium- Sized Enterprises Recommendation,
1998(No. 189)
 Maternity Protection Convention (Revised) 2000 (No. 183)

In 2001, the International Labour Conference adopted the Resolution and Conclusions
concerning Social Security.

ADMINISTRATION OF SOCIAL SECURITY ACTS

Social security is such a type of help which ensures a person that he will surely get
assistance at the time of his illness, injury, old age, invalidity and even after his death. But
this social security only covers the workers who are working in organized sector but a large
proportion of workers of unorganized sector yet to be covered. However, a few schemes are
working for unorganized workers but they are not enough. The social security schemes are
run by joint efforts of employees, employers and government. There are a lot of social
security laws which are working in industries. The various Social Security Acts and their
administrative machinery are as follow:

Employees’ Provident Funds and Miscellaneous Provisions Act, 1952

The Employees’ Provident Fund Act is enacted for social security of workers. This
Act provides retirement benefits to the workers. It provides monetary help to the workers and
their family at the time of crisis. Now, the following three schemes are working under the Act

i. Employees’ Provident Funds Scheme, 1952;

ii. Employees’ Deposit Linked Insurance Scheme, 1976;

iii. Employees’ Pension Scheme, 1995.

The Employees’ Provident Fund Act, 1952 is administered by the Employees’ Provident
Fund Organization (EPFO). This organization looks after all the working, investment,
implementation of the Act in various establishments.

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Employees’ State Insurance Act, 1948
This Act provides for health care and cash benefit payments in the case of sickness,
maternity and employment injury. The ESI scheme is administered by a statutory body,
called the Employees’ State Insurance Corporation (ESIC). All employers, employees,
central and state governments, and medical professional and parliament representatives are
the members of the ESIC. The Union Minister of Labour and Employment is the chairman of
the body. There is a Standing Committee of the Corporation. The Director General is a Chief
Executive Officer of the Corporation. Its headquarters is situated in New Delhi and it has a
large number of field offices. A lot of employees and officers do the work at different level in
the Corporation to run it effectively.

Payment of Gratuity Act, 1972

The Payment of Gratuity Act provides the benefits to the employees after their
retirement. This Act is applicable to all workers engaged in factories, mines, plantations,
ports, railways, educational institutions and other establishments. This Act is enforced by the
central and state governments jointly. Both has right to appoint a controlling authority for the
administration of the Act. The government is enable to appoint the various area inspectors to
find out, that the provisions of the Act are being completed or not.

Maternity Benefit Act, 1961

This Act is specially made for the working women. It provides them benefits and
medical care at the time of their pregnancy. According to this Act, no employer can force any
woman worker for work when she is pregnant. The Maternity Benefit Act provides them
leave with pay. It enables them to get 12 weeks leave, 6 weeks before the birth of child and 6
weeks after the birth of child.

Workmen’s Compensation Act, 1923

This Act is mainly to provide the compensation to workers for industrial injury,
accidents and any mis happening at the time of work. All the workers, who are working in
any hazardous job, are able to get the benefits of the Act. The state governments have power
to extend the scope of the Act to any class of workers’. The state government administer the
provisions of this Act through the Commissioners appointed for specified areas. The state
government also make rules for ensuring that the provisions for the Act are being
implemented or not.

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The Factories Act, 1948
The Factories Act, 1948 is designed to protect the workers in the factories. The Act
has undergone various amendments from time to time. The main object of the Act is to
ensure adequate safety measures and to promote the health and safety of the workers and
further, deal with benefits and welfare facilities and health, safety and hygiene inside the
factory premises.

Provisions regarding health of the workers relate mainly to cleanliness, disposal of

wastes and affluent, ventilations, control of temperature. Elimination of dust and fumes,
artificial humidification, overcrowding, lighting, drinking water facilities, latrines, urinals and
spittoons. Besides, every factory has to make effective arrangements to provide and maintain
a sufficient supply of wholesome drinking water for all workers employed therein; and where
250 or more workers are working, employers are required to provide cool drinking water in
hot weather.

Provision regarding safety of workers relate to the fencing of machinery, easing of

new machinery, testing and examination of appliances and plants such as hoists, lifts, cranks,
chains and pressure plants, supply of safety appliances to workers, precautions against
dangerous fumes and in cased of fire etc. The Act also lays down the conditions under which
young persons and women may be employed.

Provision regarding welfare facilities covers such items as washing facilities for
storing and drying clothes, facilities for sitting, first aid appliances, canteens in case of
factories employing over 250 workers, suitable shelters or rest rooms, lunch rooms. The Act
also grants power to state governments to make rules requiring the representative of workers
in any factory to be associated with management in regard to welfare factory to be associated
with management in regard to welfare arrangement of the workers.

The implementations of the Act are under the jurisdictions of the State Governments.
It is enforced through the Factory Inspectorates. Any worker can complain to the Inspector
about conditions inside the factory, and the source from which the complaint has come is not
supposed to be disclosed unfortunately, the implementations mechanism of the Act is
unsatisfactory. Each factory inspector has more than a thousand factories under him. These
infrastructural facilities available to him are totally inadequate.

This Act, in its updated form, has a very broad definition of `worker`. However
contract and ad hoc workers do not get the benefits given to permanent workers. It imposes

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restrictions on employment of women during the night, especially the period between 7.00
p.m. to 6.00 a.m.

There are also restrictions of daily working hours for men and women in factories.
Sections 23 and 27 of the Factories Act prohibit women from handling dangerous devices.
However, all these provisions are not applied in practice for a section of the workers.
Moreover, the Act is applicable only to manufacturing units, organised as factories. The
provisions of this Act do not apply to the vast masses of workers in the unorganised sector
employed in smaller manufacturing units and other sectors.

In conclusion it can be seen that

(i) Social security benefit has expanded rapidly after independence.

(ii) Social Security in India has been supported by laws which have enacted from time
to time during last four decades.
(iii) In India Employee State Insurance and Employee provident fund Schemes of the
central govt. where a state does not need to contribute.
(i) (iv)Unfortunately in India only workers engaged in Industry and organized sectors
are covered by these schemes. Unorganized sector, agricultural sectors have been
ignored they have to yet received benefits of these social measures.

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 UNIT – II

EMPLOYEES COMPENSATION ACT, 1923

INTRODUCTION:

This is a very old enactment for providing social security to workmen. Under this Act,
a workman who dies or suffers disablement (partial or total) due to accident is entitled to get
compensation from employer. Act does not apply where workman covered under Employees
State Insurance Act, since a workman is entitled to get compensation from ESIC, a workman
covered under Employees State Insurance Act is not entitled to get compensation under
Workmen’s Compensation Act, as per section 53 of ESIC. However, Act is applicable to
factories, mines, plantations, transport establishments, construction work etc. who are not
covered under Employees State Insurance Act.

It enables employees to get compensation irrespective of his negligence. It also lays

down the various amounts payable in case of an accident depending upon the type and extent
of injury.

The main purpose of the Act is to provide special machinery to deal with the cases of
compensation in case of accidents and to make arrangement for some prompt compensation
the injured employees who cannot afford to go to the Court of Law.

The latest amendment to the Act was made in 1984. The Amendment Act, 1976 raised
the wage limit for coverage under the Act from Rs.500 to Rs.1.000 per month. The
Amendment Act of 1984 has altogether abolished this limit.

OBJECT AND SCOPE OF THIS ACT

 The Employees’ Compensation Act is social security legislation.

 It imposes statutory liability upon an employer to discharge his moral
obligation towards his employees when they suffer from physical disabilities
and diseases during the course of employment in hazardous working
conditions.
 To help the dependents of the employee rendered destitute by the ‘accidents’
and from the hardship arising out from such accidents.

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  The Act provides for cheaper and quicker mode of disposal of disputes
relating to compensation through special proceedings than possible under the
civil law.
 The Act extends to the whole of India.

DEFINITIONS UNDER WORKMEN'S COMPENSATION ACT

DEFINITIONS

DEPENDANT 2(1) (D)

Means any of the following relatives of a deceased employee:

 a widow, a minor legitimate or adopted son, an unmarried legitimate or adopted

daughter, or a widowed mother, and
 if wholly dependent on the earnings of the employee at the time of his death, a son or
a daughter who has attained the age of 18 years and who is infirm; and
 if wholly or in part dependent on the earnings of the employee at the time of his
death:
 a widower,
 a parent other than a widowed mother,
 a minor illegitimate son, an unmarried illegitimate daughter or a daughter
legitimate or illegitimate or adopted if married and a minor, or if widowed and
a minor,
 a minor brother or an unmarried sister, or a widowed sister if a minor,
 a widowed daughter-in-law,
 a minor child of a pre-deceased son/adopted son
 a minor child of a pre-deceased daughter/ adopted daughter where no parent of
the child is alive or
 a paternal grandparent, if no parent of the employee is alive.

EMPLOYEE SECTION 2(DD)

Means a person, who is –

 a railway servant as defined in clause (34) of section 2 of the Railways Act, 1989, not
permanently employed in any administrative district or sub-divisional office of a
railway and not employed in any such capacity as is specified in Schedule II; or

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  Employees’ Compensation Act, 1923
 a master, seaman or other members of the crew of a ship,
 a captain or other member of the crew of an aircraft,
 A person recruited as driver, helper, and mechanic, cleaner or in any other capacity in
connection with a motor vehicle.
 a person recruited for work abroad by a company, and who is employed outside India
in any such capacity as is specified in Schedule II and the ship, aircraft or motor
vehicle, or company, as the case may be, is registered in India; or
 employed in any such capacity as is specified in Schedule II, whether the contract of
employment was made before or after the passing of this Act and whether such
contract is expressed or implied, oral or in writing; but does not include any person
working in the capacity of a member of the Armed Forces of the Union; and any
reference to any employee who has been” injured shall, where the employee is dead,
include a reference to his dependants or any of them;

EMPLOYER [SECTION 2(1) (E)]

 anybody of persons incorporated or not;
 any managing agent of the employer;
 Legal representative of a deceased employer. Thus, one who inherits the estate of the
deceased is made liable for the payment of compensation under the Act. However, he
is liable only up to the value of the estate inherited by him;
 any person to whom the services of a employee are temporarily lent or let on hire by a
person with whom the employee has entered into a contract of service or
apprenticeship.

Case: Baijnath Singh v. O.T. Railway

A contractor falls within the above definition of the employer. Similarly, a General
Manager of a Railway is an employer.

SEAMAN - SECTION 2(1) (K) Means:

Any person forming part of the crew of any ship but does not include the master of
the ship.

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WAGES - SECTION 2(1)(M)
Include any privilege or benefit which is capable of being estimated in money, other
than

 a travelling allowance or
 the value of any travelling concession or
 a contribution paid by the employer to an employee towards any pension or provident
fund or
 a sum paid to employee to cover any special expenses entailed on him by the nature of
his employment.

Case:-Godawari Sugar Mills Ltd. v. Shakuntala;

Case:-Chitru Tanti v. TISCO; and

Case:-Badri Prasad v. Trijugi Sitaram

Wages include dearness allowance, free accommodation, overtime pay, etc.

Case: - KSRTC Bangalore v. Smt. Sundari

The driver of a bus died in an accident. On a claim for compensation made by widow
it was held that line allowance and night out allowance came under the privilege or benefit
which is capable of being estimated in money and can be taken into consideration in
computing compensation as part of wages. The claim of bonus being a right of the workman
is a benefit forming part of wages and the same can be included in wages.

DISABLEMENT
 The Act does not define the word Disablement.
 It only defines the partial and total disablement.
 After reading the partial or total disablement as defined under the
 Act one may presume that disablement is loss of earning capacity by an injury which
depending upon the nature of injury and percentage of loss of earning capacity will be
partial or total.
 The Act has classified disablement into two categories-
 Partial disablement, and
 Total disablement.

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PARTIAL DISABLEMENT [SECTION 2(1) (G)]
Partial disablement can be classified as temporary partial disablement and permanent
partial disablement.

 Where the disablement is of a temporary nature: Such disablement as reduces the

earning capacity of an employee in the employment in which he was engaged at the
time of the accident resulting in the disablement; and
 Where the disablement is of a permanent nature: Such disablement as reduces for all
time his earning capacity in every employment which he was capable of undertaking
at the time. But every injury specified in Part II of Schedule I shall be deemed to
result in permanent partial disablement.
 Schedule I contains list of injuries deemed to result in Permanent Total/Partial
disablement.
 In case of temporary partial disablement, the disablement results in reduction of
earning capacity in respect of only that employment in which he was engaged at the
time of accident. This means the employee’s earning capacity in relation to other
employment is not affected. But in case of permanent partial disablement, the
disablement results in reduction in his earning capacity in not only the employment in
which he was engaged at the time of accident but in all other employments.
 Whether the disablement is temporary or permanent and whether it results in
reduction of earning capacity, the answer will depend upon the fact of each case,
except when the injury is clearly included in Part II of Schedule I.

Case:-Sukhai v. Hukam Chand Jute Mills Ltd.,

 It was observed that if a workman suffers as a result of an injury from a

physical defect which does not in fact reduce his capacity to work but at the
same time makes his labour unsalable in any market reasonably accessible to
him, there will be either total incapacity for work when no work is available to
he at all or there will be a partial incapacity when such defect makes his labour
saleable for less than it would otherwise fetch.
 The capacity of a workman may remain quite unimpaired, but at the same time
his eligibility as an employee may be diminished or lost if such a result ensure
by the reason of the results of an accident, although the accident has not really
reduced the capacity of the workman to work.

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  He can establish a right to compensation, provided he proves by satisfactory
evidence that he has applied to a reasonable number of likely employers for
employment, but had been turned away on account of the results of the
accident visible on his person.

Case: - General Manager, G.I.P. Rly. v. Shankar

If after the accident a worker has become disabled, and cannot do a particular job but
the employer offers him another kind of job, the worker is entitled to compensation for partial
disablement.

Deemed to be permanent partial disablement:

Part II of Schedule I contain the list of injuries which shall be deemed to result in
permanent partial disablement.

Complete and permanent loss of the use of any limb or member referred to in this
Schedule shall be deemed to be the equivalent to the loss of that limb or member.

Case: - Lipton (India) Ltd. v. Gokul Chandran Mandal

On the question whether eye is a member or limb as used in the note to Schedule I it
was held that considering the meaning as stated in the Oxford Dictionary as also in the
Medical Dictionary, it could be said that the words limb or member include any organ of a
person and in any case it includes the eye.

TOTAL DISABLEMENT [SECTION 2(1) (L)]

 Total disablement can also be classified as temporary total disablement and
permanent total disablement.
 Total disablement means, such disablement whether of a temporary or permanent
nature, which incapacitates an employee for all work which he was capable of
performing at the time of accident resulting in such disablement.
 Permanent total disablement shall be deemed to result from every injury specified in
Part I of Schedule I or similarly total disablement shall result from any combination of
injuries specified in Part II of Schedule I, where the aggregate percentage of loss of
earning capacity, as specified in the Part II against these injuries amount to one
hundred per cent or more.

Case: - Ball v. William Hunt & Sons Ltd

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  The expression incapacitates a workman for all work does not mean capacity to work
or physical incapacity. If due to any physical defect, a workman is unable to get any
work which a workman of his class ordinarily performs, and has thus lost the power to
earn he is entitled to compensation for total disablement.
 It is immaterial that the workman is physically fit to perform some work. Thus, where
a workman, though physically capable of doing the work cannot get employment in
spite of his best efforts, he becomes incapacitated for all work and hence entitled to
compensation for total disablement.

Case:-Mangru Palji v. Robinsons,

Loss of physical capacity is co-extensive with loss of earning capacity but loss of
earning is not as co-extensive with loss of physical capacity as he may be getting the same
wages even though there may be loss of physical capacity. In a case permanent partial
disability caused to a workman in accident while working on ship, e.g. getting pain in his left
hand and experiencing difficulty in lifting weights, it was held that workman can be said to
have lost his earning capacity even though getting same amount of wages as before. Where it
is not a scheduled injury the loss of earning capacity must be proved by evidence.

Case:-Katras Jherriah Coal Co. Ltd. v. Kamakhya Paul

Where the worker lost his vision of one eye permanently in an accident in course of
his employment in colliery, the compensation should be assessed in accordance with item 26
Part II in Schedule I.

Case:-Pratap Narain Singh Deo v. Sriniwas Sabata

In an injury the workman, had amputated his left arm from elbow, who was a
carpenter. It was held by the Supreme Court that it is a total disablement as the carpenter
cannot carry his work with one hand and not a partial permanent disablement.

Case: - Divisional Manager KSRTC v. Bhimaiah

Where the workman, a driver of bus belonging to the employer was involved in an
accident which resulted in an impairment of the free movement of his left hand disabling him
from driving vehicles, it was held that this is not one of the injuries mentioned in the 1st
Schedule which are accepted to result in permanent total disablement. In the present case the
workman was also capable of performing duties and executing works other than driving

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vehicles. Nature of injury to be determined not on the basis of the work he was doing at the
time of accident.

EMPLOYER’S LIABILITY FOR COMPENSATION [SECTION 3]

(A) IN CASES OF OCCUPATIONAL DISEASE

 Where an employee employed in any employment specified in Part A of Schedule III
contracts any disease specified therein, as an occupational disease, peculiar to that
employment, the contracting of disease shall be deemed to be an injury by accident
arising out of and in the course of employment.
 Where the employee employed in any employment specified in Part B of Schedule III,
for a continuous period of not less than six months under the same employer, and
whilst in the service contracts any disease specified in the Part B of Schedule III, the
contracting of disease shall be deemed to be an injury by accident arising out of and in
the course of employment. The employer shall be liable even when the disease was
contracted after the employee ceased to be in the service of the employer, if such
disease arose out of the employment.
 If an employee whilst in service of one or more employers (not necessarily the same
employer) in any employment specified in Part C of Schedule III for such continuous
period as the Central Government may specify, contracts any disease, even after he
ceased to be in the service of any employer and disease arose out of such
employment, specified in the Schedule, the contracting of disease shall be deemed to
be an injury by accident arising out of and in the course of employment.
 [Section 3(2A)] - However, where the employment was under more than one
employer, all such employers shall be liable for the payment of the compensation in
such proportion as the
 Commissioner may in circumstances deem just.
 If it is proved that the employee whilst in the service of one or more employers in any
employment specified in Part C of Schedule III has contracted a disease specified
therein as an occupational disease peculiar to that employment during a continuous
period which is less than the period specified under this sub-section for that
employment, and

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  If it is proved that the disease has arisen out of and in the course of the employment;
the contracting of such disease shall be deemed to be an injury by accident within the
meaning of this section.
 The Central Government or the State Government after giving, by notification in the
Official Gazette, not less than three months notice of its intention so to do, may, by a
like notification, add any description of employment to the employments specified in
Schedule III, and shall specify in the case of employments so added the diseases
which shall be deemed for the purposes of this section to be occupational diseases
peculiar to those employments respectively, and thereupon the provisions of Sub-
section (2) shall apply in the case of a notification by the Central Government, within
the territories to which this Act extends or, in case of a notification by the State
Government, within the State as if such diseases had been declared by this Act to be
occupational diseases peculiar to those employments.
 Except as mentioned above no compensation shall be payable to an employee in
respect of any disease unless the disease is directly attributable to a specific injury by
accident arising out of and in the course of his employment.

(B) IN CASE OF PERSONAL INJURY

The employer becomes liable if the injury is caused to an employee by accident
arising out of and in the course of his employment.

(i) There must be personal injury caused to an employee.

Normally, Injury implies physical or bodily injury caused by an accident. However,
such personal injury will also include nervous shock or break-down or mental strain.

Case:-Indian News Chronicle v. Mrs. Lazarus

An electrician who had to go frequently to a heating room from a cooling plant,

contracted pneumonia which resulted in his death It was held that the injury caused by an
accident is not confined to physical injury and the injury in the instant case was due to his
working and going from a heating room to a cooling plant as it was his indispensable duty.

(ii) The personal injury must be caused by an “accident”.

The term “accident” has not been defined in the Act but its meaning has been
sufficiently explained in number of decided cases.

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 The expression accident must be construed to its popular sense. It has been defined as
a mishap or an untoward event which is not expected or designed. What the Act intends to
cover is what might be expressed as an accidental injury.

Case: - Smt. Sunderbai v. The General Manager, Ordinance Factory Khamaria, Jabalpur

 The Madhya Pradesh High Court has clarified the difference between accident and
injury. Accident means an untoward mishap which is not expected or designed by
workman; ‘Injury’ means physiological injury.
 Accident and injury are distinct in cases where accident is an event happening
externally to a man, e.g., where a workman falls from the ladder and suffers injuries.
 But accident may be an event happening internally to a man and in such cases
accident and injury coincide. Such cases are illustrated by failure of heart and the like,
while the workman is doing his normal work.
 Physiological injury suffered by a workman mainly due to the progress of disease
unconnected with employment may amount to an injury arising out of and in the
course of employment if the work that the workman was doing at the time of the
occurrence of the injury contributed to its occurrence.
 The connection between employments must be furnished by ordinary strain of
ordinary work if the strain did in fact contribute to accelerate or hasten the injury. The
burden of proof is on applicant to prove the connection of employment and injury.

(iii) Arising out of employment and in the course of employment

To make the employer liable, it is necessary that the injury is caused by an accident
which must be raised out of and in the course of employment.

Arising out of employment

The expression “arising out of employment” suggests some causal connection

between the employment and the accidental injury. The cause contemplated is the proximate
cause and not any remote cause.

Case:-Laxmibai Atma Ram v. Bombay Port Trust

Where a workman suffers from heart disease and dies on account of strain of work by
keeping continuously standing or working, held that the accident arose out of employment.

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 Generally if an employee is suffering from a particular disease and as a result of wear
and tear of his employment he dies of that disease, employer is not liable. But if the
employment is contributory cause or has accelerated the death that the death was due to
disease coupled with the employment, then the employer would be liable as arising out of the
employment.

Case: - Mackenzie v. I.M. Issak

 It was observed that the words arising out of employment means that injury has
resulted from risk incidental to the duties of the service which unless engaged in the
duty owing to the master, it is reasonable to believe that the workman would not
otherwise have suffered.
 There must be a casual relationship between the accident and the employment.
 If the accident had occurred on account of a risk which is an incident of the
employment, the claim for compensation must succeed unless of course the workman
has exposed himself to do an added peril by his own imprudence.

Case:-Mackinnon Mackenzie and Co. (P.) Ltd. v. Ibrahim Mohammed Issak

Case:-Lancashire and Yorkshire Railway Co. v. Highley

The Supreme Court observed that the test is:

 Part of the injured person’s employment to hazard, to suffer or to do that which

caused his injury?
 If yes, the accident arose out of his employment,
 If not it did not.

Arising in the course of employment

 Suggests the period of employment and the place of work.
 In other words, the workman, at the time of accident must have been employed in the
performance of his duties and the accident took place at or about the place where he
was performing his duties.
 The expression “employment” is wider than the actual work or duty which the
employee has to do.
 It is enough if at the time of the accident the employee was in actual employment
although he may not be actually turning out the work.

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  Even when the employee is resting, or having food, or taking his tea or coffee,
proceeding from the place of employment to his residence, and accident occurs, the
accident is regarded as arising out of and in the course of employment.

Case: - Union of India v. Mrs. Noorjahan

A man may be in course of his employment not only when he is actually engaged in
doing something in the discharge of his duty but also when he is engaged in acts belonging to
and arising out of it.

For the expression “accident arising out of and in the course of

employment”
 The basic and indispensable ingredient is unexpectedness.
 The second ingredient is that the injury must be traceable within reasonable limits, to
a definite time, place or occasion or cause.

(iv)Theory of notional extension of employment

To make the employer liable it is necessary that the injury caused by an accident must
have arisen in the course of employment.

It means that the accident must take place at a time and place when he was doing his
master’s job.

Case: - Weaver v. Tradegar Iron and Coal Co. Ltd.

It is well settled that the concept of “duty” is not limited to the period of time the
workman actually commenced his work and the time he downs his tools. It extends further in
point of time as well as place. But there must be nexus between the time and place of the
accident and the employment. If the presence of the workman concerned at the particular
point was so related to the employment as to lead to the conclusion that he was acting within
the scope of employment that would be sufficient to deem the accident as having occurred in
the course of employment.

It is known as doctrine of notional extension of employment; whether employment

extends to the extent of accident depends upon each individual case.

Case: - Naima Bibi v. Lodhne Colliery

A workman while returning home after duty was murdered within the premises of the
employer. It was held that there was casual and proximate connection between the accident

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and the employment. Since the workman was on spot only for his employment and his wife is
entitled for compensation.

Case: - TNCS Corporation v. Poonamalai

If an employee in the course of his employment has to be in a particular place by

reason where he has to face a peril which causes the accident then the casual connection is
established between the accident and the employment.

(v) When employer is not liable

In the following cases, the employer shall not be liable:

 When the injury does not result in disablement for a period exceeding 3 days
 When the injury not resulting in death or permanent total disability is due to any of
the following reasons:
 the employee was at the time of accident, under the influence of drink or
drugs, or
 the employee wilfully disobeyed an order expressly given or a rule expressly
framed for the purpose of securing safety of workers, or
 The employee wilfully disregards or removes any safety guards or safety
devices which he knew to have been provided for the safety of the employee.

Case:-R.B. Moondra & Co. v. Mst. Bhanwari

In this case it was held that where an employee dies due to an accident arising out of
and in the course of employment, it cannot be pleaded that death was due to any of the
reasons stated above.

Suit for damages in a Court barred [Section 3(5)]

An employee is not entitled to any compensation under the Workmen’s Compensation

Act, 1923, if he has instituted, in a Civil Court, a suit for damages against the employer or
any other person.

Similarly, an employee is prohibited from instituting a suit for damages in any court of law,

 if he has instituted a claim to compensation in respect of the injury before a

Commissioner; or
 If the employee and the employer have entered into an agreement for the payment of
compensation in accordance with the provisions of this Act.

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EMPLOYER’S LIABILITY WHEN CONTRACTOR IS ENGAGED
[SECTION 12]

Sometimes, employer may engage a contractor instead of employing his own

employee for the purpose of doing any work in respect of his trade or business. Such a
contractor then executes the work with the help of the employee engaged by him. If any
injury is caused by an accident to any of these employees, the employer cannot be held liable
because they are not employed by him and hence are not his employees. But now Section
12(1) makes the employer liable for compensation to such employees hired by the contractor
under following circumstances:

 The contractor is engaged to do a work which is part of the trade or business of the
employer (called principal).
 The employees were engaged in the course of or for the purpose of his trade or
business.
 The accident occurred in or about the premises on which the principal employer has
undertaken or undertakes to execute the work concerned.
 The amount of compensation shall be calculated with reference to the wages of the
employee under the employer by whom he is immediately employed.

Section 12(2) - Where the principal is liable to pay compensation under this section, he shall
be entitled to be indemnified by the contractor or any other person from whom the employee
could have recovered compensation and where a contractor who is himself a principal is
liable to pay compensation or to indemnify a principal under this section, he shall be entitled
to be indemnified by any person standing to him in relation of a contractor from whom the
employee could have recovered compensation and all questions as the right to and the amount
of any such indemnity shall, in default of agreement, be settled by the Commissioner.

Section 12(3) - The above provision, however, does not prevent an employee from
recovering compensation from the contractor instead of the employer, i.e., the Principal.

Section 12(4) - This section shall not apply in any case where the accident occurred
elsewhere than on, in or about the premises on which the principal has undertaken, or usually
undertakes, as the case may be to execute the work or which are otherwise under his control
or management.

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Illustrations on Section 12:-
A Municipal Board entrusted the electrification work of the town to State employees.
An employee received injuries while performing his work. Held, it is the State and not the
Board, liable to pay compensation because execution of electrical project is not the ordinary
business of the Municipal Board.

A contractor was entrusted with the repairs of a defective chimney. An employee

engaged by him was injured while carrying out repairs. Held, mill was not liable for
compensation as the repairing of chimney is not the part of companies’ trade or business,
whether ordinarily or extraordinarily.

A cart man was engaged by a Rice Mill to carry rice bags from mill to railway station.
The cart man met with an accident on a public road while returning back from railway station
and this resulted in his death.

There was no evidence to show that employee was engaged through a contractor. In a
suit for compensation against the mill owner, it was observed that Section 12 is not applicable
where the accident arises out of and in the course of employment. Even assuming that the
deceased was in the employment of contractor engaged by the employer, the liability of the
owner was clear from Section 12(1) and it had not been excluded by reason of Section 12(4).

COMPENSATION

MEANING OF COMPENSATION [SECTION 2(1) (C)]

AMOUNT OF COMPENSATION [SECTION 4]

Amount of compensation is payable in the event of an employee meeting with an

accident resulting into temporary or permanent disability or disease as stated in Schedule II
and III in terms of Section 4 of the Act, read with Schedule IV.

Schedule II contains a list of persons engaged in different employments/ operations

specified therein who are covered by the definition of employee and entitled to compensation
e.g. a person employed for loading/unloading of materials in a factory or ship, persons
employed in work incidental or connected with manufacturing process.

Schedule III contains a list of occupational diseases which if contracted while in

employment entitles an employee to compensation such as disease caused by lead, mercury,
etc.

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 Schedule IV lays down the relevant factor (a certain figure) related to the age of the
employee at the time of death, injury or accident by which wages are multiplied to arrive at
compensation.

AMOUNT OF COMPENSATION (SEC.4)

 The nature of injury caused by accident,

 The monthly wages of the employee concerned
 The relevant factor for working out lump-sum equivalent of compensation amount as
specified in Schedule IV.

Provides for the compensation in Sec.4—

1. Death

2. Permanent total disablement

3. Permanent partial disablement

4. Temporary disablement, whether total or partial.

Compensation for death

Where death results from an injury, the amount of compensation shall be equal to 50
per cent of the monthly wages of the deceased employee multiplied by the relevant factor as
given as column for completed years of age on the last birthday as given in column, 1 or Rs
one lakh twenty thousand whichever is more.

The formula for calculating the amount of compensation in case of death;

50 x Monthly wages x relevant factor

_______________________________

100

Or Rs. 1, 20,000, whichever is more

Compensation for permanent total disablement (Sec.4)

In permanent total disablement results from an injury, the amount of compensation

payable shall be equal to 60 per cent of the monthly wages of the injured employee multiplied
by the relevant factor, or Rs. 1, 40,000, whichever is more. Formula:

Page 46 of 148
 60 x Monthly wages x relevant factor

________________________________

100

Or Rs. 1, 40,000, whichever is more

Compensation for temporary disablement - total or partial

In temporary disablement, whether total or partial, results from the injury, the amount
of compensation shall be a half-monthly payment of the sum equivalent to 25 percent of
monthly wages of the employee, 25 per cent of monthly wages of the employee shall be
payable every half month.

If an employee is earning Rs.500 a month before the temporary disablement is caused,

he will be entitled to a compensation of 25 per cent of Rs. 500 that is Rs, 125 every half-
month till the disablement lasts. But if the employee is earning Rs. 300 a month after the
accident, his half- monthly payment shall not exceed 25 per cent of Rs. 200.

RELEVANT FACTOR SCHEDULE IV OF WORKMEN

COMPENSATION ACT (NOW KNOWN AS – EMPLOYEE’S
COMPENSATION ACT)
Age is the completed years of age, of the workman or employee on the last birthday.
The last birthday is the latest birthday of the workman which is immediately preceding the
due date of compensation liability.

Age Factor Age Factor Age Factor Age Factor

16 228.54 29 209.92 42 178.49 55 135.56

17 227.49 30 207.98 43 175.54 56 131.95

18 226.38 31 205.95 44 172.52 57 128.33

19 225.22 32 203.85 45 169.44 58 124.7

20 224 33 201.66 46 166.29 59 121.05

21 222.71 34 199.4 47 163.07 60 117.41

22 221.37 35 197.06 48 159.8 61 113.77

23 219.95 36 194.64 49 156.47 62 110.14

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24 218.47 37 192.14 50 153.09 63 106.52

25 216.91 38 189.56 51 149.67 64 102.93

26 215.28 39 186.9 52 146.2 65 ormore99.37

27 213.57 40 184.17 53 142.68

28 211.79 41 181.37 54 139.13

Compensation to be paid when due and penalty for default

TIME OF PAYMENT OF COMPENSATION: SECTION 4A

Case:-Smt. Jayamma v. Executive Engineer, P.W.D. Madhugiri Division

Compensation under Section 4 shall be paid as soon as it falls due. Compensation

becomes due on the date of death of employee and not when Commissioner decides it.

The employer is required to deposit or to make provisional payment based on the

extent of liability which he accepts with the Commissioner or hand over to the employee as
the case may be even if the employer does not admit the liability for compensation to the
extent claimed.

Where an employer is in default in paying compensation, he would be liable to pay

interest thereon and also a further sum not exceeding fifty percent of such amount of
compensation as penalty. The interest and the penalty stated above are to be paid to the
employee or his dependent as the case may be.

METHOD OF CALCULATING WAGES (SECTION 5)

Monthly wages mean the amount of wages deemed to be payable for a month’s
service and calculated as follows:

(a) Where the employee has, during a continuous period of not less than 12 months
immediately preceding the accident, been in the service of the employer who is liable
to pay compensation, the monthly wages of the employee shall be 1/12th of the total
wages which have fallen due for payment to him by the employer in the last 12
months of that period.

(b) Where the whole of the continuous period of service was less than one month, the
monthly wages of the employee shall be the average monthly amount which during
the 12 months immediately preceding the accident was being earned by an employee

Page 48 of 148
 employed on the same work by the same employer, or, if there was no employee so
employed, by an employee employed on similar work in the same locality.

(c) In other cases, including cases in which it is not possible to calculate the monthly
wages under clause (b) the monthly wages shall be 30 times the total wages earned in
respect of the last continuous period of service, immediately preceding the accident
from the employer who is liable to pay compensation, divided by the number of days
comprising such period.

A period of service shall be deemed to be continuous which has not been interrupted
by a period of absence from work exceeding 14 days.

REVIEW OF HALF-MONTHLY PAYMENT [SECTION 6]

Any half-monthly payment payable under this Act, either under an agreement
between the parties or under the order of a Commissioner may be reviewed by the
Commissioner on the application either of the employer or of the employee accompanied by
the certificate of a qualified medical practitioner that there has been a change in the condition
of the employee or subject to rules made under this Act, an application made without such
certificate.

Any half monthly payment, may on review, under the above provisions be continued,
increased, decreased or ended, or if the accident is found to have resulted in permanent
disablement, be converted to the lump sum to which the employee is entitled less any amount
which he has already received by way of half-monthly payments.

COMMUTATION OF HALF MONTHLY PAYMENTS [SECTION 7]

Any right to receive half-monthly payments may, by agreement between the parties or
if the parties cannot agree and the payments have been continued for not less than 6 months
on the application of either party to the Commissioner, be redeemed by the payment of a
lump sum of such amount as may be agreed to by the parties or determined by the
Commissioner as the case may be.

DISTRIBUTION OF COMPENSATION (SECTION 8)

 No compensation has to be paid in respect of an employee whose injury has resulted
in death and no payment of lump sum compensation to a woman or a person under a
legal disability except by deposit with the Commissioner.

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  The employer cannot make payment of compensation directly to the deceased legal
heirs. It is the Commissioner who decides on the distribution of compensation to the
legal heirs of the deceased employee.
 Right to claim compensation passes to heirs of dependant as there is no provision
under the Act to this effect.
 Payment of ex-gratia or employment on compassionate grounds will not be
employers’ liability.

COMPENSATION NOT TO BE ASSIGNED (SECTION 9)

Save as provided by this Act, no lump sum or half-monthly payment payable under
this Act can be assigned, or charged or attached or passed to any person other than the
employee by operation of law nor can any claim be set-off against the same.

COMPENSATION TO BE FIRST CHARGE (SECTION 14A)

 The compensation money shall bear the first charge on the assets transferred by the
employer.
 It says that where an employer transfers his assets before any amount due in respect of
any compensation, the liability whereof accrued before the date of transfer has been
paid, such amount shall, notwithstanding anything contained in any other law for the
time being in force, be a first charge on that part of the assets so transferred as
consists of immovable property.

INSOLVENCY OF EMPLOYER AND THE COMPENSATION

[SECTION 14]
 Where any employer has entered into a contract with any insurers in respect of any
liability under this Act to any employee, then in the event of the employer becoming
insolvent or making a composition or scheme of arrangement with his creditors or, if
the employer is a company, in the event of the company having commenced to be
wound up, the rights of the employer against the insurers as respects that liability
shall, notwithstanding anything in any law for the time being in force relating to
insolvency or the winding up of companies, be transferred to and vest in the
employee, and upon any such transfer the insurers shall have the same rights and
remedies and be subject to the same liabilities as if they were the employer, so,

Page 50 of 148
 however, that the insurers shall not be under any greater liability to the employee than
they would have been under the employer.
 If the liability of insures to the employee is less than the liability of the employer to
the employee, the employee may prove for the balance in the insolvency proceedings
or liquidation.
 Where in any case such as is referred to in sub-section (1) the contract of the
employer with the insurers is void or voidable by reason of non-compliance on the
part of the employer with any terms or conditions of the contract (other than a
stipulation for the payment of premium), the provisions of that sub-section shall apply
as if the contract were not void or voidable, and the insurers shall be entitled to prove
in the insolvency proceedings or liquidation for the amount paid to the employee.
 But the employee is required to give notice of accident and resulting disablement
there from to the insurers as soon as possible after he becomes aware of the
insolvency or liquidation proceedings otherwise the above provisions shall not be
applied.
 There shall be deemed to be included among the debts which under Section 49 of the
Presidency Towns Insolvency Act, 1909, or under Section 61 of the Provincial
Insolvency Act, 1920 or under Section 530 of the Companies Act, 1956, are in the
distribution of property of an insolvent or in the distribution of the assets of a
company being wound up to be paid in priority to all other debts, the amount due in
respect of any compensation the liability where for accrued before the date of the
order of adjudication of the insolvent or the date of the commencement of the winding
up, as the case may be, and those Acts shall have effect accordingly.
 Where the compensation is half-monthly payment, the amount due in respect thereof
shall, for the purposes of this Section, be taken to be the amount of the lump sum for
which the half monthly, payment could, if redeemable be redeemed if application
were made for that purpose under Section 7, and a certificate of the Commissioner as
to the amount of such sum shall be conclusive proof thereof.
 The provisions of sub-section (iv) shall apply in the case of any amount for which an
insurer is entitled to prove under sub-section (iii) but otherwise those provisions shall
not apply where the insolvent or the company being wound up has entered into such a
contract with insurers as if referred to in sub-section (i).
 This Section shall not apply where a company is wound up voluntarily merely for
purpose of reconstruction or of amalgamation with another company.

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CONTRACTING OUT OF COMPENSATION [SECTION 17]
Any contract or agreement whereby an employee relinquishes any right of
compensation from the employer for personal injury arising out of or in the course of
the employment shall be null and void in so far as it purports to remove or reduce the
liability of any person to pay compensation under this Act.

OBLIGATIONS AND RESPONSIBILITY OF AN EMPLOYER

(i) Power of Commissioner to require from employers statements regarding

fatal accidents (Section 10A)
 Where a Commissioner receives information from any source that an employee has
died as a result of an accident arising out of and in the course of his employment, he
may send by registered post a notice to the employee’s employer requiring him to
submit, within 30 days of the service of the notice, a statement, in the prescribed form
giving the circumstances attending the death of the employee, and indicating whether,
in the opinion of the employer, he is or is not liable to deposit compensation on
account of the death.
 If the employer is of opinion that he is liable to deposit compensation, he shall make
the deposit within 30 days of the service of the notice.
 If the employer is of opinion that he is not liable to deposit compensation, he shall in
his statement indicate the grounds on which he disclaims liability.
 Where the employer has so disclaimed liability, the Commissioner, after such inquiry
as he may think fit, may inform any of the dependents of the deceased employee, that
it is open to the dependents to prefer a claim for compensation and may give them
such other further information as he may think fit.

(ii) To submit reports of fatal accidents and serious bodily injuries

 Where by any law for the time being in force, notice is required to be given to any
authority, by or on behalf of an employer, of any accident occurring in his premises
which results in death or serious bodily injury, the person required to give the notice
shall, within seven days of the death or serious bodily injury, send a report to the
Commissioner giving the circumstances attending the death or serious bodily injury in
the prescribed form (Form EE of the Workmen’s Compensation Rules: Rule 17).

Page 52 of 148
  “Serious bodily injury” means an injury which involves, or in all probability will
involve, the permanent loss of the use of, or permanent injury to, any limb, or the
permanent loss of or injury to the sight or hearing, or the fracture of any limb, or the
enforced absence of the injured person from work for a period exceeding twenty days.
[Expl. to Section 10B(1)]
 The State Government may, by notification in the Official Gazette, extend the
provisions of sub-section (i) to any class of premises other than those coming within
the scope of that sub-section, and may, by such notification, specify the persons who
shall send the report to the Commissioner.
 Section 10B - Nothing in this section shall apply to the factories to which the
Employees’ State Insurance Act, 1948, applies.

NOTICE AND CLAIM

No claim for compensation shall be entertained by a Commissioner unless the notice

of the accident has been given in the manner hereinafter provided as soon as practicable after
the happening thereof and unless the claim is preferred before him within two years of the
occurrence of the accident or, in case of death, within two years from the date of death.
(Section 10)

Provided that:

 where the accident is the contracting of a disease the accident shall be deemed to have
occurred on the first of the days during which the employee was continuously absent
from work in consequence of the disablement caused by the disease;
 in case of partial disablement due to the contracting of any such disease and which
does not force the employee to absent himself from work, the period of two years
shall be counted from the day the employee gives notice of the disablement to his
employer;
 if an employee who, having been employed in an employment for a continuous period
specified under sub-section 3(2) in respect of that employment ceases to be so
employed and develops symptoms of an occupational disease peculiar to that
employment within two years of the cessation of employment, the accident shall be
deemed to have occurred on the day on which the symptoms were first detected.
 The want of or any defect or irregularity in a notice shall not be a bar to the
entertainment of a claim:

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  if the claim is preferred in respect of the death of an employee resulting from
an accident which occurred in the premises of the employer, or at any place
where the employee at the time of the accident was working under the control
of the employer or of any person employed by him, and the employee died on
such premises, or at such place, or on any premises belonging to the employer,
or died without having left the vicinity of the premises or place where the
accident occurred, or
 if the employer or any one of several employers or any persons responsible to
the employer for the management of any branch of the trade or business in
which the injured employee was employed had knowledge of the accident
from any other source at or about the time when it occurred.
 The Commissioner may entertain and decide any claim to compensation in any case
notwithstanding that the notice has not been given, or the claim has not been
preferred, in due time as provided in this sub-section, if he is satisfied that the failure
to give the notice or prefer the claim, as the case may be, was due to sufficient cause.

(b) Every such notice shall give the name and address of the person injured and shall state in
ordinary language the cause of the injury and the date on which the accident happened, and
shall be served on the employer or upon any one of several employers, or upon any person
responsible to the employer for the management of any branch of the trade or business in
which the injured employee was employed.

(c) The State Government may require that any prescribed class of employers shall maintain
at their premises at which employees are employed a notice-book, in the prescribed form,
which shall be readily accessible at all reasonable times to any injured employee employed
on the premises and to any person acting bona fide on his behalf.

(d) A notice under this section may be served by delivering it at, or sending it by registered
post addressed to the residence or any office or place of business of the person on whom it is
to be served or, where a notice-book is maintained, by entry in the notice-book. The
Commissioner can initiate sue motu proceedings and can waive the period of limitation under
this Section.

MEDICAL EXAMINATION [SECTION 11]

(i) Where an employee has given notice of an accident, he shall, if the employer, before
the expiry of 3 days from the time at which service of the notice has been effected,

Page 54 of 148
 offers to have him examined free of charge by a qualified medical practitioner, submit
himself for such examination, and any employee who is in receipt of half monthly
payment under this
(ii) Act shall, if so required, submit himself for such examination from time to time as per
the rules under the Act.
(iii)If an employee refuses to submit himself for examination by a qualified medical
practitioner or in any way obstructs the same, his right to compensation shall be
suspended during the continuance of such refusal, or obstruction unless, in the case of
refusal, he was prevented by any sufficient cause from so submitting himself.
(iv) If an employee, voluntarily leaves without having been so examined the vicinity of
the place in which he was employed, his right to compensation shall be suspended
until he returns and officers himself for such examination.
(v) Where an employee, whose right to compensation has been suspended under sub-
section (ii) or subsection (iii), dies without having submitted himself for medical
examination as required by either of those subsections, the Commissioner may, if he
thinks fit, direct the payment of compensation to the dependants of the deceased
employee.
(vi) Where under sub-section (ii) or sub-section (iii) a right to compensation is suspended,
no compensation shall be payable in respect of the period of suspension, and, if the
period of suspension commences before the expiry of the waiting period referred to in
clause (d) of subsection (i) of Section 4, the waiting period shall be increased by the
period during which the suspension continues.
(vii) Where an injured employee has refused to be attended by a qualified medical
practitioner whose services have been offered to him by the employer free of charge
or having accepted such offer has deliberately disregarded the instructions of such
medical practitioner, then, if it is proved that the employee has not thereafter been
regularly attended by a qualified medical practitioner or having been so attended had
deliberately failed to follow his instructions and that such refusal, disregard or failure
was unreasonable in the circumstances of the case and that the injury has been
aggravated thereby, the injury and resulting disablement shall be deemed to be of the
same nature and duration as they might reasonably have been expected to be if the
employee had been regularly attended by a qualified medical practitioner, whose
instructions he had followed, and compensation, if any, shall be payable accordingly.

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Case:-Burhwal Sugar Mills Ltd. v. Ramjan

The Allahabad High Court observed that Section 11 confers a right and not an
obligation on employer to have workmen medically examined. If he does not do so it will not
debar employer from challenging medical certificate produced by employee. The court held
that where the award of compensation was passed on basis of medical certificate without
examination of doctor on oath, the award was liable to be quashed since there was no
evidence on oath on which compensation could be awarded.

PROCEDURE IN THE PROCEEDINGS BEFORE THE

COMMISSIONER

(i) Appointment of Commissioners [Section 20]

 State Government may, by notification in the Official Gazette, appoint any person
who is or has been a member of a State Judicial Service for a period of not less than
five years or is or has been for not less than five years an advocate or a pleader or is or
has been a Gazetted Officer for not less than five years having educational
qualifications and experience in personal management, human resource development
and industrial relations to be a
 Commissioner for Employee’s Compensation for such area as may be specified in the
notification.
 Where more than one Commissioner has been appointed for any area, the
Government may by general or special order regulate the distribution of business
between them.
 Every Commissioner shall be deemed to be a public servant within the meaning of the
Indian Penal Code.
 Section 20(3) empowers the Commissioner to appoint or choose any person,
possessing special knowledge of any matter relevant to the matter under inquiry, to
assist him in holding the inquiry.

(ii) Reference to Commissioner and his jurisdiction [Section 19(1)]

Jurisdiction of a Commissioner to entertain a claim in respect of payment of
compensation to an employee The Commissioner is empowered in default of an agreement to
settle any question which may arise in any proceeding under this Act as to the liability of any

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person to pay compensation, and in particular, the Commissioner has jurisdiction over
following matters:

 Liability of any person to pay compensation.

 Whether a person injured is or is not an employee?
 The nature and extent of disablement.
 The amount or duration of compensation.

Case: - United India Fire & General Insurance Co. Ltd. v. Kamalalshi

If an application is made under the Employee’s Compensation Act to the

Commissioner, he has, by virtue of Section 19(1) of the Act, jurisdiction to decide any
question as to the liability of any person including an insurer to pay compensation. Section
19(2) further provides that the enforcement of that liability can only be made by him. The
Commissioner’s jurisdiction is wide enough to decide the tenability of the objections; the
consequential direction of the Commissioner to the insurer to pay is also covered under
Section 19(1). In any event in execution of the order against the insured, namely, the
employer, the Commissioner can enforce his liability against the insurer under Section 31. In
the light of Section 19 read along with Section 31, the order of the Commissioner can never
be challenged as being without jurisdiction.

(iii) Jurisdiction of Civil Court barred

Case:-Madina Saheb v. Province of Madras

No Civil Court shall have jurisdiction to settle, decide or deal with any question
which is by or under this Act required to be settled, decided or dealt with by a Commissioner
or to enforce any liability incurred under this Act. However, where the Commissioner has no
jurisdiction to decide any matter and even fails to decide when raised, thereby leaving a party
without any defence the Civil Court will have jurisdiction to entertain such suits.

(iv) Venue of proceedings and transfer [Section 21]

Where any matter under this Act is to be done by or before a Commissioner, the same
shall, subject to the provisions of this Act and to any rules made hereunder, be done by or
before the Commissioner for the area in which:

 the accident took place which resulted in the injury; or

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  the employee or in case of his death, the dependent claiming the compensation
ordinarily resides; or
 the employer has his registered office:

No matter shall be processed before or by a Commissioner, other than the Commissioner

having jurisdiction over the area in which the accident took place, without his giving notice in
the manner prescribed by the Central Government to the Commissioner having jurisdiction
over the area and the State Government concerned:

Where the employee, being the master of a ship or a seaman or the captain or a member
of the crew of an aircraft or an employee in a motor vehicle or a company, meets with the
accident outside India any such matter may be done by or before a Commissioner for the area
in which the owner of agent of the ship, aircraft or motor vehicle resides or carries on
business or the registered office of the company is situate, as the case may be.

If a Commissioner, other than the Commissioner with whom any money has been
deposited under Section 8, proceeds with a matter under this Act, the former may for the
proper disposal of the matter call for transfer of any records or money remaining with the
latter and on receipt of such a request, he shall comply with the same.

If a Commissioner is satisfied that any matter arising out of any proceedings pending
before him can be more conveniently dealt with by any other Commissioner, whether in the
same State or not, he may, subject to rules made under this Act, order such matter to be
transferred to such other Commissioner either for report or for disposal, and, if he does so,
shall forthwith transmit to such other Commissioner all documents relevant for the decision
of such matter and, where the matter is transferred for disposal, shall also transmit in the
prescribed manner any money remaining in his hands or invested by him for the benefit of
any party to the proceedings:

The Commissioner shall not, where any party to the proceedings has appeared before
him, make any order of transfer relating to the distribution among dependants of a lump sum
without giving such party an opportunity of being heard.

The Commissioner to whom any matter is so transferred shall, subject to rules made
under this Act, inquire thereto and, if the matter was transferred for report, return his report
thereon or, if the matter was transferred for disposal, continue the proceedings as if they had
originally commenced before him.

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 On receipt of a report from a Commissioner to whom any matter has been transferred
for report under Subsection (2), the Commissioner by whom it was referred shall decide the
matter referred in conformity with such report.

The State Government may transfer any matter from any Commissioner appointed by
it to any other Commissioner appointed by it.

(v) Form of application (Section 22)

All claims for compensation subject to the provision of the Act shall be made to the
Commissioner. But such applications other than the applications made by dependant or
dependants can only be submitted when the parties have failed to settle the matter by
agreement.

An Application to a Commissioner may be made in such form and shall be accompanied

by such fee, if any, as may be prescribed and shall contain, in addition to any particulars
which may be prescribed, the following particulars namely:

 a concise statement of the circumstances in which the application is made and the
relief of order which the applicant claims;
 in the case of a claim for compensation against an employer, date of service of notice
of the accident on the employer and, if such notice has not been served or has not
been served in due time, the reason for such omission;
 the names and addresses of the parties; and
 Except in the case of an application by dependents for compensation, a concise
statement of the matters on which agreement has and of those on which agreement has
not been come to.

If the applicant is illiterate or for any other reason is unable to furnish the required
information in writing, the application shall, if the applicant so desires, be prepared under the
direction of the Commissioner.

Case: - M.B. & G. Engineering Factory v. Bahadur Singh

However, any defect in the application, e.g., when it is not in the prescribed form
cannot be fatal to the claim. Any such irregularity can be rectified with the permission of the
Commissioner at any stage.

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(vi)Power of the Commissioner to require further deposit in case of fatal
accident (Section 22A)

Where the Commissioner is of the opinion that any sum deposited by the employer as
compensation payable on the death of an employee, is insufficient, he is empowered to call
upon, by a notice in writing stating his reasons, the employer to show because why he should
not make a further deposit within a stipulated period. If the employer fails to show cause to
the satisfaction of the Commissioner, the Commissioner may make an award determining the
total amount payable and requiring him to deposit the deficiency.

(vii) Powers and procedure of Commissioners (Section 23)

The Commissioner shall have for the following purposes, all the powers of a Civil
Court under the Code of Civil Procedure, 1908 for the purpose of:

 taking evidence on oath;

 enforcing the attendance of witnesses; and
 Compelling the production of documents and material objects.

(viii) Appearance of parties

Any appearance, application or act required to be made or done by any person before
or to a Commissioner other than an appearance of a party which is required for the purpose of
his examination as a witness, may be made or done on behalf of such person, by a legal
practitioner or by an official of an Insurance Company or registered Trade Union or by an
Inspector appointed under Section 8(1) of the Factories Act, 1948, or under Section 5(1) of
the Mines Act, 1952 or by any other officer specified by the State Government in this behalf,
authorised in writing by such person, or, with the permission of the Commissioner by any
other person so authorised.

(ix) Method of recording evidence (Section 25)

 The Commissioner shall make a brief memorandum of the substance of the evidence
of every witness as the examination of the witness proceeds, and such memorandum
shall be written and signed by the Commissioner with his own hand and shall form a
part of the record.
 If the Commissioner is prevented from making such memorandum, he shall record the
reason of his inability to do so and shall cause such memorandum to be made in

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 writing from his dictation and shall sign the same and such memorandum shall form a
part of the record.
 The evidence of any medical witness shall be taken down as nearby as may be word
for word.

Case:-M.S.N. Co. Ltd. v. Mohd. Kunju

It was held that the Commissioner should not make a medical certificate the basis of
his award unless he has examined the concerned medical officer.

(x) Time Limit for disposal of cases relating to compensation [Section25A]

The Commissioner shall dispose of the matter relating to compensation within a

period of 3 months from the date of reference and intimate the decision in respect thereof
within the period to the employee.

(xi) Costs (Section 26)

All costs, incidental to any proceedings before a Commissioner, shall subject to rules
made under this Act, be in the discretion of the Commissioner. However, the Commissioner
must use his discretion judiciously.

(xii) Power to submit cases (Section 27)

A Commissioner may, if he thinks fit, submit any question of law for the decision of
the High Court and, if he does so, shall decide the question in conformity with such decision.

(xiii) Registration of agreements [Section 28]

It is obligatory for the employer to send a memorandum to the Commissioner where
amount of any lump sum payable as compensation has been settled by agreement:

 whether by way of redemption of a half-monthly payment or otherwise, or

 Where a compensation has been settled as being payable to a woman or a person
under a legal disability.

The Commissioner shall record the memorandum in a register in the prescribed manner,
after he has satisfied himself as to its genuineness provided that the Commissioner has given
at least 7days notice to the parties concerned before recording such memorandum. The
Commissioner may at any time rectify the register.

The Commissioner may refuse to register the memorandum on the following grounds:

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  Inadequacy of the sum or amount settled; or
 Agreement obtained by fraud or undue influence or other improper means.

The Commissioner may in such a situation make such order including an order as to any
sum already paid under the agreement, as he thinks just in the circumstances.

An agreement which has been registered as aforesaid shall be enforceable under this Act
notwithstanding anything contained in the Indian Contract Act, 1872, or in any other law for
the time being in force.

(xiii) (Section 29) - Effect of failure to register agreement

Where a memorandum of any agreement, the registration of which is required by
Section 28 is not sent to the Commissioner as required by that Section, the employer shall be
liable to pay the full amount of compensation which he is liable to pay under the provisions
of this Act, and notwithstanding anything contained in the proviso to sub-section (1) of
Section 4, shall not unless the Commissioner otherwise directs, be entitled to deduct more
than half of any amount paid to the employees by way of compensation whether under the
agreement or otherwise.

APPEALS (SECTION 30)

An appeal shall lie to the High Court from the following orders of a Commissioner,
namely:

 an order awarding as compensation a lump sum whether by way of redemption of a

half-monthly payment or otherwise or disallowing a claim in full or in part for a lump
sum;
 an order awarding interest or penalty under Section 4A;
 an order refusing to allow redemption of a half-monthly payment;
 an order providing for the distribution of compensation among the dependants of a
deceased employee or disallowing any claim of a person alleging himself to be such
dependant;
 an order allowing or disallowing any claim for the amount of an indemnity under the
provisions of Subsection (2) of Section 12; or
 An order refusing to register a memorandum of agreement or registering the same or
providing for the registration of the same subject to conditions.

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 Such appeal should be filed within 60 days of order. The section empowers appellate
Court to infer with findings recorded by commissioner only in case of substantial error of
law. The provisions of Section 5 of Limitation Act, 1963 shall be applicable to appeals under
the Section.

No appeal shall lie unless the following requirements are fulfilled:

 A substantial question of law is involved in the appeal.
 In case of order, other than order refusing to allow redemption of a half-monthly
payment, unless the amount in dispute in the appeal is not less than three hundred
rupees;
 The memorandum of appeal should be accompanied by a certificate by the
Commissioner to the effect that the applicant has deposited with him the amount
payable under the order appealed against. Deposit of compensation amount is alone
contemplated: deposit of penalty or interest is not condition precedent for filing
appeal.
 The appeal does not relate to any case in which the parties have agreed to abide by the
decision of the Commissioner, or in which the order of the Commissioner gives effect
to an agreement come to by the parties.
 Jurisdiction conferred on High Court being special any further appeal against the
judgement is barred. No. leave petition was therefore held maintainable. Finding
whether the claimant was an employee arrived by commissioner on material on record
is a fact hence no further appeal is allowed.

WITHHOLDING OF CERTAIN PAYMENTS PENDING DECISION OF

APPEAL (SECTION 30A)
Where an employer makes an appeal under clause (a) of sub-section (1) of Section 30,
the Commissioner may, and if so directed by the High Court, shall, pending the decision of
the appeal, withhold payment of any sum in deposit with him.

RECOVERY (SECTION 31)

The Commissioner may recover, as an arrear of land revenue, any amount payable by
any person under this Act, whether under an agreement for the payment of compensation or
otherwise, and the Commissioner shall be deemed to be a public officer within the meaning
of Section 5 of the Revenue Recovery Act, 1890.

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PENALTIES [SECTION 18A]
The Act prescribes penalties for the contravention of the provisions of the Act which
include fine up to Rs. 5,000.The following omissions attract this punishment under the Act:

 Whosoever fails to maintain a notice book which he is required to maintain under

Section 10(3); or
 Whosoever fails to send to the Commissioner a statement of fatal accidents which he
is required to send under Section 10A(1); or
 Whosoever fails to send a report of fatal accidents and serious bodily injuries which
he is required to send under Section 10B; or
 Whosoever fails to make a return of injuries and compensation which he is required to
make under Section 16.

No prosecution under Section 18A shall be instituted except by or with the previous
sanction of the Commissioner and no court shall take cognizance of any offence under this
section unless complaint is made within 6 months of the date on which the alleged
commission of offence comes to the knowledge of the Commissioner.

CONCLUSION

The Workman Compensation Act, 1923 was formed to provide compensations for
workers who acquired/acquire injuries caused by accidents in the course of employment. It
ensures that their rights and value as labourers is maintained. Therefore employers are
obligated to pay compensations to workers who got injuries that led to disablement or even
death in the course of employment

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 UNIT - III

EMPLOYEES’ STATE INSURANCE ACT, 1948

INTRODUCTION

The Employee State Insurance Act, [ESIC] 1948, is a piece of social welfare
legislation enacted primarily with the object of providing certain benefits to employees in
case of sickness, maternity and employment injury and also to make provision for certain
others matters incidental thereto.

The Act in fact tries to attain the goal of socio-economic justice enshrined in the
Directive principles of state policy under part 4 of our constitution, in particular, articles 41,
42 and 43 which enjoin the state to make effective provision for securing, the right to work,
to education and public assistance in cases of unemployment, old age, sickness and
disablement. The act strives to materialize these avowed objects through only to a limited
extent.

This act becomes a wider spectrum than factory act, in the sense that the factory act is
concerned with the health, safety, welfare, leave etc of the workers employed in the factory
premises only. But the benefits of this act extend to employees whether working inside the
factory or establishment or elsewhere or they are directly employed by the principal
employee or through an intermediate agency, if the employment is incidental or in connection
with the factory or establishment. Related Legislations: ESI (Central) Rules, 1950 and ESI
(General) Regulations, 1950

ORIGIN OF THE ACT

The Employee State Insurance act was promulgated by the Parliament of India in the
year 1948. To begin with the ESIC scheme was initially launched on 2nd February 1952 at
just two industrial centres in the country namely Kanpur and Delhi with a total coverage of
about 1.20 lakhs workers. There after the scheme was implemented in a phased manner
across the country with the active involvement of the state governments.

OBJECTIVE AND SCOPE OF THE ACT

 The Employees’ State Insurance Act, 1948 provides for certain benefits to employees
in case of sickness, maternity and employment injury and also makes provisions for
certain other matters in relation thereto.

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  The Act has been amended by the Employees’ State Insurance (Amendment) Act,
2010 for enhancing the Social Security Coverage, streamlining the procedure for
assessment of dues and for providing better services to the beneficiaries.
 The Act extends to the whole of India.
 The Central Government is empowered to enforce the provisions of the Act by
notification in the Official Gazette, to enforce different provisions of the Act on
different dates and for different States or for different parts thereof [Section 1(3)].
 The Act applies in the first instance to all factories (including factories belonging to
the Government) other than seasonal factories [Section 1(4)].
 According to the proviso to Section 1(4) of the Act, nothing contained in sub-section
(4) of Section 1 shall apply to a factory or establishment belonging to or under the
control of the Government whose employees are otherwise in receipt of benefits
substantially similar or superior to the benefits provided under the Act.
 Section 1(5) of the Act empowers the appropriate Government to extend any of the
provisions of the Act to any other establishment or class of establishments, industrial,
commercial, agricultural or otherwise after giving one month’s notice in the Official
Gazette.
 However, this can be done by the appropriate Government, only in consultation with
the Employees’ State Insurance Corporation set up under the Act and, where the
appropriate Government is a State Government, it can extend the provisions of the
Act with the approval of the Central Government.
 Under these enacting provisions, the Act has been extended by many State
Governments to shops, hotels, restaurants, cinemas, including preview theatres,
newspaper establishments, road transport undertakings, etc., employing 20 or more
persons.

Case:-ESIC v. M.M. Suri & Associates Pvt. Ltd

It is not sufficient that 20 persons are employed in the shop. They should be employee
as per Section 2(9) of the Act, getting the wages prescribed therein.

 According to the proviso to sub-section (5) of Section 1 where the provisions of the
Act have been brought into force in any part of a State, the said provisions shall stand
extended to any such establishment or class of establishment within that part, if the
provisions have already been extended to similar establishment or class of
establishments in another part of that State.

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  It may be noted that a factory or an establishment to which the Act applies shall
continue to be governed by this Act even if the number of persons employed therein
at any time falls below the limit specified by or under the Act or the manufacturing
process therein ceases to be carried on with the aid of power. [Section 1(6)]
 The coverage under the Act is at present restricted to employees drawing wages not
exceeding 15,000 per month.

SALIENT FEATURES OF ESI ACT 1948

1. Facilitating coverage of smaller factories;

2. Enhancing age limit of dependent children for eligibility to dependants
benefit;
3. Extending medical benefit to dependant minor brother/sister in case of not
having own family and whose parents are also not alive;
4. Streamlining the procedure for assessment of dues from defaulting employers;
5. Providing an Appellate Authority within the Corporation against assessment to
avoid unnecessary litigation;
6. Continuing medical benefit to insured persons retiring under VRS scheme or
taking premature retirement;
7. Treating commuting accidents as employment injury;
8. Streamlining the procedure for grant of exemptions;
9. Third party participation in commissioning and running of the Hospitals;
10. Opening of medical/dental/paramedical/nursing colleges to improve quality of
medical care;
11. Making an enabling provision for extending medical care to other
beneficiaries against payment of user charges to facilitate providing of medical
care from under-utilised ESI Hospitals to the BPL families covered under the
Rashtriya Swasthaya Bima Yojana introduced by the Ministry of Labour &
Employment.
12. Empowering State governments to set up autonomous Corporations for
administering medical benefit in the States for bringing autonomy and
efficiency in the working.

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IMPORTANT DEFINITIONS

APPROPRIATE GOVERNMENT [SECTION 2(1)]

Means

 the Central Government - in respect of establishments under the control of the Central
Government or a railway administration or a major port or a mine or oil-field; and
 the State Government - in all other cases

CONFINEMENT [SECTION 2(3)]

Means

Labour resulting in the issue of a living child or labour after 26 weeks of pregnancy
resulting in the issue of child whether alive or dead.

CONTRIBUTION [SECTION 2(4)]

Means

The sum of money payable to the Corporation by the principal employer in respect of
an employees and includes any amount payable by or on behalf of the employee in
accordance with the provisions of this Act.

DEPENDENT [SECTION 2(6A)]

Means

 Any of the following relatives of a deceased insured person namely:

 a widow, a legitimate or adopted son who has not attained the age of twenty-five
years,, an unmarried legitimate or adopted daughter,
 widowed mother,
 if wholly dependent on the earnings of the insured person at the time of his death, a
legitimate or adopted son or daughter who has attained the age of 25 years and is
infirm;
 if wholly or in part dependent on the earnings of the insured person at the time his
death:
 a parent other than a widowed mother,

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  a minor illegitimate son, an unmarried illegitimate daughter or a daughter
legitimate or adopted or illegitimate if married and minor or if widowed and a
minor,
 a minor brother or an unmarried sister or a widowed sister if a minor,
 a widowed daughter-in-law,
 a minor child of a pre-deceased son,
 a minor child of a pre-deceased daughter where no parent of the child is alive
or,
 a paternal grandparent if no parent of the insured person is alive.

EMPLOYMENT INJURY [SECTION 2(8)]

It means a personal injury to an employee caused by accident or an occupational

disease arising out of and in the course of his employment, being an insurable employment,
whether the accident occurs or the occupational disease is contracted within or outside the
territorial limits of India.

It is well settled that an employment injury need not necessarily be confined to any
injury sustained by a person within the premises or the concern where a person works.
Whether in a particular case the theory of notional extension of employment would take in
the time and place of accident so as to bring it within an employment injury, will have to
depend on the assessment of several factors.

There should be a nexus between the circumstances of the accident and the
employment. On facts no case could be an authority for another case, since there would
necessarily be some differences between the two cases. Therefore, each case has to be
decided on its own facts. It is sufficient if it is proved, that the injury to the employee was
caused by an accident arising out of and in the course of employment no matter when and
where it occurred. There is not even a geographical limitation.

Case:-Regional Director, E.S.I. Corpn. v L. Ranga Rao

The accident may occur within or outside the territorial limits of India. However,
there should be a nexus or casual connection between the accident and employment. The
place or time of accident should not be totally unrelated to the employment.

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Case:-Regional Director ESI v. Francis de Costa in year 1997

Where an employee who is on his way to factory meets with an accident, one from the
place of employment, the Court held that the injury cannot be said to be caused by accident
arising out of and in the course of his employment. Mere road accident on a public road while
employee was on his way to place of employment cannot be said to have its origin in his
employment in the factory.

Case:-E.S.I. Corpn. Indore v. Babulal,

The M.P. High Court held that injury arose out of employment where a workman
attending duty in spite of threats by persons giving call for strike and was assaulted by them
while returning after his duty was over.

Case:-Jayanthilal Dhanji Co. v. E.S.I.C

A worker was injured while knocking the belt of the moving pulley, though the injury
caused was to his negligence, yet such an injury amounts to an employment injury.

Case:-Shyam Devi v. E.S.I.C.

The word injury does not mean only visible injury in the form of some wound. Such a
narrow interpretation would be inconsistent with the purposes of the Act which provides
certain benefits in case of sickness, maternity and employment injury.

EMPLOYEE [SECTION 2(9)]

Means

Any person employed for wages in connection with the work of a factory or
establishment to which this Act applies and:

1) who is directly employed by the principal employer on any work of, or incidental or
preliminary to or connected with the work of the factory or establishment, whether
such work is done by employee in the factory or establishment; or elsewhere, or
2) who is employed by or through a immediate employer on the premises of the factory
or establishment or under the supervision of the principal employer or his agent, on
work which is ordinarily part of the work of the factory or establishment or which is
preliminary to the work carried on in or incidental to the purpose of the factory or
establishment; or

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 3) whose services are temporarily lent or let on hire to the principal employer by the
person with whom the person, whose services are Solent or let on hire, has entered
into a contract of service; and includes any person employed for wages on any work
connected with the administration of the factory or establishment or any part,
department or branch thereof, or with the purchase of raw materials of, or the
distribution or sale of the product of the factory or establishment; or any person
engaged as an apprentice, not being an apprentice engaged under Apprentices Act,
1961and includes such person engaged as apprentice whose training period is
extended to any length of time, ; but does not include:
o any member of the Indian Naval, Military or Air Forces; or
o any person so employed whose wages (excluding remuneration for overtime
work) exceed such wages as may be prescribed by the Central Government.

An employee whose wages (excluding remuneration for overtime work) exceed such
wages as may be prescribed by the Central Government at any time after (and not before) the
beginning of the contribution period shall continue to be an employee until the end of that
period. The Central Government has since prescribed by a Notification under Rule50 of the
E.S.I. Rules, 1950 the wage limit for coverage of an employee under Section 2(9) of the Act
as Rs. 10,000 per month. Further, it is provided that an employee whose wages (excluding
remuneration for overtime work) exceed Rs. 10,000 a month at any time after and not before
the beginning of the contribution period, shall continue to be an employee until the end of the
period.

Case: - Royal Talkies Hyderabad v. E.S.I.C

There was a canteen and cycle stand run by private contractors in a theatre premises.
On the question of whether the theatre owner will be liable as principal employer for the
payment of E.S.I. contributions, the Supreme Court held that the two operations namely
keeping a cycle stand and running a canteen are incidental or adjuncts to the primary purpose
of the theatre and the workers engaged therein are covered by the definition of employee as
given in E.S.I. Act.

The Supreme Court observed that the reach and range of Section 2(9) is apparently
wide and deliberately transcends pure contractual relationship.

Section 2(9) contains two substantive parts. Unless the person employed qualifies
under both, he is not an employee. First, he must be employed in or in connection with the

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work of an establishment. The expression in connection with the work of an establishment
ropes in a wide variety of workmen who may not be employed in the establishment but may
be engaged only in connection with the work of establishment. Some nexus must exist
between the establishment and the work of employee but it may be a loose connection. The
test of payment of salary or wages is not a relevant consideration. It is enough if the
employee does some work which is ancillary, incidental or has relevance to or link with the
object of the establishment.

The word employee would include not only persons employed in a factory but also
persons connected with the work of the factory. It is not possible to accept the restricted
interpretation of the words “employees in factories”.

Case:-Hyderabad Asbestos Cement Products, etc. v. ESIC

The persons employed in zone offices and branch offices of a factory and concerned
with the administrative work or the work of canvassing sale would be covered by the
provisions of the Act, even though the offices are located in different towns.

The Act is a beneficial piece of legislation to protect interest of the workers. The
employer cannot be allowed to circumvent the Act in the disguise of ambiguous designations
such as ‘trainees, ‘apprentices etc. who are paid regular wages, basic wages plus allowances.
Such workers also fall under the Act.

Case: - ESIC v. Apex Engg. Pvt. Ltd.,

Managing director could be an employee of the company. There could be dual

capacity i.e. as managing director as well as a servant of the company.

EXEMPTED EMPLOYEE [SECTION 2(10)]

Means an employee who is not liable under this Act to pay the employees
contribution

PRINCIPAL EMPLOYER [SECTION 2(17)]

 in a factory, owner or occupier of the factory and includes the managing agent of such
owner or occupier, the legal representative of a deceased owner or occupier and where
a person has been named as the manager of the factory under the Factories Act, 1948,
the person so named;

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  In any establishment under the control of any department of any Government in India,
the authority appointed by such Government in this behalf or where no authority is so
appointed the head of the Department.
 In any other establishment, any person responsible for the supervision and control of
the establishment.

FAMILY [SECTION 2(11)]

 Means all or any of the following relatives of an insured person, namely:

 a spouse;
 a minor legitimate or adopted child dependent upon the insured person;
 a child who is wholly dependent on the earnings of the insured person and who is:
 receiving education, till he or she attains the age of twenty-one years,
 an unmarried daughter;
 a child who is infirm by reason of any physical or mental abnormality or injury and is
wholly dependent on the earnings of the insured person, so long as the infirmity
continues.
 Dependant parents whose income from all sources does not exceed such income as
may be prescribed by the Central Government.
 In case the insured person is unmarried and his or her parents are not alive, a minor
brother or sister wholly dependent upon the earnings of the insured person

FACTORY [SECTION 2(12)]

Means

 any premises including the precincts thereof whereon ten or more persons are
employed or were employed on any day of the preceding twelve months, and in any
part of which a manufacturing process is being carried on or is ordinarily so carried
on, but does not including a mine subject to the operation of the Mines Act, 1952 or a
railway running shed.
 Terms manufacturing process, occupier and power, shall have the meaning assigned
to them in the Factories Act, 1948.

IMMEDIATE EMPLOYER [SECTION 2(13A)]

Means

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  a person, in relation to employees employed by or through him, who has undertaken
the execution on the premises of a factory or an establishment to which this Act
applies or under the supervision of principal employer or his agent, of the whole or
any part of any work which is ordinarily part of the work of the factory or
establishment of the principal employer or is preliminary to the work carried on, in or
incidental to the purpose of any such factory or establishment,
 And includes a person by whom the services of an employee who has entered into a
contract of service with him are temporarily lent or let on hire to the principal
employer and includes a contractor.
 It would not be necessary that the work undertaken by immediate employer should be
in the premises where the factory of principal employer is situated.

INSURABLE EMPLOYMENT [SECTION 2(13A)]

It means an employment in factory or establishment to which the Act applies.

INSURED PERSON [SECTION 2(14)]

It means a person who is or was an employee in respect of whom contributions are, or
were payable under the Act and who is by reason thereof entitled to any of the benefits
provided under the Act.

PERMANENT PARTIAL DISABLEMENT [SECTION 2(15A)]

 It means such disablement of a permanent nature, as reduced the earning capacity of
an employee in every employment which he was capable of undertaking at the time of
the accident resulting in the disablement:
 Every injury specified in Part II of the Second Schedule to the Act shall be deemed to
result in permanent partial disablement.

PERMANENT TOTAL DISABLEMENT [SECTION 2(15B)]

 It means such disablement of a permanent nature as incapacitates an employee for all

work which he was capable of performing at the time of the accident resulting in such
disablement:
 Permanent total disablement shall be deemed to result from every injury specified in
Part-I of the Second Schedule to the Act or from any combination of injuries specified
in Part-II thereof, where the aggregate percentage of the loss of earning capacity, as
specified in the said Part-II against those injuries, amounts to 100% or more.

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SEASONAL FACTORY [SECTION 2(19A)]
Means

 a factory which is exclusively engaged in one or more of the following manufacturing

processes namely, cotton ginning, cotton or jute pressing, decortications of
groundnuts, the manufacture of coffee, indigo, rubber, sugar or tea or any
manufacturing process which is incidental to or connected with any of the aforesaid
processes
 and includes
 a factory which is engaged for a period not exceeding seven months in a year:
 in any process of blending, packing or repacking of tea or coffee; or
 in such other manufacturing process as the Central Government may by
notification in the Official Gazette, specify.

SICKNESS [SECTION 2(20)]

It means a condition which requires medical treatment and attendance and
necessitates abstention from work on medical grounds.

TEMPORARY DISABLEMENT [SECTION 2(21)]

It means a condition resulting from an employment injury which requires medical
treatment and renders an employee as a result of such injury, temporarily incapable of doing
the work which he was doing prior to or at the time of injury.

WAGES [SECTION 2(22)]

Means

All remuneration paid or payable in cash to an employee if the terms of the contract of
employment, express or implied, were fulfilled and includes any payment to an employee in
respect of any period of authorized leave, lock-out, strike which is not illegal or lay-off and
other additional remuneration if any, paid at intervals not exceeding two months but does not
include:

 any contribution paid by the employer to any pension fund or provident fund,
or under this Act;
 any travelling allowance or the value of any travelling concession;

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  any sum paid to the person employed to defray special expenses entailed on
him by the nature of his employment, or
 any gratuity payable on discharge.

Wages include other

 Additional remuneration paid at intervals not exceeding two months wages.

Case:-Handloom House Ernakulam v. Reg. Director, ESIC

It is question of fact in each case whether sales commission and incentive are payable at
intervals not exceeding two months.

Case:-S. Ganesan v. The Regional Director, ESI Corporation, Madras

Travelling allowance paid to employees is to defray special expenses entitled on him

by nature of his employment. It does not form part of wages as defined under Section 2(22)
of the E.S.I. Act. Therefore, employer is not liable to pay contribution on travelling
allowance.

REGISTRATION OF FACTORIES AND ESTABLISHMENTS UNDER

THIS ACT [SECTION 2A]
Every factory or establishment to which this Act applies shall be registered within
such time and in such manner as may be specified in the regulations made in this behalf.

EMPLOYEES’ STATE INSURANCE [SECTION 38]

 The Act makes compulsory that subject to the provisions of the Act all the employees
in factories or establishments to which this Act applies shall be insured in the manner
provided by this Act.
 Such insured persons shall pay contributions towards Insurance Fund through their
employers who will also pay their own contribution. Such insured persons are entitled
to get certain benefits from that fund which shall be administered by the Corporation.
Any dispute will be settled by the Employees’ Insurance Court.

ADMINISTRATION OF EMPLOYEES’ STATE INSURANCE SCHEME

 For the administration of the scheme of Employees’ State Insurance in accordance
with the provisions of this Act, the Employees’ State Insurance Corporation Standing
Committee and Medical Benefit Council have been constituted.

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  ESI Fund has been created which is held and administered by ESI Corporation
through its executive committee called Standing Committee with the assistance,
advice and expertise of Medical Council, etc. and Regional and Local Boards and
Committees.

EMPLOYEES’ STATE INSURANCE CORPORATION [SECTION 3]

The establishment of Employees’ State Insurance Corporation by the Central
Government for administration of the Employees’ State Insurance Scheme in accordance
with the provisions of Act. Such Corporation shall be body corporate having perpetual
succession and a common seal and shall sue and be sued by the said name.

CONSTITUTION [SECTION 4]
The Central Government appoints

 a chairman, a vice-chairman and other members representing interests of employers,

employees, state governments/union territories and medical profession.
 Three members of the Parliament and the Director General of the Corporation are its
ex-officio members.

POWERS AND DUTIES OF THE CORPORATION

Section 19 - Empowers the Corporation, to promote measures for the improvement of
the health and welfare of insured persons and for the rehabilitation and reemployment of
insured persons who have been disabled or injured and incur in respect of such measures
expenditure from the funds of the Corporation within such limits as may be prescribed by the
Central Government.

SECTION 29 - EMPOWERS THE CORPORATION

 to acquire and hold property both movable and immovable,

 sell or
 otherwise transfer the said property;
 it can invest and reinvest any moneys which are not immediately required for
expenses and or realise such investments;
 it can raise loans and discharge such loans with the previous sanction of Central
Government;

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  it may constitute for the benefit of its staff or any class of them such provident or
other benefit fund as it may think fit. However, the powers under Section 29 can be
exercised subject to such conditions as may be prescribed by the Central Government.

APPOINTMENT OF REGIONAL BOARDS (SECTION 25)

The Corporation may appoint Regional Boards, Local Committees and Regional and
Local Medical Benefit Councils in such areas and in such manner, and delegate to them such
powers and functions, as may be provided by the regulations.

Wings of the Corporation

The Corporation to discharge its functions efficiently has been provided with two
wings:

STANDING COMMITTEE [SECTION 8]

The Act provides for the constitution of a Standing Committee amongst its members.

POWER OF THE STANDING COMMITTEE

 The Standing Committee has to administer affairs of the Corporation and may
exercise any of the powers and perform any of the functions of the Corporation
subject to the general superintendence and control of the Corporation.
 The standing Committee acts as an executive body for administration of Employees
State Insurance Corporation

MEDICAL BENEFIT COUNCIL [SECTION 10]

Empowers the Central Government to constitute a Medical Benefit Council Section 22
determines the duties of the Medical Benefit Council stating that the Council shall:

 advise the Corporation and the Standing Committee on matters relating to

administration of medical benefit, the certification for purposes of the grant of benefit
and other connected matters;
 have such powers and duties of investigation as may be prescribed in relation to
complaints against medical practitioners in connection with medical treatment and
attendance; and
 Perform such other duties in connection with medical treatment and attendance as
may be specified in the regulations.

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EMPLOYEES’ STATE INSURANCE FUND

CREATION OF FUND [SECTION 26]

 The Act provides that all contributions paid under this Act and all other moneys
received on behalf of the Corporation shall be paid into a Fund called the Employees’
State Insurance Fund which shall be held and administered by the Corporation for the
purposes of this Act.
 The Corporation may accept grants, gifts, donations from the Central or State
Governments, local authority, or any individual or body whether incorporated or not,
for all, or any of the purposes of this Act.
 A Bank account in the name of Employees’ State Insurance Fund shall be opened
with the Reserve Bank of India or any other Bank approved by the Central
Government.
 Such account shall be operated on by such officers who are authorised by the
Standing Committee with the approval of the Corporation.

PURPOSES FOR WHICH THE FUND MAY BE EXPENDED [SECTION

28]
Fund shall be expended only for the following purposes:

 payment of benefits and provisions of medical treatment and attendance to insured

persons and, where the medical benefit is extended to their families, in accordance
with the provisions of this Act and defraying the charge, and costs in connection
therewith;
 payment of fees and allowances to members of the Corporation, the Standing
Committee and Medical Benefit Council, the Regional Boards, Local Committees and
Regional and Local Medical Benefit Councils;
 payment of salaries, leave and joining time allowances, travelling and compensatory
allowances, gratuities and compassionate allowances, pensions, contributions to
provident or other benefit fund of officers and servants of the Corporation and
meeting the expenditure in respect of officers and other services set up for the purpose
of giving effect to the provisions of this Act;

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  establishment and maintenance of hospitals, dispensaries and other institutions and
the provisions of medical and other ancillary services for the benefit of insured
persons and where the medical benefit is extended to their families, their families;
 payment of contribution to any State Government, local authority or any private body
or individual towards the cost of medical treatment and attendance provided to
insured persons and where the medical benefit is extended to their families, their
families including the cost of any building and equipment, in accordance with any
agreement entered into by the Corporation;
 defraying the cost (including all expenses) of auditing the accounts of the Corporation
and of the valuation of the assets and liabilities;
 defraying the cost (including all expenses) of Employees Insurance Courts set up
under this Act;
 payment of any sums under any contract entered into for the purposes of this Act by
the Corporation or the Standing Committee or by any officer duly authorised by the
Corporation or the Standing Committee in that behalf;
 payment of sums under any decree, order or award, of any court or tribunal against
the Corporation or any of its officers or servants for any act done in execution of his
duty or under a compromise or settlement of any suit or any other legal proceedings
or claims instituted or made against the Corporation;
 defraying the cost and other charges of instituting or defending any civil or criminal
proceedings arising out of any action taken under this Act;
 defraying expenditure within the limits prescribed, on measure for the improvement
of the health and welfare of insured persons and for the rehabilitation and re-
employment of insured persons who have been disabled or injured; and
 Such other purposes as may be authorised by the Corporation with the previous
approval of the Central Government.

CONTRIBUTIONS [SECTION 40]

 The contributions have to be paid at such rates as may be prescribed by the Central
Government.
 The present rates of contribution are 4.75 percent and 1.75 percent of workers wages
by employers and employees respectively.
 The wage period in relation to an employee shall be the unit in respect of which all
contributions shall be payable. The contributions payable in respect of each wage

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 period shall ordinarily fall due on the last day of the wage period and where an
employee is employed for part of the wage period, or is employed under two or more
employers during the same wage period, the contributions shall fall due on such days
as may be specified in the regulations.
 Principal employer to pay contributions in the first instance
 It is incumbent upon the principal employer to pay in respect of every employee
whether directly employed by him or by or through an immediate employer, both the
employer’s contributions and the employee’s contribution.
 However, he can recover from the employee (not being an exempted employee) the
employees contribution by deduction from his wages and not otherwise.
 The principal employer has to bear the expenses of remitting the contributions to that
Corporation.
 According to Section 39(5) of the Act, if any contribution payable is not paid by the
principal employer on the date on which such contribution has become due, he shall
be liable to pay simple interest at the rate of 12% per annum or at such higher rate as
maybe specified in the regulations, till the date of its actual payment.
 Higher interest specified in the regulations should not exceed the lending rate of
interest charged by any scheduled bank. It may be noted that any interest recoverable
as stated above may be recovered as an arrear of land revenue or under newly
introduced Sections 45-C to 45-I of the Act.

RECOVERY OF CONTRIBUTION FROM IMMEDIATE EMPLOYER

[SECTION 41]

Principal employer who has paid contribution in respect of an employee employed by

or through an immediate employer is entitled to recover the amount of contribution so paid
(both employers and employees contribution) from the immediate employer either by
deduction from any amount payable to him by the principal employer under any contract or
as a debt payable by the immediate employer.

However the immediate employer is entitled to recover the employees’ contribution

from the employee employed by or through him by deduction from wages and not otherwise.

The immediate employer is required to maintain a register of employees employed by

or through him as provided in the Regulations and submit the same to the principal employer

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before the settlement of any amount payable. He is not required to have separate account with
ESI.

METHOD OF PAYMENT OF CONTRIBUTION [SECTION 43]

The Corporation to make regulations for payment and collection of contribution payable
under this Act and such regulations may provide for:

 the manner and time for payment of contribution;

 the payment of contributions by means of adhesive or other stamps affixed to or
impressed upon books, cards or otherwise and regulating the manner, times and
conditions in, at and under which, such stamps are to be affixed or impressed;
 the date by which evidence of contributions having been paid is to be received by the
Corporation;
 the entry in or upon books or cards or particulars of contribution paid and benefits
distributed in the case of the insured persons to whom such books or card relate; and
 The issue, sale, custody, production, inspection and delivery of books or cards and the
replacement of books or cards which have been, lost, destroyed or defaced.

BENEFITS [SECTION 46]

The insured persons, their dependants are entitled to the following benefits on prescribed
scale:

 periodical payments in case of sickness certified by medical practitioner;

 periodical payments to an insured workman in case of
 confinement or miscarriage or sickness arising out of pregnancy, confinement;
 periodical payment to an insured person suffering from disablement as a result of
employment injury;
 periodical payment to dependants of insured person;
 medical treatment and attendance on insured person;
 Payment of funeral expenses on the death of insured person at the prescribed rate of.

GENERAL PROVISIONS RELATING TO BENEFITS

 Right to receive benefits is not transferable or assignable. When aperson receives
benefits under this Act, he is not entitled to receive benefits under any other
enactment.

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  An insured person is not entitled to receive for the same period more than one benefit,
e.g. benefit of sickness cannot be combined with benefit of maternity or disablement,
etc.

TYPES OF BENEFITS UNDER THE ACT

The act provides for six types of benefit to insured workmen: A) Sickness benefit B)
Maternity benefits C) Disablement benefit D) Dependent's benefit E) Medical benefit F)
Funeral benefit. Benefits are receivable during the benefit period, which is defined as follows.
Benefit period means such period, being not less than 25 but not more than 27 consecutive
weeks or 6 consecutive months corresponding period as may be specified in the regulation
framed under the act. For the first benefit period a shorter or longer period may be fixed.

1. SICKNESS BENEFIT
Sickness benefit represents periodical payments made to an insured person for the
period of certified sickness after completing nine months insurable employment. To quality
for this benefits contribution should have been paid for at least 78 days in the relevant
contribution period. The maximum duration for availing sickness benefit is 91 days in two
consecutive benefit periods. There is waiting period of 2 days which I waived if the insured
person is certified sic within 15 days of the last spell for which sickness benefit period was
last paid. The daily rate of sickness benefit in respect of a person during any benefit period
shall be 20 percent more than “Standard benefit rate”

2. MATERNITY BENEFIT
Maternity benefit implies cash payment to an insured woman in case of confinement
or miscarriage or sickness arising out of pregnancy, premature birth of child as certified by a
duly appointed medical officer or midwife. For entitlement to maternity benefit, the insured
woman should have contributed for not less than 70 days in the immediately preceding two
consecutives contribution periods corresponding to the benefit period in which the
confinement occurs or is expected to occur. The daily rate of benefit doubles the standard
sickness benefit rate i.e full wages. Maternity benefit is normally payable for a maximum
period of 12 weeks in case of confinement, 6weeks in case of miscarriage or medical
termination of pregnancy which can be extended up to one additional month in case of
sickness arising out of confinement and duly certified by an authorized medical officer.
Maternity benefit continues to be payable even in the event of the death of an insured woman,

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during her confinement, or during the period of 6 weeks immediately following her
confinement leaving behind a child for the whole of that period , and in case the child also
dies, during the said period, until the death of the child.

3. DISABLEMENT BENEFIT
In case of temporary disability arising out of an employment injury, disablement benefit
is admissible to an insured person for the entire period so certified by an insurance medical
officer/ practitioner for which the insured person does not work for wages. The benefit is not
subject to any contributory condition and is payable at the daily rate of 15 percent more than
the standard benefit rate. The benefit is, however, not payable if the incapacity is less than 3
days excluding the rate date of accident.

4. DEPENDENT’S BENEFIT
Periodical pension is paid to the dependent of a deceased insured person where death
occurs as a result of an employment injury or occupational diseases. The daily rate of
dependents shall be 15 percent more than the standard benefit rate. The widow receives
monthly pension for life or until remarriage, at a fixed rate equivalent to 3/5th of the
disablement benefit rate and each dependent child is paid an amount equivalent 2/5th thereof
until he/she attains 18 years of ages, provide that, in case of infirmity, the benefit continues to
be paid till infirmity.

However, it is subject to the condition that the total dependents’ benefit distributed among
the widow and legitimate or adopted children of the deceased insured persons, does not
exceed, at any time, the full rate of disablement benefit. In case it exceeds the given ceiling;
the share of each of the dependents is, proportionately reduced. The benefit is not payable to
married daughter.

In case the insured person does not leave behind any widow or child, the benefit is
payable to other dependents including parents.

5. MEDICAL BENEFIT
An insured person and his family member become entitled to medical care from the date
he enters the insurable employment and the entitlement continues as long as the insured
person is in insurable employment or is qualified to claim sickness, maternity, or disablement
benefit. The entitlement to medical care is extended up to two years to persons suffering from
any specified chronic or long-term diseases. Medical treatment to persons, who go out of

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coverage during the period of treatment, is not discontinued till the spell of sickness ends. All
insured persons and member of there are entitled to free, full and comprehensive medical care
under the scheme. The package covers all aspects of health care from comprehensive medical
care facilities, such as

I. Out- patient treatment.

II. X- ray and laboratory investigation.

III. Ambulance service or conveyance.

IV. Family welfare services and other national health programme services.

V. Medical certification and

VI. Special provision including super-specialty treatment

6. FUNERAL BENEFIT:
Funeral expenses are in the nature of a lump sum payment up to three thousand rupees
made to defray the expenditure of the funeral of deceased insured person. The amount is paid
either to the eldest surviving member of the family or, in his absence, to the person who
actually incurs the expenditure on the funeral

EMPLOYEES’ INSURANCE COURT (E.I. COURT)

CONSTITUTION [SECTION 74]

 The State Government shall by notification in the Official Gazette constitute an
Employees’ Insurance Court for such local area as may be specified in the
notification.
 The Court shall consist of such number of judges as the State Government may think
fit. Any person who is or has been judicial officer or is a legal practitioner of 5 years
standing shall be qualified to be a judge of E.I. Court.
 The State Government may appoint the same Court for two or more local areas or two
or more Courts for the same local area and may regulate the distribution of business
between them.

MATTERS TO BE DECIDED BY E.I. COURT

ADJUDICATION OF DISPUTES

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 The Employees’ Insurance Court has jurisdiction to adjudicate disputes, namely,
whether any person is an employee under the Act, rate of wages/contribution, as to who is or
was the principal employer, right of a person to any benefit under the Act.

ADJUDICATION OF CLAIMS
 The EI Court also has jurisdiction to decide claims for recovery of contribution from
principal employer or immediate employer, action for failure or negligence to pay
contribution, claim for recovery of any benefit admissible under the Act.
 Proceedings in both the above cases can be initiated by filing application in the
prescribed form by the employee or his dependent or employer or the corporation
depending who has cause of action.
 No Civil Court has power to decide the matters falling within the purview/
jurisdiction of E.I. Court.

EXEMPTIONS
 The appropriate Government may exempt any factory/establishment from the purview
of this Act, as well as any person or class of persons employed in any
factory/establishment, provided the employees employed therein are in receipt of
benefits superior to the benefits under the Act.
 Such exemption is initially given for one year and may be extended from time to time.
 The applicant has to submit application justifying exemption with full details and
satisfy the concerned Government.

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 UNIT – IV

THE MATERNITY BENEFIT ACT 1961

INTRODUCTION:

Women at the reproductive stage are exposed to special risks during pregnancy and
child bearing, and maternal morbidity and mortality are factors which require special
consideration. The Act was passed to regulate the employment of women in certain
establishment for certain periods before and after child-birth and to provide for maternity
benefit and certain other benefits. It extends to the whole of India [Sec 1(2)]. The latest
amendment to the Act was made in 1988. The Amendment Act of 1988 came into force with
effect from january10, 1989.

SCOPE AND COVERAGE OF THE ACT (SEC.2)

The Act applies, in the first instance—

a. To every establishment being a factory, mine or plantation including any such

establishment belonging to Government and to every establishment wherein
persons are employed for the exhibition of equestrian, acrobatic and other
performances.
b. To every shop or establishment within the meaning of any law for the time
being in force in employees, on any day of the preceding 12 months.

The Act prohibits the working of pregnant women for a specified period before and
after delivery. It also provides for maternity leave and payment of certain monetary benefits
to be paid to woman employees during the period when they are out of employment on
account of their pregnancy. Further, the service of a woman employee cannot be terminated
during the period of her absence on account of pregnancy, except for gross misconduct.

SALIENT FEATURES OF THE MATERNITY BENEFIT

(AMENDMENT) BILL, 2016 ARE:-

1. Duration of maternity leave: The 1961 Act states that every woman will be entitled
to maternity benefit of 12 weeks. The 2016 Bill will increase this to 26 weeks.

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2. Maternity benefit prior to expected delivery: Under the 1961 Act, this
maternity benefit should not be availed before 6 weeks from the date of expected delivery.
The 2016 Bill changes this to 8 weeks.

3. Maternity benefit for a woman having two or more children: If a woman

has two or more children, the maternity benefit will continue to be 12 weeks, which cannot be
availed before 6 weeks from the date of the expected delivery.

4. Maternity benefit to adopting mother and commissioning mother: As per

the 2016 Bill a woman who legally adopts a child below the age of three months or a
commissioning mother shall be entitled to maternity benefit for a period of 12 weeks from the
date the child is handed over to the adopting mother or the commissioning mother.

5. Provision for Crèche facility: The 2016 Bill introduces a provision which requires
every establishment with 50 or more employees to provide crèche facilities within a
prescribed distance. The woman will be allowed four visits to the crèche in a day. This will
include the interval of rest allowed to her.

6. Option to Work from Home: The 2016 Bill introduces a provision that states that
an employer may permit a woman to work from home. This would apply if the nature of
work assigned to the woman permits her to work from home. This option can be availed of,
after the period of maternity leave, for a duration that is mutually decided by the employer
and the woman.

7. Informing women employees of the right to maternity leave: The 2016 Bill
introduces a provision which requires every establishment to intimate a woman at the time of
her appointment of the maternity benefits available to her. Such communication must be in
writing and electronically

IMPORTANT POINTS ABOUT MATERNITY LEAVE IN INDIA

If you are a pregnant working female, you must be searching for a complete guide of
the Maternity Benefit Act 2016. Before applying for leave, you must be aware of many
important points to avail the services. It does not matter if you are working in a private or a
government company; you are entitled to a paid maternity leave of 26 weeks. Below are the
complete details about maternity leave rules in India:

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ELIGIBILITY FOR MATERNITY LEAVE IN INDIA
You must have been working as an employee in the organization for at least 80 days
in the past 12 months.

Every company which has more than 10 employees comes under this rule and are
supposed to provide maternity benefits to the pregnant working women.

You can avail the benefits only for the first two children. The usual 12 weeks paid
maternity leave is applicable for the third or later child.

The managers should be informed within 12 to 15 weeks of conception to avail

maternity leave benefits.

You should not be pregnant at the time of joining the services, giving maternity
benefits in such cases depends on the decision of the organization.

MATERNITY BENEFIT RULES

An increment in the duration of paid maternity leaves: As per the new

Maternity Benefit Act 2016, the pregnant working woman is entitled to 26 weeks paid
maternity leave. The lady can avail maternity leave for a period of extending up to a
maximum of 8 weeks before the expected delivery date and approximately 18 weeks after the
childbirth. However, it completely depends on the choice of the woman and circumstances.

Work from home option: Under this new rule, a new “work from home option” has
been introduced. It enables the woman to work from home after the approximate 26 week’s
leave period. But, it is available only after having mutual consent with the employer. If the
employer does not agree, you may have to return to work after availing maternity leaves.

Crèche facility: After the enactment of the Maternity Benefit Act 2016, every
organization that has more than 50 employees is to provide crèches facility within a
prescribed distance. The mother will be allowed to visit crèche four times a day to look after
the child.

Maternity leave in India for adoptive and commissioning mothers: If you are
an adopting mother and the age of the child is less than 3 months, you are entitled to take 12
weeks paid maternity leave. If you are planning to have your baby through surrogacy, the
doctor will need to plant your egg into another woman. In this case, you are the
commissioning mother and eligible for 12weeks paid leave.

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Awareness about Maternity Benefits: It is the responsibility of the organization to
spread awareness about maternity benefits. Every female in the organization should be
informed through written, electronic or digital mode. There should be clear transparency
around this.

Employment of, or work by women, prohibited during certain periods

(Sec.4): An employer is prohibited from knowingly employing any women in any
establishment during the 6 weeks immediately following the day of her delivery or her
miscarriage. Likewise, a woman is prohibited from working in any establishment during this
period of 6 weeks. Further, if a pregnant woman makes a request, she shall not be given any
work of the following nature during the specified period:

1. Any work which is of arduous nature.

2. Any work which involves long hours of standing.

3. Any work which in any way is likely to interfere with her pregnancy or the normal
development of foetus or is likely to cause her miscarriage or otherwise adversely affect her
health.

The specified period shall be—

(a) The period of 1 month immediately preceding the period of 6 weeks before the
date of her expected delivery; or

(b) Any period during the said period of 6 weeks for which the pregnant woman does
not avail of the leave of absence under sec.6.

RIGHT TO PAYMENT OF MATERNITY BENEFIT (SEC. 5)

Subject to the provision of the Act, every woman shall be entitled to, and her
Employer shall be liable for, the payment of maternity benefit. Maternity benefit is a payment
to a woman at the rate of the average daily wage for the period of her actual absence, that is
to say, the period immediately proceeding the day of her delivery and any period immediately
following that day.

Average daily wage: It means the average of the woman’s wages payable to her for the
days on which she has worked during the period of 3 calendar months immediately preceding
the date from which she absents herself on account of maternity, the minimum rate of wage
fixed or revised under the Minimum Wages Act, 1948, or Rs.10, whichever is the highest.

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CONDITIONS FOR PAYMENT OF MATERNITY BENEFIT:

The following conditions must be fulfilled before maternity benefit becomes payable
to a woman employee in an establishment.

1. Work for not less than 80 days to have been put in: The woman must have
actually worked in an establishment of the employer from whom she claims maternity benefit
for a period of not less than 80 days in the 12 months immediately preceding the date of her
expected delivery.

2. Maternity benefit for a maximum period of 12 weeks: The maximum period

for which the woman shall be entitled to maternity benefit shall be 12 weeks of which not
more than 6 weeks shall precede the date of her expected delivery.

3. Death: If the woman does during this period of 12 weeks, the maternity benefit shall be
payable only for the days up to and including the day of her death. Where the woman delivers
a child, then dies during her delivery or during the period immediately following the date of
her delivery for which she is entitled for the maternity benefit, leaving behind the child, the
employer shall be liable for payment of maternity benefit for that entire period. If the child
also dies during the said period, the employer shall be liable for the payment of maternity
benefit for the days up to and including the date of the death of the child.

NOTICE OF CLAIM FOR MATERNITY BENEFIT AND PAYMENT

THEREOF (SEC.6)

Any woman employed in an establishment and entitled to maternity benefit under the
provisions of the Act may give notice to her employer. The notice shall be in writing and in
the prescribed form. It shall also state that she will not work in any establishment during the
period of which she receives maternity benefit. In the case of a woman who is pregnant, the
notice shall state the date from which she will be absent from work. This date will not be
earlier than 6 weeks from which she will be absent from work. This date will not be earlier
than 6 weeks from the date of her expected delivery. If she has not given the notice when she
was pregnant, she may give such notice as soon as possible after the delivery.

Permission for absence: On receipt of the notice, the employer shall permit the woman
to absent herself from the establishment during the period for which she receives the
maternity benefit.

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PAYMENT OF MATERNITY BENEFIT IN CASE OF DEATH OF A
WOMAN (SEC.7)

If a woman entitled to maternity benefit or any other amount dies receiving the
maternity benefit or the amount, or where the employer is liable for maternity benefit after
the death of the woman, the employer shall pay such benefit or amount to the person
nominated by the woman in the notice given under sec.6. In case there is not such nominee,
the maternity benefit will be paid to her legal representative.

PAYMENT OF MATERNITY BENEFIT IN CERTAIN CASES (SEC 5-B)

Every woman—

(a) Who is employed in a factory or other establishment to which the provisions of the
Employees State Insurance Act, 1948 apply;

(b) Whose wages (excluding remuneration for overtime work) for a month exceed
Rs.1.600; and

(c) Who has worked for not less than 80 days in the 12 months immediately the date
of her expected delivery;

NO DEDUCTION OF WAGES IN CERTAQIN CASES (SEC.13)

No deduction from the normal and usual daily wages of a woman entitled to maternity
benefit under the provisions of the Act shall be made for the reason that—

(a) The nature of work assigned to her of arduous nature, or that the pregnant woman
has been different nature of work, or

(b) Specified breaks for nursing the child are allowed to her.

MEDICAL BONUS (SEC.8)

Every woman entitled to maternity benefit under the Act shall also be entitled to
receive from her employer a medical bonus of Rs.250 if no pre-natal confinement and post-
natal care is provided for by the employer free of charge.

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LEAVE FOR MISCARRIAGE (SEC.9)
In case of miscarriage, a woman shall, on production of the prescribed proof, be
entitled to leave with wages at the rate of maternity benefit, for a period of 6 weeks
immediately following the day of her miscarriage.

OTHER LEAVE (SEC.10)

A woman suffering from illness arising out of pregnancy, delivery, premature birth of
a child or miscarriage shall, on production of the prescribed proof, be entitled to leave with
wages at the rate of maternity benefit for a maximum period of 1 month. This leave is in
addition to the period of absence allowed to her under Sec. 6 or under Sec.9.

NURSING BREAKS (SEC.11)

Where a woman, after having delivered a child, returns to duty after such delivery,
she shall be allowed in the course of her daily work 2 breaks of the prescribed duration for
nursing the child until the child attains the age of 15 months. These nursing breaks shall be in
addition to the interval for rest allowed to her.

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 THE EMPLOYEES’ PROVIDENT FUNDS AND MISCELLANEOUS
PROVISIONS ACT, 1952

INTRODUCTION

Provident fund is a welfare scheme for the benefits of the employees. Under this
scheme both the employee & employer contribute their part but whole of the amount is
deposited by the employer. Employer deducted the employee share from the salary of the
employee. The interest earned on this investment is also credited in pf account of the
employees. At the time of retirement, the accumulated amount is given to the employees, if
certain conditions are satisfied.

The schemes of provident funds, as a social measure, are meant to include employees
to save a portion from their present earnings for a rainy day.

SCOPE AND OBJECT OF THE ACT

The Act and Employees Provident Funds Scheme were brought into force from
November, 1952. Initially the Act applied to industries engaged in the manufacture of
cement, cigarettes, electrical, mechanical or general engineering products, iron and steel,
paper and textiles. Ordinarily factories and establishments employing 50 or more persons
were covered under the Act. The minimum limit for coverage under the Act was reduced to
20 or more persons with effect with from December 31, 1960. The membership of the
employees‟ provident fund scheme was initially restricted to employees whose monthly pay
did not exceed Rs.3000. This pay limit has been raised from time to time bearing in kind the
fall in the value of money due to inflation. The present limit is Rs.6, 500.

EMPLOYEES PROVIDENT FUND SCHEME (1952)

ESTABLISHMENT OF FUND (SEC.5)

Established the Employees Provident Fund in accordance with the provisions of the
Act and the Employees Provident Fund Scheme The fund shall vest in, and be administrated
by , the Central Board constituted under Sec. 5-A. Any of the provisions of the Employees
Provident Fund Scheme shall take effect either prospectively or retrospectively on such date
as may be specified in this behalf in the Scheme.

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CONTRIBUTION (SEC.6)
The object of the Act, as already seen, is to provide for the institution of the provident
funds for employees in factories and other establishments. The principle duty is laid upon the
employer to put the Employees Provident Fund and Family Pension Schemes into operation
and to make contributions of both their and employees share to the Funds and to deduct from
the wages of the employees their share.

The employers contribution to the Employees Provident Fund shall be 10 per cent of
the basic wages, dearness allowance and retaining allowance for the time being payable to
each of the employees.

If any employees so desires, his contribution may be an amount exceeding 10 Percent

of his basic wages, dearness allowance and retaining allowance, subject to the condition that
the employer shall not be under an obligation to pay any contribution over and above his
contribution payable under Sec.6.

EMPLOYEES’ PENSION SCHEME AND FUND (1995)

In exercise of the powers conferred by Sec. 6-A, the Central Government made the
Employees’ Pension Scheme, 1995, vide its notification dated 16thNovember, 1995. The
scheme came into force retrospectively on 16th day of November, 1995 Establishment of
Employees Pension Fund. The central government frame a scheme to be called the
Employees’ Pension Scheme for the purpose of providing for—

a. Superannuation pension or permanent total disablement pension to the

employees of any establishment or class of establishment to which this Act
applies;
b. Widows pension, children pension or orphan pension payable to the
beneficiaries of such employees.

EMPLOYEES’ DEPOSIT-LINKED INSURANCE SCHEME AND FUND

(1976)

FRAMING OF EMPLOYEES’ DEPOSIT- LINKED INSURANCE

SCHEME (SEC.6C)

The Central government may, by notification in the Official Gazette, frame a scheme
to be called the Employees‟ Deposit-linked Insurance Scheme for the purpose of providing

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life insurance benefits to the employees of any establishment or class of establishments to
which this Act applies.

ESTABLISHMENT OF EMPLOYEES’ DEPOSIT-LINKED

INSURANCE FUND
The employer shall pay into the Insurance Fund from time to time in respect of his
employees an amount not exceeding 1 per cent of the aggregate of the basic wages, dearness
allowance and retaining allowance as the Central Government may, by notification in the
Official Gazette, specify. He shall also pay into the Insurance Fund such further sum of
money, not exceeding 1/4th of the contribution which he is required to make as the Central
Government may, from time to time determine.

The Insurance Fund shall vest in the Central Board and be administered by it such
manner as may be specified in the Insurance Scheme. The Insurance Scheme may provide for
all or any of the matters specified in Schedule IV.

MODIFICATION OF SCHEME (SEC.7)

The Central Government may, by notification in the Official Gazette, add to, amend
or vary, either prospectively or retrospectively the Employees Provident Fund Scheme, the
Pension Scheme or the Employees Deposit-linked Insurance Scheme.

CLARIFICATION PERTAINING TO CONTRIBUTIONS

After revision in wage ceiling from Rs.5000 to Rs.6500 per month, the government
will continue to contribute 1.16 per cent into the actual wage or maximum Rs.6500 per month
towards Employees’ Pension Scheme. The employers share in the Pension Scheme will be
Rs.541, 1-6-2001.

Under Employees Deposit- Linked insurance Scheme the contribution 0.50 per cent is
required to be paid up to a maximum limit Rs.6500. The employer will pay administrative
charges 0.01 per cent on a maximum limit of Rs.6500.The employer also will pay
administrative charges 0.01 per cent on maximum limit of Rs.6500 whereas an exempted
establishment will pay inspection charges 0.005 per cent out of the total wages paid.

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 ADMINISTRATION OF THE SCHEMES

Central Board (Sec. 5-A):

A Board of trustees called the Central Board for administering the Employees
Provident Fund, Pension Fund and Employees Deposit-linked Insurance Fund established
under the schemes.

Executive Committee (Sec. 5-AA):

To assist the Central Board in the discharge of its functions, the Amendment Act of
1988 has made a provision for the setting up of an Executive Committee by introducing new
Sec. 5-AA to the Act.

State Board (Sec.5-B)

Any state a Board of Trustee called the State Board in consultation with that state
Government, by notification in the Official Gazette. The State Board shall exercise such
powers and perform such duties as the Central Government may assign to it from time to
time.

Appointment of Officers (Sec.5D)

Appointment of Central Provident Fund Commissioner, Appointment of a Financial
Advisor and Chief Accounts Officer, Appointment in consultation with the Union Public
Service Commission in some cases, Appointment of Additional Deputy Regional and
Assistant Provident Fund Commissioners.

APPELLATE TRIBUNAL

EMPLOYEES’ PROVIDENT FUNDS APPELLATE TRIBUNAL

Constitute one or more Appellate Tribunals to be known as the Employees, Provident
Funds Appellate Tribunal. The Tribunal shall exercise the powers and discharge the functions
conferred on it by this Act. Every such Tribunal shall have jurisdiction in respect of
establishments situated in such area as may be specified in the notification constituting the
Tribunal.

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RECOVERY OF MONEYS DUE FROM EMPLOYERS (SEC.8)
Any of the some amounts due from an employer in relation to an establishment to
which any Provident Fund Scheme or Employees‟ Deposit-linked Insurance Scheme applies,
may, if the amount is in arrears.

(a) Any contribution payable to the Employees‟ Provident Fund or, as the case may
be, the Employees‟ Deposit-linked Insurance Fund.

(b) Accumulations required to be transferred under Sec.15 or under Sec17.

(c) Damages recoverable under Sec.14-B

(d) Any charges payable by the employer under any of the provision of the Act or of
any provision of the Employees Provident Fund Scheme or the Employees Deposit-
linked Insurance scheme.

EMPLOYER NOT TO REDUCE WAGES (SEC.12)

The Provident Fund Scheme or Insurance Scheme reduces, whether directly or
indirectly, the wages of any employee to whom the Provident Fund Scheme or the Insurance
Scheme applies. He shall also not reduce the total quantum of benefits in the nature of old age
pension, gratuity or provident fund or life insurance to which the employee is entitled under
the terms of his employment, express or implied.

INSPECTORS (SEC.13)
The appropriate Government appoint such persons as it thinks fit to be Inspectors for
the purpose of the Act, the Employees Provident Fund Scheme, the Pension Scheme or the
Employees Deposit-linked Insurance Scheme. It may also define jurisdiction of the Inspectors

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 PAYMENT OF BONUS ACT, 1965
INTRODUCTION
Bonus is defined as something given in addition what is ordinarily received by or due
to the recipient. The main object of the payment of Bonus Act is to provide for the payment
of bonus to persons employed in certain establishments on the basis of profits or on the basis
of production or productivity and for matters connected therewith.

BONUS MEANING:

'Bonus' is a payment made by an employer to maintain the industrial harmony and to

give Philip to the employees to exert their utmost to keep up the industry active and aloft. The
concept of payment of bonus is not the product of any generosity of the employer but it is one
paid in the interest of industrial peace and to make available to every employee a living wage
which is generally more than the actual wages. Bonus is based on the ground that the
workman should have a share in the prosperity of the concern for which they have their
contribution

DEFINITION OF BONUS:
The term 'Bonus' is not defined anywhere under the Payment of Bonus Act, 1965.
According to Webster's dictionary, "bonus is something which is given in addition to the
wages". Bonus is paid in the terms of money to the employees as a gift or reward in addition
to their wages.

KINDS OF BONUS:
There are four kinds of bonus which are as follows -

(1) Production bonus: Production bonus depends upon the production in a particular
year

(2) Profit bonus: Profit bonus depends upon the extent of Profit obtained in the relevant
year.

(3) Customary bonus: Customary bonus is a voluntary payment made by the employer
to his employees to meet special expenses of a festival. (For Example - Bonus of Diwali
Festival)

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(4) Bonus as an implied term of the contract: This type of Bonus may be claimed
as a matter of right. This right based on an implied agreement between the employer and the
employees.

OBJECT AND SCOPE OF THE ACT

The object of the Act is to provide for the payment of bonus to persons employed in
certain establishments and for matters connected therewith.

Case:-Jalan Trading Co. (Pvt.) Ltd. v. Mill Mazdor Sabha

In this case Shah J. observed that the “object of the Act being to maintain peace and
harmony between labour and capital by allowing the employees to share the prosperity of the
establishment and prescribing the maximum and minimum rates of bonus together with the
scheme of “set-off” and “set on” not only secures the right of labour to share in the profits but
also ensures a reasonable degree of uniformity”.

Case: - Kamgar Sabha v. Abdulbhai Faizullabhai

 In this case the Supreme Court observed that “bonus” is a word of many generous
connotations.
 There is profit based bonus which is one specific kind of claim and perhaps the most
common.
 There is customary or traditional bonus which has its emergence from long.
 There is attendance bonus.
 The Bonus Act speak and speaks as a whole Code on the sole subject of profit based
bonus but is silent and cannot, therefore, annihilate by implication, other distinct and
different kinds of bonuses, such as the one oriented on custom.
 The Bonus Act, 1965 as it then stood does not bar claims to customary bonus or those
based on conditions of service.
 Held, a discerning and concrete analysis of the scheme of the Bonus Act and
reasoning of the Court leaves no doubt that the Act leaves untouched customary
bonus.

Case:-Hukamchand Jute Mills Limited v. Second Industrial Tribunal

The provisions of the Act have no say on customary bonus and cannot, therefore, be
inconsistent therewith. Conceptually, statutory bonus and customary bonus operate in two
fields and do not clash with each other.

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APPLICABILITY OF THE ACT
Section 1(2) - the Act extends to the whole of India,

Section 1(3) the Act shall apply to

 every factory; and

 Every other establishment in which 20 or more persons are employed
on any day during an accounting year.
 The appropriate Government may, after giving not less than 2 months’
notice of its intention so to do, by notification in the Official Gazette
apply the provisions of this Act with effect from such accounting year
as may be specified in the notification to any establishment specified
but shall in no case be less than 10.

In relation to the State of Jammu and Kashmir, instead of the reference to the
accounting year commencing on any day in the year 1964 and every subsequent accounting
year shall be construed as reference to the accounting year commencing on any day in the
year 1968 and every subsequent accounting year.

An establishment to which this Act applies shall continue to be governed by this Act
notwithstanding that the number of persons employed therein falls below 20, or, as the case
may be, the number specified in the notification issued under the proviso to sub-section (3).

ACT NOT TO APPLY TO CERTAIN CLASSES OF EMPLOYEES

[SECTION 32]
 employees employed by any insurer carrying on general insurance business and the
employees employed by the Life Insurance Corporation of India;
 seamen as defined in clause (42) of Section 3 of the Merchant Shipping Act, 1958;
 employees registered or listed under any scheme made under the Dock Workers
(Regulation of Employment) Act, 1948 and employed by registered or listed
employers;
 employees employed by an establishment engaged in any industry called on by or
under the authority of any department of Central Government or a State Government
or a local authority;
 employees employed by

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  the Indian Red Cross Society or any other institution of a like nature
including its branches;
 universities and other educational institutions;
 institutions (including hospitals, chambers of commerce and social
welfare institutions) established not for the purpose of profit;
 employees employed by the Reserve Bank of India;
 the Industrial Finance Corporation of India;
 any Financial Corporation established under Section 3, or any Joint Financial
Corporation established
 under Section 3A of the State Financial Corporations Act, 1951;
 the Deposit Insurance Corporation;
 the National Bank for Agriculture and Rural Development;
 the Unit Trust of India;
 the Industrial Development Bank of India;
 (the Small Industries Development Bank of India established
 under Section 3 of the Small Industries Development Bank of India Act, 1989;
 the National Housing Bank;
 any other financial Institution (other than Banking Company)being an establishment
in public sector, which the Central Government may by notification specify
 Employees employed by inland water transport establishments operating on routes
passing through any other country.
 Apart from the above, the appropriate Government has necessary powers under
Section 36 to exempt any establishment or class of establishments from all or any of
the provisions of the Act for a specified period having regard to its financial position
and other relevant circumstances and if it is of the opinion that it will not be in the
public interest to apply all or any of the provisions of this Act thereto. It may also
impose such conditions while according the exemptions as it may consider fit to
impose.

IMPORTANT DEFINITIONS

ACCOUNTING YEAR [SECTION 2(1)]

Means

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  in relation to a corporation, the year ending on the day on which the books and
accounts of the corporation are to be closed and balanced;
 in relation to a company, the period in respect of which any profit and loss account of
the company laid before it in annual general meeting is made up, whether that period
is a year or not;
 in any other case
 the year commencing on the 1st day of April; or
 if the accounts of an establishment maintained by the employer thereof are closed
and balanced on any day other than the 31st day of March, then, at the option of
the employer, the year ending on the day on which its accounts are so closed and
balanced;
 Option once exercised by the employer shall not again be exercised except with
the previous permission in writing of the prescribed authority and upon such
conditions as that authority may think fit.

ALLOCABLE SURPLUS [SECTION 2(4)]

Means –

a. in relation to an employer, being a company (other than a banking company),

67% of the available surplus in an accounting year;
b. in any other case 60% of such available surplus.

AVAILABLE SURPLUS [SECTION 2(6)]

It means the available surplus under Section 5.

AWARD [SECTION 2(7)]

Means an interim or a final determination of any industrial dispute or of any question

relating thereto by any Labour Court, Industrial Tribunal or National Tribunal Constituted
under the Industrial Disputes Act, 1947 or by any other authority constituted under any
corresponding law relating to investigation and settlement of industrial disputes in force in a
State and includes an arbitration award made under Section 10A of that Act or under that law.

CORPORATION [SECTION 2(11)]

Means anybody corporate established by or under any Central, Provincial or State Act
but does not include a company or a co-operative society.

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 EMPLOYEE [SECTION 2(13)]
Means

 any person (other than an apprentice) employed on a salary or wages not exceeding
Rs.21,000/- per in any industry to do any skilled or unskilled, manual, supervisory,
managerial, administrative, technical or clerical work of hire or reward, whether the
terms of employment be express or implied.
 Part time permanent employees working on fixed hours are employees.

EMPLOYER [SECTION 2(14)]

Includes:

 in relation to an establishment which is a factory, the owner or occupier of the factory,

including the agent of such owner or occupier, the legal representative of a deceased
owner or occupier, and where a person has been named as a manager of the factory,
the person so named; and
 in relation to any other establishment, the person who, or the authority which, has the
ultimate control over the affairs of the establishment and where the said affairs are
entrusted to a manager, managing director or managing agent, such manager,
managing director or managing agent.

ESTABLISHMENT IN PRIVATE SECTOR [SECTION 2(15)]

It means any establishment other than an establishment in public sector.

ESTABLISHMENT IN PUBLIC SECTOR [SECTION 2(16)]

It means an establishment owned, controlled or managed by:

 a Government company
 a corporation in which not less than 40% of its capital is held(whether singly or taken
together) by:
 the Government; or
 the Reserve Bank of India; or
 a corporation owned by the Government or the Reserve Bank of India.

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SALARY OR WAGE [SECTION 2(21)]
Means

 all remuneration (other than remuneration in respect of over-timework) capable of

being expressed in terms of money, which would, if the terms of employment, express
or implied, were fulfilled, be payable to an employee in respect of his employment or
of work done in such employment

And includes

 dearness allowance (that is to say, all cash payments, by whatever name called, paid
to an employee on account of a rise in the cost of living)

But does not include:

 any other allowance which the employee is for the time being entitled to;
 the value of any house accommodation or of supply of light, water, medical
attendance or other amenity or of any service or of any concessional supply of food
grains or other articles;
 any travelling concession;
 any bonus (including incentive, production and attendance bonus);
 any contribution paid or payable by the employer to any pension fund or provident
fund or for the benefit of the employee under any law for the time being in force;
 any retrenchment compensation or any gratuity or other retirement benefit payable to
the employee or any ex-gratia payment made to him;
 Any commission payable to the employee.
 where an employee is given in lieu of the whole or part of the salary or, wage payable
to him, free food allowance or free food by his employer, such food allowance or the
value of such food shall, for the purpose of this clause, be deemed to form part of the
salary
 or wage of such employee.

Case: - Chalthan Vibhag Sahakari Khand Udyog v. Government

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LABOUR OFFICER
The definition is wide enough to cover the payment of retaining allowance and also
dearness allowance paid to the workmen. It is nothing but remuneration. Subsistence
allowance given during suspension is not wages. However lay-off compensation is wages.

ESTABLISHMENT [SECTION 3]
Includes

 All its departments, undertakings and branches wherever it has so whether situated in
the same place or in different places and the same shall be treated as parts of the same
establishment for the purpose of computation of bonus under this Act:
 Where for any accounting year, a separate balance-sheet and profit and loss account
are prepared and maintained in respect of any such department or undertaking or
branch then such department, undertaking or branches shall be treated as a separate
establishment for the purpose of computation of bonus under this Act for that year,
unless such department, or undertaking or branch was, immediately before the
commencement of that accounting year treated as part of establishment for the
purpose of computation of bonus.

CALCULATION OF AMOUNT PAYABLE AS BONUS

Step 1: Gross Profit is calculated as per First or Second Schedule.

Step 2: From this Gross Profit, the sums deductible under Section 6 are deducted.

Step 3: To this figure, we add the sum equal to the difference between the direct tax
calculated on gross profit for the previous year and direct tax calculated on gross profit
arrived at after deducting the bonus paid or payable to the employees.

Step 4: The figure so arrived will be the available surplus.

Step 5: Of this surplus, 67% in case of company (other than a banking company) and 60%
in other cases shall be the “allocable surplus” which is the amount available for payment of
bonus to employees.

THE DETAILS OF SUCH CALCULATIONS ARE GIVEN BELOW.

(I) COMPUTATION OF GROSS PROFITS [SECTION 4]

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Gross profits derived by an employer from an establishment in respect of any accounting year
shall:

 In the case of banking company be calculated in the manner specified in the First
Schedule.
 In any other case, be calculated in the manner specified in the Second Schedule.

(II) DEDUCTIONS FROM GROSS PROFITS [SECTION 6]

Sums deductible from gross profits include

 any amount by way of depreciation admissible in accordance with the provisions of

Section 32(1) of the Income-tax Act, or in accordance with the provisions of the
Agricultural Income-tax Law, as the case may be:
 Any amount by way of development rebate, investment allowance, or development
allowance which the employer is entitled to deduct from his income under the Income
Tax Act.
 Subject to the provisions of Section 7, any direct tax which the employer is liable to
pay for the accounting year in respect of his income, profits and gains during the year.
 Such further sums as are specified in respect of the employer in the Third Schedule.

(III) CALCULATION OF DIRECT TAX PAYABLE BY THE

EMPLOYER [SECTION 7]
Under, any direct tax payable by the employer for any accounting year shall, subject
to the following provisions, be calculated at the rates applicable to the income of the
employer for that year, namely:

(a) in calculating such tax no account shall be taken of any loss incurred by the
employer in respect of any previous accounting year and carried forward under any
law for the time being in force relating to direct taxes;

a) any arrears of depreciation which the employer is entitled to add to the amount
of the allowance for depreciation for any following accounting year or years
under sub-section (2) of Section 32 of the Income-tax Act;
b) any exemption conferred on the employer under Section 84 of the Income-tax
Act or of any deduction to which he is entitled under sub-section (1) of
Section 101 of that Act, as in force immediately before the commencement of
the Finance Act, 1965;

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 (b) where the employer is a religious or a charitable institution to which the provisions
of Section 32 do not apply and the whole or any part of its income is exempt from tax
under the Income-tax Act, then, with respect to the income so exempted, such
institution shall be treated as if it were a company in which the public are
substantially interested within the meaning of that Act;

(c) Where the employer is an individual or a Hindu undivided family the tax payable
by such employer under the Income-tax Act shall be calculated on the basis that the
income derived by him from the establishment is his only income.

(IV)COMPUTATION OF AVAILABLE SURPLUS

The available surplus in respect of any accounting year shall be the gross profits for
that year after deducting there from the sums referred to in Section 6.

ELIGIBILITY FOR BONUS AND ITS PAYMENT

(I) ELIGIBILITY FOR BONUS (SECTION 8)

Every employee shall be entitled to be paid by his employer in an accounting year,

bonus, in accordance with the provisions of this Act, provided he has worked in the
establishment for not less than 30working days in that year.

Case:-Project Manager, Ahmedabad Project, ONGC v. Sham Kumar Sahegal

An employee suspended but subsequently reinstated with full back wages cannot be
treated to be ineligible for bonus for the period of suspension.

(II) DISQUALIFICATION FOR BONUS (SECTION 9)

An employee shall be disqualified from receiving bonus under this Act, if he is

dismissed from service for:

 fraud; or
 riotous or violent behaviour while on the premises or the establishment; or
 Theft, misappropriation or sabotage of any property of the establishment.

This provision is based on the recommendations of the Bonus Commission which

observed “after all bonuses can only be shared by those workers who promote the stability
and well-being of the industry and not by those who positively display disruptive tendencies.
Bonus certainly carries with it obligation of good behaviour”.

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Case:-Pandian Roadways Corpn. Ltd. v. Preseding Officer, Principal

Labour Court

If an employee is dismissed from service for any act of misconduct enumerated in

Section 9, he stands disqualified from receiving any bonus under the Act, and not the bonus
only for the accounting year in which the dismissal takes place.

(III) PAYMENT OF MINIMUM BONUS [SECTION 10]

Every employer shall be bound to pay to every employee in respect of any accounting
year a minimum bonus which shall be 8.33 % of the salary or wage earned by the employee
during the accounting year or100 rupees whichever is higher, whether or not the employer
has any allocable surplus in the accounting year:

Where an employee has not completed fifteen years of age at the beginning of the
accounting year, minimum bonus which shall be 8.33 %of the salary or wage earned by the
employee during the accounting year or 60 rupees whichever is higher.

Case: - State v. Sardar Singh Majithia

Section 10 of the Act is not violates of Articles 19 and 301 of the Constitution. Even
if the employer suffers losses during the accounting year, he is bound to pay minimum bonus
as prescribed by Section 10.

(IV) MAXIMUM BONUS

 Where in respect of any accounting year referred to in Section 10, the allocable
surplus exceeds the amount of minimum bonus payable to the employees under that
Section, the employer shall, in lieu of such minimum bonus, be bound to pay to every
employee in respect of that accounting year bonus which shall be an amount in
proportion to the salary or wage earned by the employee during the accounting year
subject to a maximum of 20% of such salary or wage.
 In computing the allocable surplus under this Section, the amount set on or the
amount set off under the provisions of Section 15 shall is taken into account in
accordance with the provisions of that Section. (Section 11)

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(V) CALCULATION OF BONUS WITH RESPECT TO CERTAIN
EMPLOYEES (SECTION 12)

Where the salary or wages of an employee exceeds 7000 rupees or the minimum wage
for the scheduled employment, as fixed by the appropriate Government, whichever is higher
per the bonus payable to such employee under Section 10 or, as the case may be, under
section 11, shall be calculated as if his salary or wages were 7000 rupees or the minimum
wage for the scheduled employment, as fixed by the appropriate Government, whichever is
higher.

(VI) PROPORTIONATE REDUCTION IN BONUS IN CERTAIN CASES

(SECTION 13)
Where an employee has not worked for all the working days in an accounting year,
the minimum bonus of 100 rupees or, as the case maybe, of sixty rupees, if such bonus is
higher than 8.33 per cent of his salary or wage for the days he had worked in that accounting
year, shall be proportionately reduced.

(VII) COMPUTATION OF NUMBER OF WORKING DAYS (SECTION

14)
For the purposes of Section 13, an employee shall be deemed to have worked in an
establishment in any accounting year also on the days on which:

 he has been laid off under an agreement or as permitted by standing orders under the
Industrial Employment (Standing Orders) Act, 1946 or under the Industrial Disputes
Act, 1947 or under any other law applicable to the establishment;
 he has been on leave with salary or wage;
 he has been absent due to temporary disablement caused by
 accident arising out of and in the course of his employment; and
 The employee has been on maternity leave with salary or wage, during the accounting
year.

(VIII) SET ON AND SET OFF OF ALLOCABLE SURPLUS (SECTION

15)

 Where for any accounting year, the allocable surplus exceeds the amount of
maximum bonus payable to the employees in the establishment under Section 11,

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 then, the excess shall, subject to a limit of 20% of the total salary or wage of the
employees employed in the establishment in that accounting year, be carried forward
for being set on in the succeeding accounting year and so on up to and inclusive of the
fourth accounting year to be utilized for the purpose of payment of bonus in the
manner illustrated in the Fourth Schedule.
 Where for any according year, there is no available surplus or the allocable surplus in
respect of that year falls short of the amount of minimum bonus payable to the
employees in the establishment under Section 10, and there is no amount or sufficient
amount carried forward and set on under sub-section (1) which could be utilized for
the purpose of payment of the minimum bonus, then, such minimum amount or the
deficiency, as the case may be, shall be carried forward for being set off in the
succeeding accounting year and so on up to and inclusive of the fourth accounting
year in the manner illustrated in the Fourth Schedule.
 The principle of set on and set off as illustrated in the Fourth Schedule shall apply to
all other cases not covered by sub-section (1) or sub-section (2) for the purpose of
payment of bonus under this Act.
 Where in any accounting year any amount has been carried forward and set on or set
off under this Section, then, in calculating bonus for the succeeding accounting year,
the amount of set on or set off carried forward from the earliest accounting year shall
first be taken into account.
 Apart from the provisions contained in Section 15(1), there is no statutory obligation
on an employer to set apart any part of the profits of the previous year for payment of
bonus for subsequent years.

(IX) ADJUSTMENT OF CUSTOMARY OR INTERIM BONUS

(SECTION 17)

Where in any accounting year

 an employer has paid any Puja bonus or other customary bonus to an employee; or
 an employer has paid a part of the bonus payable under this Act to an employee
before the date on which such bonus becomes payable; then, the employer shall be
entitled to deduct at the amount of bonus so paid from the amount of bonus payable
by him to the employee under this Act in respect of that accounting year and the
employee shall be entitled to receive only the balance.

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Case: - Hukam Chand Jute Mills Ltd. v. Second Industrial Tribunal, West Bengal

The Supreme Court held that the claim for customary bonus is not affected by 1976
Amendment Act. In fact, it has left Section 17 intact which refers to puja bonus or other
customary bonus.

Section 31A speaks about productivity bonus but says nothing about other kinds of
bonuses. The contention that all agreements inconsistent with the provisions of the Act
become inoperative has no substance vis - a-vis customary bonus.

Conceptually statutory bonus and customary bonus operate in two fields and do not
clash with each other.

(X) DEDUCTIONS OF CERTAIN AMOUNTS FROM BONUS

(SECTION 18)
Where in any accounting year, an employee is found guilty of misconduct causing
financial loss to the employer, then, it shall be lawful for the employer to deduct the amount
of loss from the amount of bonus payable by him to the employee under this Act, in respect
of that accounting year only and the employee shall be entitled to receive the balance, if any.

(XI) TIME LIMIT FOR PAYMENT OF BONUS (SECTION 19)

 Where there is a dispute regarding payment of bonus pending before any authority
under Section 22, all amounts payable to an employee by way of bonus under this Act
shall be paid in cash by his employer, within a month from the date from which the
award becomes enforceable or the settlement comes into operation, in respect of such
dispute;
 In any other case, the bonus should be paid within a period of 8months from the close
of the accounting year. However, the appropriate Government or such authority as the
appropriate Government may specify in this behalf may, upon an application made to
it by the employer and for sufficient reasons, by order, extend the said period of 8
months to such further period or periods as it thinks fit, so, however, that the total
period so extended shall not in any case exceed two years.

(XII) RECOVERY OF BONUS FROM AN EMPLOYER

 Where any money is due to an employee by way of bonus from his employer under a
settlement or an award or agreement, the employee himself or any other person

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 authorised by him in writing in this behalf, or in the case of the death of the employee,
his assignee or heirs may, without prejudice to any other mode of recovery, make an
application to the appropriate Government for the recovery of the money due to him,
and if the appropriate Government or such authority as the appropriate Government
may specify in this behalf is satisfied that any money is so due, it shall issue a
certificate for that amount to the Collector who shall proceed to recover the same in
the same manner as an arrear of land revenue:
 Every such application shall be made within one year from the date on which the
money becomes due to the employee from the employer.
 Any such application may be entertained after the expiry of the said period of one
year; if the appropriate Government is satisfied that the applicant had sufficient cause
for not making the application within the said period.

BONUS LINKED WITH PRODUCTION OR PRODUCTIVITY

[SECTION 31A]
 A scheme of bonus payment linked to production or productivity in lieu of bonus
based on profits under the general formula enshrined in the Act. However, bonus
payments under Section31A are also subject to the minimum 8.33 %and maximum 20
%.
 In other words a minimum of 8.33 per cent is payable in any case and the maximum
cannot exceed 20 per cent.

Power of exemption (Section 36)

If the appropriate Government, having regard to the financial position and other
relevant circumstances of any establishment or class of establishments, is of opinion that it
will not be in public interest to apply all or any of the provisions of this Act thereto, it may,
by notification in the Official Gazette, exempt for such period as may be specified therein and
subject to such conditions as it may think fit to impose, such establishment or class of
establishments from all or any of the provisions of this Act.

Case: - J.K.Chemicals v. Maharashtra

Government should consider public interest, financial position and whether workers
contributed to the loss, before grant of exemption from this Act for payment of bonus.

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PENALTIES (SECTION 28)
If any person contravenes any of the provisions of this Act or any rule made there
under; he shall be punishable with imprisonment for a term which may extend to

 6 months, or
 Fine which may extend to 1000 rupees,
 or with both.

If any person, to whom a direction is given or a requisition is made under this Act, fails to
comply with the direction or requisition, he shall be punishable with imprisonment for a term
which may extend to

 6 months, or
 Fine which may extend to 1000 rupees,
 or with both.

OFFENCES BY COMPANIES (SECTION 29)

 If the person committing an offence under this Act is a company, every person who,
at the time the offence was committed, was in charge of, and was responsible to, the
company for the conduct of business of the company, as well as the company, shall be
deemed to be guilty of the offence and shall be liable to be proceeded against and
punished accordingly.
 If an offence under this Act has been committed by a company and it is proved that
the offence has been committed with the consent or connivance of, or is attributable to
any neglect on the part of any director, manager, secretary or other officer of the
company, such director, manager, secretary or other officer shall also be proceeded
against and punished accordingly.
 For the purpose of Section 29, ‘company’ means anybody corporate and includes a
firm or other association of individuals, and ‘director’, in relation to a firm, means a
partner in the firm.

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 THE PAYMENT OF GRATUITY ACT 1972

INTRODUCTION

Gratuity is a kind of retirement benefit, like provident fund or pension. It is a payment

which is intended to help an employee after his retirement whether the retirement is the result
of the rules of superannuation or of some physical disability. The general principle
underlying gratuity schemes is that by faithful service over a long period the employee is
entitled to claim a certain amount as retirement benefit.

The payment of Gratuity Act, 1972, a long-awaited and progressive social security
measure, was passed by parliament in August, 1972, a long-awaited and progressive social
security measure, was passed by parliament in August, 1972. The Act came into force on
16th September, 1972. It was amended twice in 1984. The latest amendment to the Act was
made in 2010.

COVERAGE OF THE ACT

The Act applies to every factory, mine, oilfield, plantations, port and Railway
Company and to every shop or establishment in which 10 or more persons are employed, or
were employed, on any day of the preceding 12months.

The Act makes all persons employed in the above establishments eligible for gratuity
irrespective of their wages.

APPROPRIATE GOVERNMENT [Sec 2(a)]

In relation to any of the following establishments, appropriate Government‟ means
the Central Government.

(a) An establishment belonging to, or under the central of, the Central Government,

(b) An establishment having branches in more than one State,

(c) An establishment of a factory belonging to, or under the control of, the Central
Government,

(d) An establishment of a major port, mine, oilfield or railway company. In any other
case, appropriate Government means the State Government. Where an industrial unit is taken
over by the Central Government under the Industries (Development and Regulation) Act,

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`1951 and its management is entrusted to State Government undertakings, the appropriate
Government is the State Government.

COMPLETED YEAR OF SERVICE [SEC 2(B)]

It means continues service for 1`year.

CONTROLLING AUTHORITY [SEC 2(D)]

Controlling authority means an authority appointed by the appropriate Government.
Under Sec.3, the appropriate Government may, by notification published in the Official
Gazette, appoint any officer to be a controlling authority, who shall be responsible for the
administration of the Act. Different controlling authorities may be appointed for different
areas.

RATE OF GRATUITY

For every completed year of service or part thereof in excess of 6 months, the
employer shall pay gratuity to an employee at the rate of 15 days wages based on the rate of
wages last drawn by the employee concerned[Sec.4(2)]. In the case of a monthly rated
employee 15 days wages shall be calculated by dividing the monthly rate of wages last drawn
by him by 26 and multiplying the quotient by 15.

MAXIMUM GRATUITY [Sec. 4(5)]

The amount of gratuity payable to an employee shall not exceed Rs.10, 00,000.

COMPULSORY INSURANCE (Sec.4-A)

The Indian Labour Conference held in November 1985 had recommended that a
provision for compulsory insurance of employer’s liability and setting up of gratuity fund for
payment of gratuity be incorporated in the Act. In view of this recommendation, then
Amendment Act of 1987 has made provision for compulsory insurance of employer’s
liability to pay gratuity under the Act or in the alternative for the setting of a gratuity fund in
relation to establishments employing 500 or more employees. This has been done by
introducing a new Sec. 4-A in the Act.

PROTECTION OF GRATUITY (Sec.13): No gratuity under this Act and no

gratuity payable to an employee employed in any establishment, factory, mine, oilfield,

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plantation, port, Railway Company or shop exempted under Sec. 5 shall be liable to
attachment in execution of any decree or order of any civil, revenue or criminal court.

(1) Nomination within 90 days: Each employee, who has completed 1year of service
shall make within 90 days of completion of 1 year of service, a nomination.

(2) Distribution of amount of gratuity: An employee may, in the nomination,

distribute the amount of gratuity payable to him under the Act amongst more than one
nominee.

(3) Nomination in favour of family members: If an employee’s has a family at the

time of making a nomination, the nomination shall be made in favour of one more members
of his family. To protect the interests of the family, it has been specifically provided that any
nomination made by such employee in favour of a person who is not member of his family
shall be void. Determination of the amount of gratuity (Sec.7) Application for gratuity— An
employee who is eligible to receive gratuity under the Act, or any person authorised, in
writing, to any on his behalf, shall send an application to the employer ordinarily within 30
days from the date the gratuity became payable for payment of such gratuity. But where the
date of superannuation or retirement of an employee is known, the employee may apply to
the employer before 30 days of the date of superannuation or retirement.

The other rules relating to application for gratuity are as follows.

1. A nominee of an employee who is eligible for payment of gratuity shall apply

ordinarily within 30 days from the date the gratuity became payable to him.

2. A legal heir of an employee who is eligible for payment of gratuity shall apply
ordinarily within 1 year from the date the gratuity became payable to him by the
employer.

3. An application for payment of gratuity field after the expiry of the periods specified
shall be entertained by the employer, if the application adduces sufficient cause for
the delay.

DETERMINATION OF GRATUITY: As soon as gratuity becomes payable the

employer shall determine the amount of gratuity and give notice in writing to the person to
whom the gratuity is payable. Notice is also to be given to the controlling authority
specifying the amount of gratuity so determined, irrespective of the fact whether an
application for payment of gratuity has been made or not.

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ADMINISTRATION: The Act is administrated by a controlling authority appointed by
the appropriate Government.

BENEFITS: Under the Act gratuity is payable to an employee on the termination of his
employment after he has rendered continuous service for not less than five years. The
completion of continuous service of five years is, however, not necessary where the
termination of the employment is due to death or disablement.

Gratuity is payable at the rate of 15 days‟ wages based on the rate of wages last
drawn by the employee for every completed year of service or part thereof in excess of six
months. But the amount of gratuity payable to an employee shall not exceed Rs.1 lakh.

SOURCES OF FUND: Under the Act gratuity is payable entirely by the employer. For
this purpose he is required either (i) to obtain insurance with the life insurance corporation or
(ii) to establish a gratuity fund. Thus it is his liability to pay the premium in the first case and
to make the contribution in the second case.

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 UNIT V

FACTORIES ACT, 1948

INTRODUCTION:

The first factories Act in India was passed in 1881. It was designed primarily to
protect children and to provide for some health and safety measures. The Act of 1934 was
passed to implement the recommendations of the Royal Commission on Labour in India.
Hence the Factories Act of 1948. The Act makes detailed provisions regarding health, safety
and welfare of workers, working hours of adults, employment of young person’s which
include children and adolescents, annual leave with wages, and so on. The Act of 1948 not
only consolidated but also amended the law regulating labour in factories. It came into force
on 1st April, 1949.

The Factories Act 1948, an Act of Parliament, was enacted with the prime object of
protecting workmen employed in factories against industrial and occupational hazards, and,
with that intent it imposes on the owners and occupiers certain obligations to protect the
workers and give themselves working conditions. The object of the Act was to protect human
beings from being subject to unduly long hours of body strain and manual labour. It provides
that employees should work in healthy and sanitary conditions and that precaution should be
taken for their safety and for prevention of accidents (Commercial Law Publications, 1998).
The Act also calls upon the Governments to provide adequate infrastructure for
implementation of the Act and lays down procedures for detection and punishment of
defaulting employers

The object of the Act is to secure health, safety, welfare, proper working hours, and
other benefits to workers. The Act requires that workers should work in healthy and sanitary
conditions and for that purpose; it provides that, precaution should be taken for safety of
workers and prevention of accidents.

APPLICABILITY OF THIS ACT

 The Act is applicable to all the factories, defined under Section 2(m) of the Act and
extends to whole of India including Jammu & Kashmir.
 Unless otherwise provided it is also applicable to factories belonging to Central/State
Governments. (Section 116).

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IMPORTANT DEFINITIONS

FACTORY
Factory means any premises, including the precincts thereof, in any part of which
manufacturing process is carried on with or without the aid of power, provided that at least 10
or 20 persons respectively are employed or were employed on any day of the preceding 12
months.

ESSENTIAL ELEMENTS OF A FACTORY:

(1) There must be premises.

(2) There must be a manufacturing process which is being carried on or is so

ordinarily carried on in any part of such a premises.

(3) There must be ten or more workers who are/were working in such a premises on
any day of the last 12 months where the said manufacturing process is carried on with the aid
of power. But where the manufacturing process is carried on without the aid of power, the
required number of workers working should be twenty or more.

The following are not covered by the definition of factory:

(i) Railway running sheds,

(ii) mines,

(iii) mobile units of armed forces,

(iv) hotels, eating places or restaurants.

MANUFACTURING PROCESS
Any process for:

• making, altering, repairing, ornamenting, finishing, packing, oiling, washing,

cleaning, breaking up, demolishing, or otherwise, treating or adopting any article or substance
with a view to its use, sale, transport, delivery or disposal; or

• pumping oil, water or sewage or any other substance; or

• generating, transforming, transmitting power; or

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 • composing types for printing, printing by letter-press, lithography, photogravure or
other similar process, or book-binding; or

• constructing, reconstructing, repairing, refitting, finishing or breaking up ships or

vessels; or

• preserving or storing any article in cold storage.[Section 2(k)]

The definition is quite important and it has been the subject of judicial interpretation in large
number of cases.

Case - In Re. Seshadrinatha Sharma

The Madras High Court held that to constitute a manufacture there should not be
essentially some kind of transformation of substance.

Case - Shri Laxmi Dass Premji Ghee Merchant v. Inspector of Factories Gantur

Where ghee brought from various customers was sampled chemically, analysed and
packed in tins for transportation to the Head Office of the concern for sale in the market, the
court held that manufacturing process was going in the premises.

Case - Bharati Udyog v. Regional Director ESI Corpn

The cutting of the woods or converting the wood into planks is essentially a part of
the manufacturing activity.

Case - Employers Association of Northern India v. Secretary for Labour U.P. Govt

In the case it was observed that the word ‘ordinarily’ used in the definition of factory
cannot be interpreted in the sense in which it is used in common parlance. It must be
interpreted with reference to the intention and purposes of the Act. Therefore, seasonal
factories or factories carrying on intermittent manufacturing process do not cease to be
factories within the meaning of the Act. (e.g. - Sugar factory to be a factory when no
manufacturing process is carried on during the offseason).

PREMISES AND PRECINCTS

 “Premises” is a generic term meaning open land or land with building or building
alone.
 “Precincts” is usually understood as a space enclosed by walls.

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  Expression ‘premises’ including precincts does not necessarily mean that the premises
must always have precincts. It merely shows that there may be some premises with
precincts and some premises without precincts.

Case - Ardeshir H. Bhiwandiwala v. State of Bombay

The Supreme Court observed that the legislature had no intention to discriminate
between workers engaged in a manufacturing process in a building and those engaged in such
a process on an open land and held that the salt works, in which the work done is of
conversion of sea water into crystals of salt, come within the meaning of the word ‘premises’.

OCCUPIER OF FACTORY [SECTION 2(N)]

Occupier of factory means a person who has ultimate control over affairs of factory.

 in the case of a firm or other association of individuals, any one of the individual
partners or members thereof shall be deemed to be the occupier;
 in the case of a company, any one of the directors, shall be deemed to be the occupier;
 in the case of a factory owned or controlled by the Central Government or any State
Government, or any local authority, the person or persons appointed to manage the
affairs of the factory by the Central Government, the State Government or the local
authority, as the case may be, shall be deemed to be the occupier.
 in the case of a ship which is being repaired, or on which maintenance work is being
carried out, in a dry dock which is available for hire; owner of the dock ship or his
agent or master or other officer-in-charge of the ship or any person who contracts with
such owner, agent or master or other officer-in-charge to carry out the repair or
maintenance work shall be deemed to be occupier.

Case - J.K. Industries Ltd. v. Chief Inspector of Factories

 In this case the Supreme Court has held that only a member of Board of Directors of
the Company can be occupier of the factory of the Company. The ultimate control of
factory owned by company vests in Board of Directors Ultimate control which vests
in Board of Directors cannot be vested in any one else. Company owing factory
cannot nominate its employees or officers except Director of the company as occupier
of its factory.
 Therefore an employee of company or factory cannot be occupier.

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  The occupier shall ensure, as far as possible health, safety, and welfare of workers
while they are working in a factory. The name of the occupier of the factory is
required to be informed to the Chief Inspector of Factories. The occupier will be held
responsible if the provisions of the Factories Act, 1948 are not complied with.

GENERAL DUTIES OF THE OCCUPIER [SECTION 7A]

 Every occupier shall ensure, so far as is reasonably practicable, the health, safety and
welfare of all workers while they are at work in the factory.
 Without prejudice to the generality of the provisions, the matters to which such duty
extends shall include:
 The provision and maintenance of plant and systems of work in the factory that are
safe and without risks to health;
 the arrangement in the factory for ensuring safety and absence of risks to health in
connection with the use, handling, storage and transport of articles and substances;
 the provisions of such information, instruction, training and supervision as are
necessary to ensure the health and safety of all workers at work;
 the maintenance of all places of work in the factory in a condition that is safe and
without risks to health and provisions and maintenance of such means of access to,
and egress from, such places as are safe and without such risks;
 the provision, maintenance or monitoring of such working environment in the factory
for the workers that is safe, without risks to health and adequate as regards facilities
and arrangements for their welfare at work.

NOTICE BY OCCUPIER [SECTION 7]

Occupier of a factory shall send a written notice, containing prescribed particulars, to
the Chief Inspector at least 15 days before an occupier begins to occupy or use a premises as
a factory and at least 30 days before the date of resumption of work in case of seasonal
factories, i.e. factories working for less than 180 days in a year.

A NOTICE MUST CONTAIN FOLLOWING PARTICULARS:

(1) The name and situation of the factory.

(2) The name and address of the occupier.

(3) The name and address of the owner of the premises or building

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 (4) The address at which communication relating to the factory should be sent.

(5) The nature of manufacturing process to be carried on in the factory during next 12
months.

(6) The total rated horse power installed or to be installed in the factory which shall
not include the rated horse power of any separate stand by plant.

(7) The name of the Manager of the factory for the purpose of this Act.

(8) The number of workers likely to be employed in the factory.

(9) Such other particulars as may be prescribed.

Whenever a new manager is appointed, the occupier shall send to the Inspector a
written notice and to the Chief Inspector a copy thereof, within 7 days from the date on which
such person takes over charge. Where no such person is found the occupier should be deemed
to be the manager of the factory.

GENERAL DUTIES OF MANUFACTURERS ETC. [SECTION 7B]

(a) Ensure, that the article is so designed and constructed as to be safe and without
risks to the health of the workers when properly used;

(b) Carry out such tests and examination as may be considered necessary for the
effective implementation of the provisions of clause (a);

(c) Take such steps as may be necessary to ensure that adequate information will be
available:

(i) In connection with the use of the article in any factory;

(ii) About the use for which it is designed and tested; and

(iii) About any condition necessary to ensure that the article, when put to such use,
will be safe, and without risks to the health of the workers.

Where an article is designed or manufactured outside India, it shall be obligatory on the part
of the importer to see:

(a) That the article (including plant and machinery) conforms to the same standards if
such article is manufactured in India, or

(b) if the standards adopted in the country outside for the manufacture of such article
is above the standards adopted in India, that the article conforms to such standards.

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MEASURES TO BE TAKEN BY FACTORIES FOR HEALTH

1. CLEANLINESS [SECTION 11] - Factory is kept clean.

 All the accumulated dirt and refuse on floors, staircases and passages in the factory
shall be removed daily by sweeping or by any other effective method. Suitable
arrangements should also be made for the disposal of such dirt or refuse.
 Once in every week, the floor should be thoroughly cleaned by washing with
disinfectant or by some other effective method.
 Effective method of drainage shall be made and maintained for removing water, to the
extent possible, which may collect on the floor due to some manufacturing process.
 White wash or colour wash should be carried at least once in every period of 14
months.
 Where surface has been painted or varnished, repair or varnished should be carried
out once in every five years, if washable then once in every period of six months;
 Where they are painted or varnished or where they have smooth impervious surface, it
should be cleaned
 Once in every period of 14 months by such method as may be prescribed.
 All doors, windows and other framework which are of wooden or metallic shall be
kept painted or varnished at least once in every period of five years.
 The dates on which such processes are carried out shall be entered in the prescribed
register.
 If the State Government finds that a particular factory cannot comply with the above
requirements due to its nature of manufacturing process, it may exempt the factory
from the compliance of these provisions and suggest some alternative method for
keeping the factory clean.

2. VENTILATION AND TEMPERATURE (SEC.13): Adequate Ventilation by

the circulation of fresh air, and such a temperature as will secure to workers therein
reasonable conditions of comfort and prevent injury to health. Standard of adequate
ventilation and temperature to be prescribed and provision of measuring instruments

3. DUST AND FUMES (SEC.14): Where dust or fumes or impurity of such a nature
as is likely to be injuries or offensive to the workers is given off as a result of the
manufacturing process being carried on in a factory, effective measures shall be taken in the
factory for prevention of inhalation or accumulation of dust and fumes in workrooms.

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4. ARTIFICIAL HUMIDIFICATION (SEC.15): Ventilation and cooling of air. In
respect of all factories in which the humidity of the air is artificially increased, the State
Government may make rules prescribing standards of humidification.

5. OVERCROWDING (SEC.16): Overcrowding incurious to health of workers to be

avoided. There shall not be overcrowding in any room of the Factory so as to injurious to the
health of the workers employed therein.

6. LIGHTING (SEC.17): In every part of a factory where workers are working or

passing, there shall be provided and maintained sufficient and suitable lighting, natural or
artificial, or both.

7. DRINKING WATER (SEC.18): In every factory, effective arrangements shall be

made to provide and maintain at suitable points conveniently situated for all workers
employed there in a sufficient supply of wholesome drinking water. Cooling of drinking
water where more than 250 workers employed.

8. LATRINES AND URINALS (SEC.19): (1) Separate latrines and urinals male and
female workers conveniently situated and adequately lighted and ventilated.

9. SPITTOONS [SECTION 20]

MEASURES TO BE TAKEN BY FACTORIES FOR SAFETY

SAFETY:

The safety provisions are absolute and obligatory in their character and the occupier
of every factory is bound to follow them.

1. FENCING OF MACHINERY (SEC.21): (a) Every moving part of a prime

mover, and every fly-wheel connected to a prime mover, whether the prime mover of fly-
wheel is in the engine house or not;

(a) The headrace and tailrace of every water-wheel and water-turbine;

(b) Any part of a stock-bar which projects beyond the headstock of a lathe;

(c) Every part of an electric generator, a motor or rotary convertor;

(d) Every part of transmission machinery; and

(e) Every dangerous part of any other machinery.

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2. WORK ON NEAR MACHINERY IN MOTION (SEC.22): (1) Examination
of machinery in motion by a trained adult male worker. The clothing shall be supplied by the
occupier. The name of the person so engaged shall be entered in the prescribed register.

3. EMPLOYMENT OF YOUNG PERSON ON DANGEROUS MACHINE

(SEC 23): (1) Restriction on young person to work on dangerous machines. (a) He has
been fully instructed as to the dangerous arising in connection with the machine and the
precautions to be observed; and He has received sufficient training to work on the machine or
is under adequate supervision by a person who has a thorough knowledge and experience of
the machine.

4. STRIKING GEAR AND DEVICES FOR CUTTING OFF POWER

(SEC.24): In every factory, suitable striking gear or other efficient mechanical appliance
shall be provided and maintained. Suitable devices for cutting off power in emergencies from
running machinery these shall be provided and maintained in every workroom.

5. SELF-ACTING MACHINES (SEC.25): No traversing part of a self-acting

machine in any factory and no material carried thereon shall be allowed to run on its outward
or inward traverse within a distance of 45 centimetres from any fixed structure which I not
part of the machine.

6. CASING OF NEW MACHINERY (SEC.26): (1) Casing to prevent danger. All

machinery driven by power and installed in any factory after 1st April, 1949, every set screw,
bolt or key on any revolving shaft, spindle, wheel or pinion shall be so sunk, encased or
otherwise effectively guarded as to prevent danger.

7. PROHIBITION OF EMPLOYMENT OF WOMEN AND CHILDREN

NEAR COTTON-OPENERS (SEC. 27): No woman or child shall be employed in
any part of a factory for pressing cotton in which a cotton-opener is at work.

8. HOISTS AND LIFTS (SEC.28): (1) Hoists and lifts to be of good mechanical
construction and to be properly maintained and examined once in every 6months.

9. LIFTING MACHINES, CHAINS, ROPES AND LIFTING TACKLES

(SEC.29): Cranes and lifting machines etc. to be of good construction and to be examined
once in every 12 months. Cranes and lifting machines not to be loaded beyond safe working

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load. Crane not to approach within 6 metres of a place where any person is employed or
working

10. PRESSURE PLANT (SEC.31): If in any factory any plant or any machinery or
part thereof is operated at a pressure above atmospheric pressure, effective measures shall be
taken to ensure that the safe working pressure is not exceeded.

11. FLOORS, STAIRS AND MEANS OF ACCESS (SEC. 32): In every

factorial floors, steps, stairs, passages and gangways shall be of sound construction and
properly maintained.

12. PITS, SUMPS, OPENING IN FLOORS, ETC. (SEC. 33): In every factory,
pits. Sumps, fixed vessels, tanks, openings in the ground or in the floor shall be securely
covered or securely fenced.

13. EXCESSIVE WEIGHTS (SEC.34): No person shall be employed in any factory

to lift, carry or move any load so heavy as to be likely to cause him injury.

14. PROTECTION OF EYES (SEC.35): In every factory, screen or suitable goggles

shall be provided for the protection of persons employed on, or in immediate vicinity of,
mechanical or other processes which involve any danger or injury to the workers eyesight.

15. PRECAUTIONS AGAINST DANGEROUS FUMES (SEC.36): No person

shall be required or allowed to enter any chamber, tank, vat, pit, pipe, flu or other confined
space in any factory in which any Gas, fume, vapour or dust is likely to be present to such an
extent as to involve risk to persons.

16. PRECAUTIONS REGARDING THE USE OF PORTABLE

ELECTRIC LIGHT (SEC.36-A): No portable electric light or any other electric
appliance of voltage exceeding 24 volts shall be permitted for use inside any chamber, tank,
vat, pit, flue or other confined space in a factory, unless adequate safety devices are provided.

17. PRECAUTIONS IN CASE OF FIRE (SEC.38):Safe means of escape for all

persons in the event of a fire, and the necessary equipment and facilities for extinguishing
fire.

18. SAFETY OF BUILDING AND MACHINARY (SEC.40): The Inspector

may serve on the occupier or the manager or both of the factory an order in writing

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specifying the measures which in his opinion shall be adopted and requiring them to be
carried out before a specified date.

19. SAFETY OFFICERS (SEC. 40-B): In every factory (i) wherein 1,000 or more
workers are ordinarily employed.

MEASURES TO BE TAKEN BY FACTORIES FOR WELFARE

WELFARE
Chapter V (Sections. 42 to 50) of the Act deals with facilities for the welfare of
workers. The various provisions in this regard are as follows:

1. WASHING FACILITIES (SEC. 42): In every factory (a) adequate and suitable
facilities (separately and adequately screened for the use of male and female workers) shall
be provided and maintained for the use of the workers therein; and (b) such facilities shall be
conveniently accessibly and shall be kept clean.

2. FACILITIES FOR STORING AND DRYING CLOTHING (SEC.

43).The State Government may make rules requiring the provision of suitable places for
keeping clothing of workers not worn during working hours and for the drying of wet
clothing in respect of any factory or class of factories.

3. FACILITIES FOR SITTING (SEC. 44).

(1) Provision of sitting arrangement for workers obliged to work in a

standing position. In every factory, suitable arrangements for sitting shall be provided
and maintained for all workers who are obliged to work in a standing position. This has been
done in order that the workers may take advantage of any opportunities for rest which may
occur in the course of their work [Sec. 44 (1)].

(2) Provision of seating arrangement for workers doing work which can be
done in a sitting position. If the workers in any factory engaged in a particular
manufacturing process or working in a particular room are able to do their work efficiently in
a sitting position, the Chief Inspector may require the occupier of the factory to provide such
seating arrangements as may be practicable [Sec. 44 (20].

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(3) Exemption. The State Government may, by notification in the Official Gazette,
exempt any factory or class of factories or manufacturing process from the application of the
provisions of Sec. 44 [Sec. 44 (3)].

4. FIRST-AID APPLIANCES (SEC. 45).

(1) At least one first-aid box with prescribed contents for every 150
workers. There shall in every factory be provided and maintained so as to be readily
accessible during all working hours, first-aid boxes or cupboards with the prescribed
contents. There shall be at least one such box for every 150 workers ordinarily employed at
any one time in the factory [Sec. 45 (1)].

(2) First-aid box to have prescribed contents.

Only the prescribed contents shall be kept in a first-aid box or cupboard [Sec. 45 (2)].

(3) First-aid box to be in the charge of responsible person.

Each first-aid box or cupboard shall be kept in the charge of a separate responsible
person who holds a certificate in the first-aid treatment recognized by the State Government.
Further, such person shall always be readily available during the working hours of the factory
[Sec. 45 (3)].

(4) Ambulance room in a factory employing more than 500 workers.

In every factory wherein more than 500 workers are ordinarily employed there shall
be provided and maintained an ambulance room containing the prescribed equipment. The
room shall be in the charge of such medical and nursing staff as may be prescribed and those
facilities shall always be made readily available during the working hours of the factory [Sec.
45 (4)].

5. CANTEENS (SEC. 46)

(1) Canteen in factory employing more than 250 workers—the State

Government may make rules.

The State Government may make rules requiring that in any specified factory where
in more than 250 workers are ordinarily employed; a canteen or canteens shall be provided
and maintained by the occupier for the use of the workers [Sec. 46 (1)].

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(2) Provisions in rules. The rules made by the State Government as to canteens may
provide for

(a) The date by which canteen shall be provided,

(b) The standards in respect of construction, accommodation, furniture and other

equipment of the canteen,

(c) The foodstuffs to be served therein and the charges which may be made thereof,

(d) The constitution of a managing committee for the canteen and representation of
the workers in the management of the canteen,

(e) The items of expenditure in the running of the canteen which are not to be taken
into account in fixing the cost of foodstuffs and which shall be borne by the employer,
and

(f) The delegation to the Chief Inspector, subject to such conditions as may be
prescribed, of the power to make rules under Clause (c) [Sec. 46 (2)].

6. SHELTERS, REST ROOMS AND LUNCH ROOMS (SEC. 47).

(1) Provision for shelters, rest rooms, lunch rooms in factories employing
more than 150workers.
 In every factory wherein more than150 workers are ordinarily employed, there shall
be a provision for shelters, rest rooms and a suitable lunch room where workers can
eat meals brought by them with provision for drinking water.
 However, any canteen maintained in accordance with the provisions of Sec. 46 shall
be regarded as part of this requirement. Where a lunch room exists, no worker shall
eat any food in the workroom [Sec. 47 (1)].

(2) Shelters, etc. to be sufficiently lighted, ventilated and cooled.

The shelters or rest rooms or lunch rooms shall be sufficiently lighted and ventilated
and shall be maintained in a cool and clean condition [Sec. 47 (2)].

7. CRÈCHES (SEC. 48).

(1) Provision of crèches in factories employing more than 30 women

workers.

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 In every factory wherein more than 30 women workers are ordinarily employed, there
shall be provided and maintained a suitable room or rooms for use of children under the age
of 6 years of such women [Sec. 48 (1)].

(2) Crèches to be adequately lighted and ventilated and to be under the

charge of trained women.
Rooms for use of children shall provide adequate accommodation, shall be adequately
lighted and ventilated. Further they shall be maintained in a clean and sanitary condition and
shall be under the charge of women trained in the care of children and infants [Sec.48 (2)].

(3) Prescription of rules by the State Government.

The State Government may make rules prescribing the location and the standards in
respect of construction, accommodation, furniture and other equipment of rooms for use of
children. It may also make rules for the provision of additional facilities for the care of
children belonging to women workers, including suitable provision of facilities

(a) For washing and changing their clothing,

(b) Of free milk or refreshment or both for the children, and

(c) For the mothers of children to feed them at the necessary intervals. [Sec 48 (3)]

8. WELFARE OFFICERS (SEC. 49).

(1) Employment of welfare officers in factories employing 500 or more

workers.

In every factory wherein 500 or more workers are ordinarily employed the occupier
shall employ in the factory such number of welfare officers as may be prescribed [Sec. 49
(1)].

(2) Duties, qualifications and conditions of service to be prescribed by the

State Government.

The State Government may prescribe the duties, qualifications and conditions of
service of welfare officers [Sec. 49 (2)].Even if a factory (say, a sugar factory) employs over
500 workers only for a few months in the year and not continuously, the occupier shall
employ the prescribed number of welfare officers [Employers’ Assn. of Northern India v.
Secretary of Labour].

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Case - Kanpur Suraksha Karmachari Union v. Union of India

Employees working in canteens in industrial establishments run by Managing

Committee are not employees of the Managing Committee, but are employees of occupier.

Case - Tamil Manila Thozilalar Sangam v. Chairman TNEB

Where the statute casts an obligation to own a canteen in the factory and the
establishment runs a canteen through a contractor who brings the workers for the canteen
would be part and parcel of the establishment and the canteen workers would be deemed to
be regular employees of the establishment entitled to arrears of salary and other monetary
benefits

FACILITIES AND CONVENIENCES – IN SUMMERY

• Factory should be kept clean.

• There should be arrangement to dispose of wastes and effluents.

• Ventilation should be adequate.

• Reasonable temperature for comfort of employees should be maintained.

• Dust and fumes should be controlled below permissible limits.

Artificial humidification should be at prescribed limits.

• Overcrowding should be avoided.

• Adequate lighting, drinking water, toilets, and spittoons should be provided.

ADDITIONAL FACILITIES IN CASE OF LARGE FACTORIES – IN

SUMMERY
• Ambulance room, if 500 or more workers are employed.

• Canteen, if 250 or more workers are employed.

• Rest rooms/Centres with drinking facility, if 150 or more workersare employed.

• Creches, if 30 or more women workers are employed.

• Full time Welfare Officer, if 500 or more workers are employed.

• Safety Officer, if 1000 or more workers are employed.

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WELFARE MEASURES – IN SUMMERY
• All machines should be properly fenced to protect workers when machinery is in
motion.

• Hoist and lifts should be in good condition and tested periodically.

• Pressure Plant should be checked as per the rules.

• Floor, stairs, and means of access should be of sound construction and free from
obstructions.

• Safety appliances for eyes, dangerous dust, gas, fames should be provided.

• In case of hazardous substances, additional safety measures have to be taken.

• Adequate fire fighting equipment should be available.

• Safety Officer should be appointed if number of workers in factory is 1000 or more.

WORKING HOURS
• A worker cannot be employed for more than 9 hours in a day.

• A worker cannot be employed for more than 48 hours in a week.

• At least ½ hour rest should be provided after every 5 hours.

• Total period of work including rest interval cannot be more than10.5 hours.

• Weekly holiday is compulsory, if the worker is asked to work on weekly holiday, he should
avail the holiday on one of the 3 days immediately after the normal day of holiday.

OVERTIME WAGES
• If a worker works beyond 9 hours a day and 48 hours a week, overtime wages are paid at
double the rate of normal wages.

• Overtime wages are not payable on tour.

• Total working hours including overtime should not exceed 60hours in a week.

• Total overtime hours in a quarter should not exceed 50 hours.

LEAVE
• Worker is entitled in every calendar year annual leave with wages.

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• At the rate of day for every 20 days of work performed in the previous calendar year
provided that he had worked for 240 days or more in the previous calendar year.

• Child worker (who is 14 years and above but less than 15 years) is entitled to 1 day leave
with wages for every 15 days.

• While calculating 240 days earned leave, maternity leave up to 12weeks and lay off days
will be considered but leave shall not be earned on those days.

• Leave can be accumulated up to 30 days in the case of an adult and 40 days in the case of a
child.

• Leave admissible is exclusive of holidays occurring during or at either end of leave period.
Leave cannot be taken for more than 3times in a year.

• Above-mentioned benefits are the minimum benefits. Employer can of course provide
additional or higher benefits.

EMPLOYMENT OF WOMEN
• A women worker cannot be employed beyond 6 a.m. to 7 p.m.

• State Government can grant exemption to any factory from such provisions but in no case a
woman can be permitted to work during 10 p.m. to 5 a.m.

• Shift change can be done only after weekly or other holiday and not in between.

YOUNG PERSON AND ADULT

• "Young Person" means a person who is either a child or an adolescent.

• Child - A person of 14 years of age but below 15 years of age.

• Adolescent - A person of 15 years of age but below 18 years of age.

• "Adult" means a person who has completed his eighteenth year of age.

EMPLOYMENT OF CHILDREN
• Children below 14 years of age cannot be employed.

• A child of age 14 years but below 15 years can be employed for only 4.5 hours per day.

• He should be certified fit by certifying surgeon.

• He cannot be employed during night from 10 p.m. to 6 a.m.

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• A person of 15 years of age but below 18 years of age is termed as adolescent. He can be
employed as an adult if he has certificate of fitness for a full day’s work from a certifying
surgeon.

• An adolescent is not permitted to work between 7 p.m. to 6 a.m.

DISPLAY ON NOTICE BOARD

A Notice containing an abstract of the Factories Act, 1948 and the rules made there
under in English and local language shall be displayed by employer.

The name and address of Inspector of factories and Certifying Surgeon shall also be
displayed on the Notice Board.

PUNISHMENT TO WELFARE OFFICER

No punishment can be imposed on Welfare Officer without prior sanction of Chief
Commissioner of Factories. However, simple order of termination as per terms of
appointment is not punishment and such termination order is valid.

Case - Arun Kumar Bali v. Government, NCT of Delhi

POWERS OF INSPECTOR (SEC 9)

An Inspector may, within the local limits for which he is appointed,--

(a) Enter, with assistant who are in the service of the Government or any local or
other public authority or with an expert, the premises of a factory;

(b) Make examination of the premises, plant, machinery, article or substance;

(c) Inquire into any accident or dangerous occurrence, whether resulting in bodily
injury, disability or not, and take on the spot or otherwise statements of any person
which he may consider necessary for such inquiry;

(d) Require the production of any prescribed register or any other document relating
to the factory;

(e) seize, or take copies of, any register, record or other document or any portion
thereof, as he may consider necessary in respect of any offence under this Act, which
he has reason to believe, has been committed:

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 (f) Direct the occupier that any premises or any part thereof, or anything lying therein,
shall be left undisputed (whether generally or in particular respects) for so long as in
necessary for the purpose of any examination under Clause (b):

(g) Take measurements and photographs and make such recordings as he considers
necessary for the purpose of any examination under Clause (b) taking with him any
necessary instrument or equipment:

(h) in case of any article or substance found in any premised, being an article or
substance which appears to him as having caused or is likely to cause danger to the
health or safety of the workers, direct it to be dismantled or subject it to any process
of test (but not so as to damage or destroy it unless the same is necessary for carrying
out the purposes of the Act.) Further, he may take possession of any such article or
substance or a part thereof, and detain it for so long as is necessary for such
examination; and

(i) Exercise such other powers as may be prescribed. The above powers of an
inspector are subject to any rules which may be made by the State Government in this
behalf.

SPECIAL PROVISIONS RELATING TO HAZARDOUS PROCESSES

HAZARDOUS PROCESS
"Hazardous process" means any process or activity in relation to an industry specified
in the First Schedule where, unless special care is taken, raw materials used therein or the
intermediate or finished products, bye products, wastes or effluents thereof would

• Cause material impairment to the health of the persons engaged in or connected therewith;
or

• result in the pollution of the general environment;

CONSTITUTION OF SITE APPRAISAL COMMITTEES

A Committee under the name Site Appraisal Committee shall be constituted by the
State Government to advise the Government in the matter of examination of applications for
establishment of factories involving hazardous processes. The constitution of the site
appraisal committee consisting of committee has been specified therein.

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The Site Appraisal Committee shall examine an application for the establishment of a factory
involving hazardous process and make its recommendation to the State Government within a
period of ninety days in the prescribed form.

COMPULSORY DISCLOSURE OF INFORMATION BY THE

OCCUPIER
It is compulsory on the part of the occupier of every factory involving a hazardous
process to disclose all information regarding dangers, including health hazards to the workers
employed in the factory, the Chief Inspector, the local authority within whose jurisdiction the
factory is situated and the general public in the vicinity.

SPECIFIED RESPONSIBILITY OF THE OCCUPIER IN RELATION

TO HAZARDOUS PROCESSES
Accurate and up-to-date health records or medical records of the workers of the
factory who are exposed to any chemical toxic or any other harmful substances which are
manufactured, stored, handled or transported and such records shall be maintained by the
occupier of a factory involving any hazardous process.

INQUIRY COMMITTEE

In the event of occurrence of an extraordinary situation, the Central Government may

appoint an Inquiry Committee to inquire into the standards of health "and safety observed in
the factory with a view to finding out the causes of any failure or neglect in the adoption of
any measures prescribed for the health and safety of the workers or the general public.

Emergency standards: The Director-General of Factory Advice Service and Labour

Institutes may be directed by the Central Government to lay down emergency standards in
respect of hazardous process.

Permissible limits of exposure of chemical and toxic substances: The Second

Schedule added to the Act, indicates maximum permissible threshold limits of exposure of
chemical and toxic substances in manufacturing processes in any factory.

Workers Participation in safety management: The occupier in every factory shall

set up a safety committee consisting of equal number of representatives of workers and
management to promote co-operation between the workers and the management in

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maintaining proper safety and health at work and to review periodically the measures taken in
that behalf where hazardous process is involved.

Warning about imminent danger: If there is reasonable apprehension regarding

likelihood of imminent danger to the lives or health of the workers employed in a factory,
they may bring the same to the notice of the occupier, agent, manager, etc.

PENALTIES AND PROCEDURES

(1) General penalties for offences: If there is any contravention of any of the
provisions of this Act or any rules or order made there under, the occupier and manager shall
each be guilty of an offence and punishable with imprisonment for a term which may extend
to two years or with fine which may extend to Rs. one lakh or with both and if the
contravention is continued after conviction, with a further fine of Rs. One thousand for each,
day till contravention continues. The provisions of Section 92 further provides penalty for
contravention of any of the provisions of Chapter IV or any rule made there under or under
section 87 which has resulted in an accident causing death or serious bodily injury, the fine
shall not be less than 25,000 in the case of an accident causing death and 5,000 in case of
serious bodily injury. Explanation to this Section defines serious bodily injury, which
involves the permanent loss of the use of or permanent injury to any limb or sight or hearing
or the fracture of any bone excluding the fracture (not being fracture of more than one) bone
or joint of any phalanges of the hand or foot.

Section 94 stipulates for enhanced penalty for any person who has already been
convicted under Section 92 of the Act, and is again guilty of an offence involving
contravention of the same provisions. Punishment for subsequent conviction includes
imprisonment for a term which may extend to three years or with fine which may not be less
than 10,000 but which may extend tp Rs. two lakhs or with both. Provided that the Court
may, for any adequate and special reasons to be mentioned in the judgement impose a fine of
less than 10,000. Provided further, that where contravention of any of the provisions of
Chapter IV or any rule made there under or under Section 87 has resulted in an accident
causing death or serious bodily injury, the fine shall not be less than 35,000 in case of death
and 10,000 in the case of an accident causing serious bodily injury.

No cognizance shall be taken of any conviction made more than two years before the
commission of the offence for which the person is subsequently convicted.

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(2) Liabilities of owner of premises in certain circumstances: Section93
provides that where in any premises separate building are being leased out by the owner to
different occupiers for use as separate factories, the owner of the premises shall be
responsible for the provision and maintenance of common facilities and services such as
approach roads, drainage, water-supply, lighting and sanitation.[Section 93(1)]

Where in any premises, independent floors or flats are leased to different occupiers
for use as separate factories, the owner shall be liable as if he were the manager or occupier
of a factory for any contravention of the provisions of this Act in respect of

 latrines, urinals, washing facilities and common supply of water for this purpose;
 fencing of machinery and plant belonging to the owner and not entrusted to the
custody or use of an occupier
 safe means of access to floors or flats and maintenance and cleanliness of staircase
and common passages
 precautions in case of fire;
 maintenance of hoists and lifts; and
 maintenance of any other common facilities provided in the premises. [Section 93(3)]

But the liability of the owner [under Section 93(3) arises only where in any premises,
independent rooms with common latrine, urinals and washing facilities are leased to different
occupiers for use as separate factories so that the owner should also comply with the
provisions of maintaining such facilities. (Section 93(5)]

For the purposes of sub-sections (5) and (7) computing the total number of workers
employed, the whole of the premises shall be deemed to be single factory. [Section 93(3)]

The Chief Inspector has been empowered to issue orders to the owners in respect of the
carrying out of the provisions as mentioned above but subject to the control of the State
Government.

(3)Penalty for obstructing Inspector: Section 95 lays down penalty of imprisonment

for six months or fine of `10,000 or with both for wilfully obstructing an inspector in the
exercise of any power conferred on him by or under this Act or fails to produce any registers
or other documents to him on demand or concealing or preventing any worker from
appearing before or being examined by an Inspector.

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(4)Penalty for wrongfully disclosing of results of analysis under Section 91:
Section 96 provides imprisonment extending up to a term of six months and fine up to 10,000
or both for the wrongful disclosure of results of analysts of the analysis done under Section
91 of the Act.

(4A) Penalty for contravention of Sections 41B, 41C and 41H: Section96A
provides punishment of 7 yean imprisonment or fine which may extend to Rs. two lakhs for
the non-compliance with or contravention of any of the provisions of Section 41B, 41C, or
41H or rules made there under by any person. In case the failure or contravention continues,
with additional fine which may extend to five thousand rupees for everyday during which
such failure or contravention continues after the conviction for the first such failure or
contravention. If such failure, contravention continues beyond a period of one year after the
date of conviction, the offender shall be punishable with imprisonment for a term which may
extend to ten years.

(5) Offences by workers and penalties there for:

(i) Section 97 lays down that if any worker contravenes the provision of this Act or any rules
or orders made there under imposing any duty or liability on workers he will be punishable
with fine which may extend to 500/-

(ii) Section 98 imposes penalty for using false certificate of fitness.

Such punishment involves imprisonment for such a term which may not extend to two
months or with fine which may extend to1, 000/- or with both.

(6) Penalty for permitting double employment of child by parents or guardians is

stipulated under Section 99. Such an act is punishable with fine extending up to `1,000 unless
it appears to the Court that the child so worked without consent and connivance of such
parents, guardian or person.

(7) Onus of providing limits of what is practicable etc: Onus of proving is on the
person who is alleged to have failed to comply with such duty etc. to prove that he has taken
all measures or it was not reasonable practicable. (Section 104A)

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 THE TAMIL NADU SHOPS AND ESTABLISHMENT ACT 1947

There is no enactment in this Province regulating the conditions of work of employees

in shops, commercial undertaking, restaurants, etc. The Weekly Holidays Act, 1942(Central
Act XVIII of 1942), which has been brought into force in this Province from January, 1947 is
limited in scope in that it provides only for the grant of holidays and does not contain
provisions for various other matters affecting them, such as hours of work, payment of
wages, health and safety.
It is considered that there should be a comprehensive measure in this Province to
regulate these matters on the lines of similar enactments in force in other Provinces. The Bill
is intended to give effect to this object. Its main features are set out below. The provisions of
the Bill will come into force in the first instance in the City of Madras and in all
municipalities on a day to be fixed by the Government for this purpose.
Power has also been taken by the Government to bring the provisions into force in
other areas, when necessary.
DEFINITIONS: In this Act, unless there is anything repugnant in the subject or context-
1) ‘Child´ means a person who has not completed fourteen years.

2) ’closed´ means not open for the service of any customer or open to any business connected
with the establishment.

3) ‘commercial establishment´ means an establishment which is not a shop but which carries
on the business of advertising, commission, forwarding or commercial agency, or which is a
clerical department of a factory or industrial undertaking or which is an insurance company,
joint stock company, bank, broker’s office or exchange and includes such other
establishments as the state government by notification may by notification declare to be a
commercial establishment for the purposes of this Act.

4) ‘day´ means the period of twenty-four hours beginning at midnight. Provided that in the
case of a person employed, whose hours extend beyond midnight, day means the period of
twenty-fours beginning from the acting in the time when such employment commences.

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5) ‘employer´ means a person owning or having charge of the business of an establishment
and includes the manager, agent or other persons acting in the general management or control
of an establishment;

6) ‘establishment´ means a shop. Commercial establishment, restaurant, eating house, theatre

or any place of public amusement or entertainment and includes such establishment as the
State Government for the purposes of this Act;

7) ‘factory´ means any premises which is a factory within the meaning of the Factories Act,
1948.

8) ‘inspector´ means an Inspector appointed under section 42;

9) ‘notification´ means a notification in the Fort St. George Gazette;

10)‘opened’ means opened for the service of any customer.

 ‘restaurant’ or ‘eating house’ means any premises in which is carried on wholly or
principally the business of the supply of refreshments or meals to the public or a class
of the public for consumption on the premises but does not include a restaurant
attached to a theatre.
 ‘shop’ means any premises where any trade or business is carried on or where
services are rendered to customers and includes offices, store rooms, godowns and
warehouses, whether in the same premises or otherwise, used in connection with such
business but does not include a restaurant or commercial establishments.
 ‘theatre’ includes any place intended wholly or principally for the representation of
moving pictures or for dramatic performances.
REFERENCES TO TIME OF DAY
Reference to time of day in this act is references to India Standard time which is five and a
half hours ahead of Greenwich Mean Time

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POWER TO GOVERNMENT TO APPLY ACT TO EXEMPTED
PERSONS OR ESTABLISHMENTS
Notwithstanding anything contained in section 4, the Government may, by notification
apply or any of the provisions of this Act to any class of persons or establishment mentioned in
that section, other than those mentioned in clause (c) and (f) of sub-section (1), and modify or
cancel any such notification
Exemptions
The Government may, by notification, exempt either permanently or for any specified
period, any establishment or class of establishments or person or class of persons, from all or any
of the provisions of this Act, subject to such conditions as the Government deem fit.
SHOPS
OPENING AND CLOSING HOURS OF SHOPS
(1) Save as provided by order or under other enactment for the time being in force, no
shop shall on any date be opened earlier or closed later than such hours as may be
fixed by the (State) Government, by a general or special order in that behalf: Provided
that any customer who was being served or was waiting to be served in any shop at
the hour fixed for its closing may be served during the quarter of an hour immediately
following such hour.
(2) Before passing an order under sub section (1), the (State) government shall hold
an inquiry in the prescribed manner.
(3) The (State) government may, for the purpose of this section, fix different hours for
different shops or different classes of shops or for different areas or for different times
of the year.
SELLING OUT SIDE SHOPS PROHIBITED AFTER CLOSING HOUR
Save as provided by or under any other enactment for the time being in force, no
person shall carry on, in or adjacent to a street or public place, the sale of any goods after the
hour fixed under section 7 for the closing of shops dealing in the same class of goods in the
locality in which such street or public place is situated: Provided that nothing in this section
shall apply to the sale of newspapers.
DAILY AND WEEKLY HOURS OF WORK IN SHOPS
(1) Subject to the provision of this Act, no person employed in any shop shall be required or
allowed to work therein for more than eight hours in any day and

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forty eight hours in any week: Provided that any such person may be allowed to work in such
shop for any period in excess of the limit fixed under this sub section subject to payment of
overtime wages, if the period of work including overtime work, does not exceed ten hours in
any day and in the aggregate fifty-four hours in any week.
(2) No person employed in any shop shall be required or allowed to work therein for more
than four hours in any day unless he has had an interval for rest of at least one hour.
SPREAD OVER OF PERIODS OF WORK
The periods of work of a person employed in a shops hall are so arranged that, along
with his intervals for rest, they shall not spread over more than twelve hours in a day.
CLOSING OF SHOPS AND GRANT OF HOLIDAYS
(1) Every shop shall remain entirely close on one day of the week which day shall be
specified by the shopkeeper in a notice permanently exhibited in a conspicuous place
in the shop; and the day so specified shall not be altered by the shopkeeper more often
than once in three months.
(2) Every person employed in a shop shall be allowed in each week a holiday of one
whole day; Provided that nothing in this sub section shall apply to any person whose
total period of employment in the week, including any days spent on authorized leave,
is less than six days, or entitle a person who has been allowed a whole holiday on the
day on which the shop has remained closed in pursuance of sub section (1), to an
additional holiday
(3) (a) The (State) government may, by notification, require in respect of shops or any
specified class of shops, that they shall, in addition to the day provided for by
subsection(1), be closed at such hour in the afternoon of one week f\day in every
week at such hour as may be fixed by the (State) Government.
(b) Every person employed in any shop to which a notification under clause (a)
applies, shall be allowed in each week an additional holiday of one half day
commencing at the hour in the afternoon fixed for the closing of the shop under clause
(a)
(4) The (state) government may, for the purpose of sub section (3), fix different hours
for different shops or different classes of shops or for different areas or for different
times of the year.
(5) The weekly day on which a shop is closed in pursuance of requirement under
subsection (3) shall be specified by the shop keeper in a notice permanently exhibited

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 in a conspicuous place in the shop, and shall not be altered by the shopkeeper more
often than once in three months.
(6) No deduction shall be made from the wage of any person employed in a shop on
account of any day or part of a day on which it has remained closed or a holiday has
been allowed in accordance with this section ; and if such person is employed on the
basis that he would not ordinarily receive wages for such day or part of a day, he shall
nonetheless be paid for such day or part of a day the wages he would have drawn, had
the shop not remained closed, or had the holiday not been allowed, on that day or part
of a day.

ESTABLISHMENTS OTHER THAN SHOPS

APPLICATION OF THIS CHAPTER TO ESTABLISHMENTS OTHER
THAN SHOPS:
The provisions of this chapter shall apply only to establishments other than shops.
OPENING AND CLOSING HOURS:
(1) Save as provided by or under any other enactment for the time being in force ,no
establishment shall be opened earlier or closed later than such hour as may be fixed
by the Government, by general or special order in that behalf: Provided that in the
case of a restaurant or eating house, any customer who was being served or was
waiting to be served therein at the hour fixed for the closing may be served during the
quarter of an hour immediately following such hour.
(2) Before passing an order under sub- section (1), the Government shall make an
inquiry in the prescribed manner
(3) The Government may, for the purposes of this section, fix different hours for
different hours for different establishments or for different areas or for different times
of the year

DAILY AND WEEKLY HOURS OF WORK:

(1) Subject to the provisions of this Act, no person employed in any establishment
shall be required or allowed to work for more than eight hours in any day and forty-
eight hours in any week: Provided that any such person may be allowed to work in
such establishment for any period in excess of the limit fixed under this sub- section
subject to payment of overtime wages, if the period of work, including overtime work,

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 does not exceed ten hours in any day and in the aggregate fifty- four hours in any
week
(2) No person employed in any establishment shall be required or allowed to work in
such establishment for more than four hours in any day unless he has had an interval
for rest of at least one hour.
SPREAD OVER OF PERIODS OF WORK:
The periods of work of a person employed in an establishment shall be so arranged
that along with his intervals for rest, they shall not spread over more than twelve hours in any
day.
HOLIDAYS:
(1) Every person employed in an establishment shall be allowed in each week a
holiday of one whole day: Provided that nothing in this sub- section shall apply to any
person whose total period of employment in the week, including any days spent on
authorized leave, is less than six days.
(2) The Government may, by notification, require in respect of any establishment or
any specified class of establishments, that every person employed therein shall be
allowed in each week an additional holiday of one half day commencing at such hour
in the afternoon as may be fixed by the Government
(3) The Government may, for the purposes of sub- section (2), fix different hours for
different classes of establishments or different classes of establishments or for
different areas or for different times of the year.
(4) No deduction shall be made from the wages of any person employed in an
establishment on account of any day or part of a day on which a holiday has been
allowed in accordance with this section; and if such person is employed on the basis
that he would not ordinarily receive wages for such day or part of a day, he shall non
ether less be paid for such day or part of a day the wages he would have drawn, had
the holiday not been allowed on that day or part of a day.
EMPLOYMENT OF CHILDREN AND YOUNG PERSONS CHILDREN
NOT TO WORK IN ESTABLISHMENTS:
No child shall be required or allowed to work in any establishment.
YOUNG PERSONS TO WORK ONLY BETWEEN 6 A.M. AND 7 P.M.:
No young person shall be required to work in any establishment before 6a.m. and
after 7 p.m.

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DAILY AND WEEKLY HOURS OF WORK FOR YOUNG PERSONS:
Notwithstanding anything contained in this Act, no young person shall be required or
allowed to work in any establishment for more than seven hours in any day and forty- two
hours in any week nor shall such person be allowed to work overtime.

APPOINTMENT, POWERS AND DUTIES OF INSPECTORS

Appointment of Inspectors
The State Government may, by notification, appoint such officers of the State
Government or of any local authority as they think fit to be Inspectors for the purposes of this
Act, within such local limits as the State government may assign to them.
Powers and duties of Inspectors
Any inspector at all reasonable hours enter into any premises, which is , or which he
has reason to believe is, an establishment, with such assistants and make such examination of
the premises and of the prescribed registers, records or notices as may be prescribed.
Inspectors to be public servants
Every Inspector shall be deemed to be a public servant within the meaning of Section
21of the Indian Penal Code.
PENALTIES
1) Any employer who contravenes any of the provisions of Section 7, 9 to 11, 13
to23, 25, 26, 29 to 41 and 47 shall be punishable for a first offence, with fine which
may extend to 25 rupees, and for a second or subsequent offence, with fine which
may extend to Rs.250.
2) Whoever contravenes the provisions of section 8 shall be punishable, for a 1st
offence, with fine which may extend to Rs. 10 and for a subsequent offence with fine
which may extend to Rs.100.

------------------------------------------------------------------------

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 III YEAR OF 3 YEAR LL.B
SEMESTER - V
ODD SEMESTER

Page 1 of 183
SUBJECT : TAXATION LAW
SUBJECT CODE : TA5E

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 SYLLABUS
TA5E - TAXATION LAW
Unit- I
General Principles of Taxation
(a) Definition- Concept- Purpose of Taxation-Nature and Characteristics of Taxation
Distinction between tax, fee and fine- Mutual relationship between Tax laws and
Finance Act (Amended Act) -Canons of Taxation- Kinds of Taxes- Progressive-
Proportional-Regressive and Digressive- Eminent Domain Principle- Theory and
Basis of Taxation-Scope and Limitations of Taxation- Inherent limitations-Requisites
of a Valid tax- Double taxation- Sec-90 and causes and Effects.

Unit -II
Constitutional basis and Taxing powers:
(a) Constitutional Taxing Powers- Constitutional Amendment 101- Amendment of
Art.246A- Amendment of Art.248A- Art.249 and Art.250– Art.243H-Art. 243Z-
Art.250 Art.268- Art.268-Art.269. Art.2694 - Amendment of Art.270-271-Art.279A-
Art.286 Amendment of Seventh Schedule- Art.366- Art.368- Amendment of Sixth
Schedule and Seventh schedule-Constitutional amendment 101- Art. 279 A- GST
Council- Constitutional Limitations. Significance of Union Territory Goods and
Services Act 2017- Significance of the Goods and Services Tax (Compensation to
States) Act 2017.
(b) Historical Development of Tax on supply of Goods and services -Exemptions to the
levy of Goods and Services Tax to petroleum products- alchoholic liquor for human
consumption- Powers of the GST Council to regulate these goods by notification.-
Present status of Central Sales Tax Act, 1957 and Central Excise Act-Customs Act
and Tamil Nadu Value Added Tax Act 2006.

Unit-III
Direct Taxation:
A) Income Tax Act 1961

Preliminary concepts; Income, 'Agricultural Income' Casual Income,' person – Assesses

Residential Status- Previous year- Assessment year - General Charging Section- and Specific
Charging Section- Income- Received- Arising - Accrual- Scope and Total Income –
Exempted Income : Tax Liability under Specific Heads i) Income from Salaries ii) Income
from House Property iii) Income from Business or Profession iv) Income from Capital Gains.
V) Income
from other sources : Clubbing of Income: Income of other persons in assesses total Income -
Treatment of Losses- Set off and carry forward of losses-Procedure for assessment-
Deduction allowed in certain cases- Chapter VI A Deductions- Assessment of Special Class
of Assesses.

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Unit -IV
Indirect Taxation:
C) The Taxation Laws (Amendment) Act, 2017. Customs- Customs tariff- Central excise -
Central Sales Tax- Miscellaneous - Schedule.
a) Central Goods and Services Tax Act,2017 – Definition clauses-Administration Levy
and Collection of Tax-Time and Value of Supply-Input Tax Credit-Registration-Tax
Invoice credit and debit notes.-Accounts and records-Returns- Payment of Tax-
Refunds Assessment- Audit-Inspection- Search Seizure and Arrest-Demands and
Recovery- Liability to pay in certain cases-Advance -Appeals and Revision-Offences
and Penalties
b) b). Tamil Nadu Goods and Services Tax Tamil Act,2017- Definition commencement-
Officers under the Act- Powers and functions-Levy and collection of Taxes Chap III-
XI scope of supply- Tax liability on composite and mixed supplies- Levy and
Collection-Composition Levy- Power to grant exemption from tax. Time and value of
supply input credit tax- Registration-Tax invoice – debit and credit notes- Accounts
and Records Returns- Payment of Tax – Refunds-Assessment - Audit- Inspection -
Search- Seizure and Arrest- Demands and Recovery- Liability to pay in certain cases-
Chap XII-XIX-Advance Ruling-Appeals and Revision-Offence and Penalties -
Transitional Provisions- Miscellaneous Provisions-Schedules.
c) Integrated General Services Tax and Rules of States an Union: Collection and Levy of
Integrated General Services Tax- Determination of Nature of Supply -Cross
Utilization of credit-Utilization of IGST credit. Inter- state supply and Intra-state
supply- Location of supply- Place of supply of goods and services or both. Refund of
integrated tax to International tourist.- Zero rated supply-Apportionment of tax and
settlement of funds-Miscellaneous Provisions.

UNIT- V
Customs Act -1962 with amendments -Role of customs in international trade important
terms and definitions, Assessable value Baggage – Bill of entry Dutiable goods Duty
Exporter – Foreign going vessel – Aircraft goods – import - import Manifest – Importer –
Prohibited goods – Shipping bill – Store – Bill of lading - export manifest - Letter of Credit –
Kinds of duties – Basics auxiliary - Basics of levy – Advalorem - Specific duties –
Prohibition of export and import of goods and provisions regarding notified and specified
goods – Import of goods - Free import and restricted imports - Type of import – import of
cargo, import of personal baggage, import of stores..

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Statutory Materials Relevant acts with amendments:
(Note: Students to prepare answer for illustrative problems)
Bare Acts of all statutory materials.
Wolters Kluwer Step by Step guide to GST
Wolters Kluwer GST Acts, Rules and Forms.
Sita Raman and Company GST Law and Practice.
Bharat GST rates of Tax and Compensation CES
Bharat Central GST Laws
Bharat GST Ready reckoner
Manoharan Income Tax Act
Indirect Taxes- V. Nagarajan
Singhanni Guide to Income Tax Act
Bhagawathi Prasad Income Tax Law and Practice
N.A.Phalkiwala- Income Tax
Sukumar Bhattacharya- Income Tax Law Practice
Background Material on GST Acts and Draft rules 2017
Indirect Taxation By Mohammed Rafi.
Black money undisclosed Foreign Income and Assets (Imposition of Tax) Act, 2015
Prevention of Corruption Act, 1947.

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 LECTURE NOTES

LAW OF TAXATION

UNIT – I

GENERAL PRINCIPLES OF TAXATION

DEFINITION OF TAXATION
Tax is compulsory contribution to State revenue, levied by the Government on
workers’ income and business profits, or added to the cost of some goods, services, and
transactions. It may be direct or indirect tax.
The taxes may be imposed on the income and wealth of the person or corporations
and rate of taxes may vary.
TAX & TAXATION
Tax has a limited meaning. It is the amount of tax levied/collected etc. by the
Government. Taxation is the process of tax collection. It covers all of the following: passing
of the law by the parliament, making of rules by the Government, entire set of people
appointed as tax commissioners, assessment, etc.
MEANING & DEFINITION OF TAX: ADAM SMITH
The tax revenue is the most important source of public revenue. A tax is a
compulsory payment levied by the government on individuals or companies to meet the
expenditure which is required for public welfare.
ORIGIN OF MODERN INDIAN TAXATION
In India, this tax was introduced for the first time in 1860, by Sir James Wilson in
order to meet the losses sustained by the Government on account of the Military Mutiny of
1857.
In 1918, a new income tax was passed and again it was replaced by another new act
which was passed in 1922. This Act remained in force up to the assessment year 1961-62
with numerous amendments.
In consultation with the Ministry of Law, finally the Income Tax Act, 1961 was
passed. The Income Tax Act 1961 has been brought into force from the 1st April 1962. It
applies to the whole of India and Sikkim (including Jammu and Kashmir). Since 1962 several
amendments of far-reaching nature have been made in the Income Tax Act by the Union
Budget every year.

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 Central Board of Revenue was bifurcated and a separate Board for Direct Taxes
known as Central Board of Direct Taxes (CBDT) constituted under the Central Board of
Revenue Act, 1963.
One of the major tax enactments in India is the: Income Tax Act, 1961 passed by the
Parliament, which imposes a tax on the income of persons.
NEED FOR TAXATION
 System of raising money to finance government
 All Governments require payments of money - taxes - from people
Governments use tax revenues to pay soldiers and police, to build dams and roads, to
operate schools and hospitals. To provide food to the poor, medical care to the elderly and for
the hundreds of other purposes. Without taxes to fund its activities, government could not
exist. Taxation is the most important source of revenues for modern governments, typically
accounting for 90 percent or more of their income.
PURPOSE OF TAXATION
 To stabilize the economy
 To protect the citizens
 To redistribute wealth from the rich to the poor
 To provide revenues for Government

WHY PAY TAXES?

 Everybody is obliged by law to pay taxes. Total Tax money goes to government
exchequer. Appointed government decides that how are taxes being spent and how
the budget is organized.
 Tax payment is not optional: an individual has to pay tax if his/her incoming is
coming under the income tax slab. It is a duty of every citizen to pay taxes. More
collection of tax allows the government to launch more and more welfare
schemes.
 To Provide Basic Facilities for Every Citizen of the Country: Whatever money
is received by the government in terms of direct tax and indirect tax is spent by it
for the welfare of the citizens of the country. Some of the services provided by the
government are: health care, electricity, roads, education system, free houses for
poor, water supply, police, fire-fighters, judiciary system, disaster relief, taking
care of bridges and other things of public welfare.

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  To Finance Multiple Governments: All the local government of the state like
village panchayats, block panchayats and municipal corporations receive fund
from the state finance commission.
 Protection of the Life: Tax payers receive the protection of life and wealth from
the government in case of external aggression, internal armed rebellion or any
other situation in exchange of tax paid by them.
CONCEPT OF TAXATION
Taxation is the inherent power of the state to impose and demand contribution upon
persons, properties, or rights for the purpose of generating revenues for public purposes.
Taxes are enforced proportional contributions from persons and property levied by the
law-making body of the State by virtue of its sovereignty for the support of the government
and all public needs.
NATURE OF TAXATION
1. Quid pro quo
2. Inherent power of sovereignty
3. Legislative in nature
4. Public purpose
5. Territorial in operation
6. Exemption of the government
7. Strongest among the inherent power of the state
8. Subject of constitutional and inherent powers.
Taxes are levied practically upon all persons in the community to cover the cost of the
services rendered by the State. A tax is a compulsory contribution which the citizens are
required to pay for the services rendered by a public authority.
The essence of a tax, as distinguished from other charges of government, is the
absence of a direct quid pro quo between the taxpayer and the public authority.
While levying a tax, it is not the intention of the government to render a service to the
tax payer equivalent to the amount of the tax paid by him. In other words, you cannot refuse
to pay a tax on the plea that you do not use a service.
Taxes are usually classified into direct or indirect, although these classifications are
sometimes overlapping and are not always mutually exclusive.
Direct taxes are those paid by the individual directly on the basis of his possession or
receipt of property. They may be based on real or personal property, tangible or intangible,
owned at a specified time, or received during a specified period.

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 Indirect taxes are those which are levied on particular articles, or transactions, and
which may be borne by others than those from whom the tax collector receives payment.
DIRECT TAXES
Direct tax is a tax, such as income tax, which is levied on the income or profits of the
person who pays it, rather than on goods or services. A direct tax is that tax whose burden is
borne by the same person on whom it is levied. The ultimate burden of taxation falls on the
person on whom the tax is levied. It is based on the income and property of a person.
EXAMPLES:
 CORPORATION TAX
 INCOME TAX
 WEALTH TAX (repealed)
 GIFT TAX (repealed)
 PROPERTY TAX

INDIRECT TAXES
Indirect tax is levied on goods and services rather than on income or profits. An
indirect tax is that which is initially paid by one individual, but the burden of which is passed
over to some other individual who ultimately bears it. It is levied on the expenditure of a
person.
EXAMPLES:
 EXCISE DUTY
 SALES TAX
 CUSTOM DUTIES
 VALUE ADDED TAX (VAT)
ESSENTIAL CHARACTERISTICS OF TAXATION
 It is an enforced contribution
 It is general payable in money
 It is proportionate in character, usually based on the ability to pay
 It is levied on persons and property within the jurisdiction of the State
 It is levied pursuant to legislative authority, the power to tax can only be exercised
by the law making body / Parliament / Legislative Assembly
 It is levied for public purpose
 It is commonly required to be paid at regular intervals

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THE DISTINCTION BETWEEN: TAX, FEE AND FINE
Tax, fees, duties, cess etc. are the revenues for the Government. In fact, they are the
oxygen to the Government. Without the income, by way to tax, fees, etc., no Government can
survive. More particularly, ours is the socialistic and welfare country. To achieve the goal of
socialism, and to implement the objects of the Constitution, the Governments (Central and
State) require huge money. Tax, fees, duties, cess, etc., are the proper means to procure
revenue. Part-XII of the Constitution lays down the provisions for the distribution of revenue
between Centre and States. No other federal countries have no such proper arrangements in
the world.
“Fine” shall be imposed on the defaulter, who fails to pay tax, fees, duty, cess, etc.
voluntarily or accidentally. Every statute imposing tax, fees, duties, cess, etc. imposes certain
fines on the defaulting parties, and also gives the time to pay within the period.
Certain Acts, Income Tax Act, Wealth Tax Act, etc. there are also severe
punishments, i.e. imposing imprisonment on the defaulter/wrong-doer. Fine serves as a check
valve and watch dog upon the assessee/person. It threats a person. It saves a person from
evading the payment of tax, fees, duties, cess, etc. who pays the tax, fees, etc. in time, no fine
shall be imposed.

Tax Fee
Compulsory payment to the Voluntary payment for getting a
government without getting any service.
direct benefits.
Common burden on the people. Not a common burden but a special
advantage.
No quid pro quo. Has quid pro quo.
Payment is made for a general Payment is made for a specific
purpose. purpose.
Eg: Income tax, GST etc Eg: Stamp fee, Driving license fee etc

A tax is a levy collected for general government services. A fee is levy collected to
provide a service that benefits the group of people from which the money is collected. A fine
is a levy collected with the express aim of deterring some kind of undesirable behaviour.
Our constitution has made a distinction between tax and fee in Sri
JagnathRamanujDas Vs State of Orissa. The court defined tax as a compulsory extraction
of money made without reference to any specific benefit and merged with the general

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revenue of the state and applied in general revenue for public purpose. On the other hand it
defined fee as a special service rendered for those who have paid.

TERMINOLOGIES CONNECTED WITH TAXATION:

Levy is not a tax as such but sometimes as a synonym for tax, cess, duty, fine etc
depends on the context
Tax refers to a specific percentage of money to be paid to the government from our
disposable income, Ex: GST, Income tax etc.
Duty refers to fine/fee paid on exports and imports. Ex: for import duty, last year
India imported more coal and steel inspire of having large reserves, because China was
selling at subsidised prices. To control the current account deficit India imposed anti dumping
duties.
Ex: for export duty, if the export of agriculture product is more such that it is creating stock
holding troubles in our country then duty is imposed to decrease the exports
Cessthis usually referred as tax on tax. This is levied as additional tax collected for a
specific purpose. Eg: Kristi vikascess, Education cess, swatch Bharat cess etc., the amount
collected from it will be utilized for the same purpose as the cess name. Amount collected is
sent to the Consolidated Fund of India and then sent to respective accounts. Types of cess are
as follows:
 Primary Education cess
 Secondary Education cess
 Cess on crude petroleum oil
 Rod cessetc
Eg: National Clean Energy Fund was created out of cess on coal produced in the country and
imported and used in Green India Mission and National Solar Mission.
Excise duty is a tax levied on manufactured good, as soon as the product is completed
and ready for supply excise duty is collected by the government and levied on manufacturer
Custom duty is a tax levied on goods/products imported. Ex: luxury cars, liquor,
crude oil etc.

MUTUAL RELATIONSHIP BETWEEN TAX LAWS AND FINANCE ACT:

INDIAN TAX LAWS
 Income Tax Act, 1961

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  Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax
Act, 2015
 Expenditure Tax Act, 1987
 Interest Tax Act, 1974
 Finance Acts (yearly)
 The Central Goods and Services Tax, 2017
 Integrated Goods and Services Tax, 2017
 UT Goods and Services Tax, 2017
 Goods and Services Tax (Compensation to States) Act, 2017
 Tamil Nadu Goods and Services Tax Act, 2017

DEFINITION OF FINANCE BILL

Definition: A Finance Bill is a Money Bill as defined in Article 110 of the
Constitution.
Description: The proposals of the government for levy of new taxes, modification of
the existing tax structure or continuance of the existing tax structure beyond the period
approved by Parliament are submitted to Parliament through this bill.
The Finance Bill is accompanied by a Memorandum containing explanations of the
provisions included in it. The Finance Bill can be introduced only in Lok Sabha.
However, the Rajya Sabha can recommend amendments in the Bill. The bill has to be passed
by the Parliament within 75 days of its introduction.
RELATIONSHIP BETWEEN TAXATION LAWS AND FINANCE ACT (AMENDED)
Finance Bill is presented usually in the last week of February every year and this bill
contains amendments in direct as well as indirect taxes. It is usually presented in the
Parliament by the Finance Minister.
The Finance Act contains necessary amendments in the direct taxes (e.g. income tax)
and indirect taxes (e.g. excise duties, custom duties and service tax) signifying the policy
decisions of the Union Government.
The Finance bill is passed by both the houses of Parliament after it is being tabled and
necessary recommendation / amendments have been made in it. Once this bill has been
passed by the Parliament, it goes to the President for his assent. After President’s assent, the
finance bill becomes the Finance Act.
The effective date of applicability of provisions of the Finance Act is usually
mentioned in the notification in the official gazette or in the Act itself. Generally, the

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amendments by the Finance Act are made applicable from the first day of the next financial
year e.g. generally, amendments by Finance Act, 2018 are effective from FY 2018-2019 and
AY 2019-2020 (FY: Financial Year; AY: Assessment Year).

INCOME TAX ACT AND FINANCE ACT:

Both the Income Tax Act and the Finance Act are closely related with each other. The
Income Act actually helps the citizens to fulfill the duty and responsibility with respect to
paying income tax. It helps people to calculate one’s taxable income. The Finance Act helps
the people to find out the rate of tax for the particular financial year.
One can understand the relationship between the Income Tax Act and the Finance Act
through the section 4 of the Income Tax Act, 1961:
Section 4: Charge of Income Tax:

(1) Where any Central Act enacts that income-tax shall be charged for any
assessment year at any rate or rates, income-tax at that rate or those rates shall be
charged for that year in accordance with, and subject to the provisions (including
provisions for the levy of additional income-tax) of, this Act in respect of the total
income of the previous year of every person

Provided that where by virtue of any provision of this Act income-tax is to be

charged in respect of the income of a period other than the previous year,
income-tax shall be charged accordingly.

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 (2) In respect of income chargeable under sub-section (1), income-tax shall be
deducted at the source or paid in advance, where it is so deductible or payable under
any provision of this Act.

In the above, the Central Act is the annual Finance Act. To summarise, the tax rate
must levied on the basis of the Central legislation viz., Finance Act.
So, one can say that the taxable income is arrived under the Income Tax Act, 1961 and the
rate of tax is arrived using the Finance Act. The Income Tax Act, 1961 says the taxable
income from different heads of income. The 1st Schedule of the Finance Act specified the rate
of tax for the taxable income. Every year’s Finance Act comprises the information like rate of
tax, tax rebates and tax deductions. Even some time, it also includes amendments in the
Income Tax Act, 1961 too.
The tax rates tend to change depending on the financial policy of the Government.
This is the reason that every financial year to decide on the tax rates, the Finance Act is
amended. The Income Tax Act, 1961 is not newly made on a yearly basis. If necessary, with
minor changes, it can be amended but not made as a new Act.
To levy and collect the taxes, both the Income Act, 1961 and the Finance Act have to
be implemented together. If any one of the law is not there then the collection of Income Tax
is not possible. Both are like the two sides of a coin. A coin is useless if it has got the print on
only one side of it. The same is the case with the Income Act, 1961 and the Finance Act for
the particular financial year.
The Finance Act should be made in such a way (for a particular year) that it must
come to force from 1st April of the same year. If not, then the lowest rate of tax would be
taken for calculating the Income tax comparing current Finance Bill rates with the last year
tax rate.
CANONS OF TAXATION
Canons (a general law, rule, principle, or criterion by which something is judge;
principle, rule, law, tenet, precept, formula) of taxation refer to the administrative aspects of
a tax.
They relate to the rate, amount, method of levy and collection of a tax.
In other words, the characteristics or qualities which a good tax should possess are described
as canons of taxation.

ADAM SMITH’S CANONS OF TAXATION

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 Canons of Taxation are the main basic principles (i.e. rules) set to build a 'Good Tax
System'.
Canons of Taxation were first originally laid down by economist Adam Smith in his
famous book “An Inquiry into the Nature and Causes of the Wealth of Nations (1776)“ a.k.a.
“Wealth of Nations”.
Adam Smith (18th Century) was a Scottish economist, philosopher and author as
author as well as a moral philosopher, a pioneer of political economy and a key figure during
the Scottish Enlightenment era. Smith is best known for his classic work: “An Inquiry into
the Nature and Causes of the Wealth of Nations (1776)”, is considered his magnum opus and
the first modern work of economics.
As the time changed, governance expanded and became much more complex than
what it was at the Adam Smith's time. Soon a need was felt by modern economists to expand
Smith's principles of taxation and as a response they put forward some additional modern
canons of taxation.
Adam Smith gave following four important canons of taxation:
1. CANON OF EQUITY
2. CANON OF CERTAINTY
3. CANON OF CONVENIENCE
4. CANON OF ECONOMY
1. CANON OF EQUITY
The principle aims at providing economic and social justice to the people.
According to this principle, every person should pay to the government depending upon his
ability to pay.
The rich class people should pay higher taxes to the government, Because without the
protection of the Government authorities (Police, Defence, etc.) they could not have earned
and enjoyed their income. Adam Smith argued that the taxes should be proportional to
income, i.e., citizens should pay the taxes in proportion to the revenue which they respectively
enjoy under the protection of the state. This principle is also known as the canon of ability.
2. CANON OF CERTAINTY
According to Adam Smith, the tax which an individual has to pay should be certain,
not arbitrary. The tax payer should know in advance how much tax he has to pay, at what
time he has to pay the tax, and in what form the tax is to be paid to the government.

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 At the same time a good tax system also ensures that the government is also certain
about the amount that will be collected by way of tax. The application of this principle is
beneficial both to the government and as well as to the tax payer.
3. CANON OF CONVENIENCE
The mode and timing of tax payment should be as far as possible, convenient to the
tax payers. For example, land revenue is collected at time of harvest and income tax is
deducted at source.
Convenient tax system will encourage people to pay tax and will increase tax revenue.
This principle is also known as ‘the pay as you earn method’.
4. CANON OF ECONOMY
This principle states that there should be economy in tax administration. The cost of
tax collection should be lower than the amount of tax collected. It may not serve any
purpose, if the taxes imposed are widespread but are difficult to administer. Therefore, it
would make no sense to impose certain taxes, if it is difficult to administer.
In other words, every tax has a cost of collection. The canon of economy implies that
the cost of tax collection should be minimum.

ADDITIONAL CANONS OF TAXATION

Activities and functions of the government have increased significantly since Adam
Smith's time. Government are expected to maintain economic stability, full employment,
reduce income inequality & promote growth and development. Tax system should be such
that it meets the requirements of growing state activities.
Accordingly, modern economists gave following additional canons of taxation.
1) Canon of Productivity
2) Canon of Elasticity
3) Canon of Flexibility
4) Canon of Simplicity
5) Canon of Diversity
6) Canon of Expediency

CANON OF PRODUCTIVITY
It is also known as the canon of fiscal adequacy. According to this principle, the tax
system should be able to yield enough revenue for the treasury and the government
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should have no need to resort to deficit financing. This is a good principle to follow in a
developing economy.
CANON OF ELASTICITY
According to this canon, every tax imposed by the government should be elastic in
nature. In other words, the income from tax should be capable of increasing or decreasing
according to the requirement of the country. For example, if the government needs more
income at time of crisis, the tax should be capable of yielding more income through increase
in its rate.
CANON OF FLEXIBILITY
It should be easily possible for the authorities to revise the tax structure both with
respect to its coverage and rates, to suit the changing requirements of the economy. With
changing time and conditions the tax system needs to be changed without much
difficulty. The tax system must be flexible and not rigid.
CANON OF SIMPLICITY
The tax system should not be complicated. It should be simple and easy to
comprehend. That makes it difficult to understand and administer and results in problems of
interpretation and disputes.
CANON OF DIVERSITY
This principle states that the government should collect taxes from different
sources rather than concentrating on a single source of tax. It is not advisable for the
government to depend upon a single source of tax, it may result in inequity to the certain
section of the society; uncertainty for the government to raise funds. If the tax revenue comes
from diversified source, then any reduction in tax revenue on account of any one cause is
bound to be small.

CANON OF EXPEDIENCY
This suggests that a tax should be determined on the ground of its economic, social
and political expediency (the quality of being convenient and practical despite possibly
being improper or immoral; convenience). For instance, a tax on agricultural income lacks

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social, political or administrative expediency in India and that is why the government of India
had to discontinue it.
CHARACTERISTICS OF CANONS OF TAXATION
A good (may be a near-ideal) tax system has to fulfil the following
characteristics:
The distribution of tax burden should be equitable such that every person is made to
pay his ‘fair share’. This is known as the ‘fairness’ criterion which focuses on horizontal
equity and vertical equity.
But equity must not hamper productive efficiency such that burdens should be
provided to correct inefficiencies. This ‘efficiency’ criterion says that it should raise revenue
with the least costs to the taxpayers so that tax system can allocate resources without
distortion.
The two other criteria are: ‘flexibility’ and ‘transparency’.
A good tax system demands changes in tax rates whenever circumstances change the
system. Further, a good tax must be transparent in the sense that taxpayers should know what
they are paying for the services they are getting.
A good tax system is expected to facilitate the use of fiscal policy to achieve the goals
of:
o stability
o economic growth.
From the above discussion, it follows that taxation serves the following purposes:
 To raise revenue for the government
 To redistribute income and wealth from the rich to the poor people
 To protect domestic industries from foreign competition
 To promote social welfare.
EQUITY IN TAXATION
Equity in taxation refers to fairness or justice in the distribution of the tax burden.
Since taxation implies a burden or sacrifice on the part of the tax payer, modern economists
put great emphasis on justice in taxation and state that taxation should be based on the
principle of equity so that direct money burden as well as real burden should be distributed in
a just manner.
The concept of equity has two notions:
 Horizontal equity and

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  Vertical equity.
Horizontal equity— equals should pay equal taxes; and
Vertical equity—un-equals should pay unequal taxes. That is to say, rich people
should pay more taxes.
Horizontal equity suggests that in the matter of taxation, equal treatment should be
meted out to people in equal economic circumstances, which means that they should pay
equal amount of taxes.
Vertical equity means that unequally placed persons should be treated unequally, thus,
economically better placed people should pay more taxes than others.
However, any attempt to achieve vertical and horizontal equity simultaneously is not
at all an easy task and can lead to ludicrous (so foolish, unreasonable, or out of place as to be
amusing) results.

KINDS OF TAX SYSTEM

On the basis of degree of progression of tax, it may be classified into:
 Proportional tax
 Progressive tax
 Regressive tax
 Digressive tax
Proportional Taxation:
A tax is called proportional when the rate of taxation remains constant as the income
of the tax payer increases. In this system all incomes are taxed at a single uniform rate,
irrespective of whether tax payer’s income is high or low. The tax liability increases in
absolute terms, but the proportion of income taxed remains the same.
Progressive Taxation:
When the rate of taxation increases as the tax payer’s income increases, it is called
progressive tax. In this system, the rate of tax goes on increasing with every increase in
income.

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 Schedule of Proportional and Progressive Tax Rates

Proportional Progressive

Tax Rate Amount of Tax Rate Amount of

Tax Base (Y)
(R) Tax (T) (R) Tax (T)
(₹.)
(%) (₹.) (%) (₹.)

1,000 10 100 10 100

2,000 10 120 15 130
3,000 10 130 25 750

Regressive Taxation:
It is one in which the rate of taxation decreases as the tax payer’s income
increases. Lower income is taxed at a higher rate, whereas higher income is taxed at a lower
rate. However absolute tax liability may increase.
Digressive Taxation:
When the rate of progression in taxation does not increase in the same proportion as
the increase in income. In this case, the rate of tax increases up to a certain limit, after
that a uniform rate is charged. Thus digressive tax is a combination of progressive and
proportional taxation. This type of income is often used in the case of income tax in India.
Schedule of Regressive and Digressive Tax Rates

Tax Base (Y) Regressive Digressive

(₹.)
Tax Rate Amount of Tax Rate Amount of
(R) Tax (T) (R) Tax (T)
(%) (₹.) (%) (₹.)
1,000 10 100 5 50
2,000 8 160 6 120
3,000 6 180 7 210
4,000 5 200 7 280

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INHERENT POWERS OF THE GOVT.
 POWER OF EMINENT DOMAIN
 POLICE POWER
 POWER OF TAXATION
POWER OF EMINENT DOMAIN
Eminent domain is the right or power of a sovereign state to appropriate private
property to particular uses to promote public welfare. It is an indispensable attribute of
sovereignty; a power grounded in the primary duty of government to serve the common need
and advance the general welfare.
POLICE POWER
It is the power of the government to regulate behaviors and enforce order within its
territory, often framed in terms of public welfare, security, health, and safety.
The exercise of police power can be in the form of making laws, compelling obedience to
those laws through physical means with the aim of removing liberty, legal sanctions, or other
forms of coercion and inducements.
POWER OF TAXATION
It is the power to impose and collect taxes and charges on individuals, goods,
services, and other to support the operation of the government.
EMINENT DOMAIN PRINCIPLE
Initially according to this Principle, without any compensation the State can acquire
individual’s property without any compensation but later compensation was made mandatory.
This principle was followed for the public purpose wherein the land was acquired from the
public.
The Land Acquisition Act was made under this Principle.
It is the power of a state, provincial, or national government to take private property
for public use. However, this power can be legislatively delegated by the state to
municipalities, govt subdivisions, or even to private persons or corporations, when they are
authorized by the legislature to exercise the functions of public character.
The Eminent Domain Principle is based on the following two legal maxims:
Legal maxim: “Salus populi Supreme lex”
The welfare for the people is the paramount law.
Legal maxim: “ Necessita major estquam”
Public necessity is greater than the private necessity.

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 TAXATION & EMINENT DOMAIN PRINCIPLE
Similarities:
Both are inherent powers of the Government which emanate from the sovereignty of
the nation. Both powers are used against the property of the people.
Differences:

TAXATION EMINENT DOMAIN

No power to tax on those people below No exemption.

taxable level.

It’s a legal right; on both the movable and It’s a sovereign right (inherent power); on
immovable property. immovable property (like land & building).

It’s to levy and collect tax. It’s to acquire property.

The Government need not pay compensation Here, while the land / building is acquired
to those who lose property as part of paying then compensation is mandatory.
tax.

THEORY AND BASIS OF TAXATION

The power of taxation proceeds upon the theory that the existence of the government
is a necessity, that it cannot continue without means to pay its expenses and that for this
means it has a right to compel all its citizens and property within its limits to contribute.
The basis is the reciprocal duties of protection and support between the State and its
inhabitants. The State collects taxes from the subjects of taxation in order that it may be able
to perform the functions of government.
The citizens, on the other hand, pay taxes in order that they may be secured in the
enjoyment of the benefits of organized society.
1) LIFE BLOOD THEORY
2) NECESSITY THEORY
3) BENEFITS PROTECTION THEORY
4) JURISDICTION THEORY
LIFEBLOOD THEORY

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 Taxes are the lifeblood of the government, being such, their prompt and certain
availability is an imperious need.
Without taxes, the government would be paralyzed for lack of motive power to activate and
operate it.
Analogy*: Human body - blood / oxygen - life
*a comparison between one thing and another, typically for the purpose of explanation or
clarification.
NECESSITY THEORY
Taxation is a power predicated upon necessity.
It is a necessary burden to preserve the State’s sovereignty and a means to give the
citizenry : an army to resist aggression, a navy to defend its shores from invasion, a corps of
civil servants to serve, public improvements for the enjoyment of the citizenry, facilities and
protection which a government is supposed to provide.
BENEFITS PROTECTION THEORY
This theory bases the power of the State to demand and receive taxes on the reciprocal
duties of support and protection.
The citizen supports the State by paying the portion from his property that is
demanded in order that he may, by means thereof, be secured in the enjoyment of the benefits
of an organized society.
Thus, the taxpayer cannot question the validity of the tax law on the ground that
payment of such tax will render him impoverished, or lessen his financial or social standing,
because the obligation to pay taxes is involuntary and compulsory, in exchange for the
protection and benefits one receives from the government.
JURISDICTION THEORY
This theory bases the power of the State to demand and receive taxes on the reciprocal duties
of support and protection. The citizen supports the State by paying the portion from his
property that is demanded in order that he may, by means thereof, be secured in the
enjoyment of the benefits of an organized society.
Thus, the taxpayer cannot question the validity of the tax law on the ground that payment of
such tax will render him impoverished, or lessen his financial or social standing, because the
obligation to pay taxes is involuntary and compulsory, in exchange for the protection and
benefits one receives from the government.
SCOPE OF TAXATION
1. Comprehensive

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2. Unlimited
3. Supreme Power
4. Plenary

1. Comprehensive:
The Government can levy tax to its people within the territorial jurisdiction. The
levying of tax can be on any category of income and expenditure.
2. Unlimited:
The sovereign power of the Government is sky high and none can question the taxing
power.
3. Supreme Power:
As the power emanates from sovereignty, it is supreme power. The people and the
property are under the control of the taxing power.
4. Plenary:
The taxing power is absolute and unlimited. No power can control it. Even the
judiciary can’t control it as it’s an absolute power.
LIMITATIONS ON TAXING POWER
INHERENT LIMITATIONS OF TAXATION
CONSTITUTIONAL LIMITATIONS
INHERENT LIMITATIONS OF TAXATION
Purpose. Taxes may be levied only for public purpose;
Territoriality. The State may tax persons and properties under its jurisdiction;
International Comity*. the property of a foreign State may not be taxed by another
(*an association of nations for their mutual benefit).
Exemption. Government agencies performing governmental functions are exempt from
taxation
Non-delegation. The power to tax being legislative in nature may not be delegated.
REQUISITES OF A VALID TAX
 It should be for a public purpose,
 The rule of taxation shall be uniform,
 Either the person or property taxed be within the jurisdiction of the taxing authority,
 That the assessment and collection of certain kinds of taxes guaranteed against
injustice to individuals, especially by way of notice and opportunity for hearing be
provided.

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  That the tax must not impinge on the inherent and constitutional limitations on the
power of taxation.
INTERNATIONAL TAXATION
What is International Taxation?
It refers to tax levied on the cross-border transaction. The transaction mat take place
between two or more persons on entity in two or more countries or tax jurisdiction. Such a
transaction may involve a person in one country with property and income flows in another.
Earnings are not restricted to national boundaries.
TYPES OF INTERNATIONAL TAXATION:
Residence Based Taxation: residents of the country are taxed on their worldwide (local and
foreign) income.
Source Based Taxation: only local income from a source inside the country is taxed. Usually
non-residents are taxed only on their local income.
CONFLICT BETWEEN RESIDENCE – RESIDENCE
Based on the residence, two countries can levy tax on conflicting laws. If a Govt.,
Organization registered in a country, based on residence, tax can be levied and on the grounds
of administrative control in another country, the tax can be levied on the same income

CONFLICT BETWEEN SOURCE - RESIDENCE

On the basis of one country’s residence (theory of residence), taxation can be levied
and on the basis of another country’s source (theory of source), tax can be levied on the same
income.
Ex: An organization is resident in country “A” can earn income through their business in
country “B”. The respective countries can levy tax which leads to double taxation.
TRIANGULAR CONFLICT
In country “A” a company is registered and resident has a branch office in country
“B” and throughout earns income in country “C”. Here on the grounds of the tax laws in
these three counties, tax can be levied. This is another situation of double taxation.
DOUBLE TAXATION
The transaction taking place in more than one country such a transaction may be
subject to more than one tax authorities or taxed twice by same or different tax authorities
such taxation is referred to as “double taxation”.
Such a factor can impair the economic development of a person or entity, therefore avoidance
of double taxation is required.

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ELIMINATION OF INTERNATIONAL DOUBLE TAXATION
To reduce the impact of double taxation, three methods can be followed:
 Unilateral Attempt
 Bilateral treaties
 Multilateral treaties
Unilateral Attempt
A nation on its own taking necessary steps to stop situations arising double taxation
Bilateral Treaties
Countries involved in International trade and commerce having bilateral trade
agreements. This is a widely followed method these days.
Multilateral Treaties
More than two countries join together and have agreements form this multilateral
treaty. This kind of arrangement needs to have model conventions like the OECD Model
Convention.
DOUBLE TAXATION AVOIDANCE AGREEMENT (DTAA)
To avoid the incidence of double taxation: DTAA, i.e., Double Taxation Avoidance
Agreement among countries are signed. There are treaty models on which the agreements are
drafted such as the OECD model (Organization for Economic Co-operation and
Development) and UN Model. Double Tax Avoidance Agreement is classified on the basis
of:
SCOPE
Comprehensive: The taxes on income and capital gains. The taxpayers in both the
countries would be treated equally in respect of issues related to double taxation.
Limited: The specified limit to the tax on income from shipping, air, transport or estates,
inheritance and gifts.
WHY DOUBLE TAX AVOIDANCE AGREEEMTN (DTAA)
 Free flow of International trade and investment
 Protection against double taxation
 Prevent discrimination between tax payers
 Mutual exchange of information
 Legal and fiscal certainty
 Acceptable basis to share tax revenue between states
 Encourage transfer of technology
 Encourage settlement of international disputes by arbitration

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TREATY OVERRIDE
The DTAA override the provisions of the domestic statute. Moreover, with the
insertion of
Sec. 90(2) in the Income Tax Act, 1961:
“Assessee can avail benefit of bilateral agreements between contracting state;
OR
Assessee can choose to be governed by Indian tax laws”
Whichever is more beneficial to tax-payer!!
TYPES OF DOUBLE TAXATION
 JURIDICAL DOUBLE TAXATION
 ECONOMIC DOUBLE TAXATION
JURIDICAL DOUBLE TAXATION
The imposition of comparable taxes in two (or more) States on the same tax payer in
respect of the same subject matter and for identical periods
ECONOMIC DOUBLE TAXATION
This is the situation that arises when the same economic transaction or asset is taxed
in two or more States during the same period, but to different taxpayers. Economic double
taxation takes place if assets are attributed to different persons by the domestic law of the
States involved.
This dichotomy occurs when the tax law of the other State attributes the asset to its
legal owner while the tax law of the other State attributes it to the person in possession or
control.
TAXABILITY OF FOREIGN INCOME
India has signed DTAA with 88 countries, out of which 85 have been entered into force
which specifies the agreed rates of tax and jurisdiction on Specific types of incomes levied in
a country to a tax resident of another country. The income earned outside India will be subject
to taxes on the basis of residential status.
RELIEF TO THE TAX PAYER
Under the Income Tax Act, 1961, there are two provisions, Section 90 and Section 91,
which provide specific relief to taxpayers to save them from double taxation.
Section 90 (Bilateral Relief) isfor taxpayers who have paid the tax to a country with
which India has signed DTAA.

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 Section 91 (Unilateral relief) provides benefit to tax payers who have paid tax to a
country with which India has not signed a DTAA.
India gives relief to both kinds of taxpayers. The rates differ from country to country.
Example of DTAA benefit. If suppose interest on NRI bank deposits attracts 30 per cent TDS
(tax deduction at source) in India And since India has signed DTAAs with several countries,
so tax may be deducted at only 10 to 15 per cent instead of 30%.
It is to be noted that in case of any conflict between the provisions of the Income Tax
Act or DTAA, the provisions of DTAA would prevail.
SEC. 90 OF THE INCOME TAX ACT, 1961
The Central govt., may enter into an agreement with the govt., of any country outside
India:
For the granting of relief or For the avoidance of double taxation of income For the
prevention of evasion or avoidance of income tax for recovery of income tax. Where the
Central Government has entered into an agreement, under sub-section (1) for granting relief
of tax then the provisions of this Act shall apply to the extent they are more beneficial to that
assesse.
SEC. 91 OF THE INCOME TAX ACT, 1961
Requirements:
 There is no DTAA with that country
 Income has accrued or arisen outside India and is double taxed
 Taxes has been paid in the source country
 Items of Income not covered under DTAA eligible for credit
SEC. 91 OF THE INCOME TAX ACT, 1961
Reliefs:
Deduction from the Indian income-tax payable by him of a sum calculated on: such
doubly taxed income at the Indian rate of tax, or the rate of tax of the said country, whichever
is lower, or The Indian rate of tax if both the tax rates are equal.
PURPOSE OF MODEL COMMENTARIES
 Draft template to form treaties
 Standardize concepts, regulations and
 Interpretations
 Settle problems universally arising from
 Treaties
 Guide to Interpretation of Treaties

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ELIMINATION OF DOUBLE TAXATION AS PER DTAA
OECD Model Convention – Art. 23
It deals with the tax relief from double taxation where the same income or capital is
taxed by more than one State under the treaty As the prior taxing rights remain with the
source State, the relief provisions apply to the residence State only.
OECD Model Convention – Art. 23
Residence State to elect from the following methods:
Exemption Method (Art. 23A) which considers ‘income’
Credit Method (Art. 23B) which considers ‘tax’
A contracting State may also use a combination of the two methods
CONVENTIONS
OECD Model Convention:
Encouraged by its success and the prospect of carrying its work forward on the global
stage, Canada and US joined and in 1961, OECD was launched when a model convention
was launched and agreed to between all the member nations.
A platform for different governments to share experiences and seek solutions to share
common problems.
UN Model Convention:
In 1960s, the developing countries felt that the provisions of the OECD model were
more favourable to developed nations as the main base of the OECD Model is Source based
taxation rather than the Residence based Taxation.
The developing countries together formed a UN Model convention for the benefit of the
developing countries.
Vienna Convention:
It was drafted by the International Law Convention of the UN. This applies only to
treaties entered into between States. It came to force in 1980.
This Convention comprises of provision which are used for interpretation of law of treaties
between governments. This helps in interpretation of the treaty.
SOLUTION FOR THE PROBLEM FOR INTERNATIONAL DOUBLE TAXATION
Through the help Model Conventions, there are two ways of solution:
Firstly, specifying clearly about which country would levy tax is there arises a
situation of double tax. Mostly, the residential State is given the right to tax. Through the
problem of double tax is solved

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 Secondly, both the Countries can levy taxes but the Residential State can provide the
Tax Relief and through this the burden of double taxation is reduced.
OECD GUIDELINES
Code of Conduct for Multi National Enterprises while undergoing International trade,
commerce & investment:
1) Human Rights,
2) Employment and Industrial Relations,
3) Environment,
4) Combating Bribery,
5) Consumer Interests,
6) Science and Technology
7) Competition
8) Taxation
These are advisory in nature and do not have legal control.
CHAPTER X OF OECD GUIDELINES: OECD GUIDELINES REGARDING
TAXATION
It is important that enterprises contribute to the public finances of host countries by making
timely payment of their tax liabilities.
In particular, enterprises should comply with the tax laws and regulations in all
countries in which they operate and should exert every effort to act in accordance with both
the letter and spirit of those laws and regulations.
This would include such measures as providing to the relevant authorities the
information necessary for the correct determination of taxes to be assessed in connection with
their operations and conforming transfer pricing practices to the arm’s length principle.
OECD Model Convention:
Also known as OECD Model Tax Convention. It is an accord reached between
member states of the OECD. It serves as a guideline for establishing tax agreements. The
convention consists of articles, commentaries, position statements and special reports on
evolving tax issues. Its primary application is in guiding the negotiation of bilateral treaties
between two or more countries.
BLACK MONEY: CASUSE AND EFFECTS
CAUSES:

1. HIGH RATE OF TAX:

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 An unrealistic and disproportionate increase in taxes and duties compel some people
to evade tax and accumulate black money. As per the present rule [2017-18] the tax free
income limit is fixed at Rs. 20,800/-.
It is a known fact that no one can run his family smoothly in this age of inflation
within this limit of about Rs. 20,800/-. A mason, a carpenter, a plumber, a painter earns about
Rs. 250/- to Rs.500/- per day in a city.
The yearly income of these people ranges between Rs. 90,000/- to Rs. 1,80,000/-. But
they rarely file their income tax returns and pay their taxes. Similarly, doctors, advocates,
charted accountants, who earn a few lakhs of rupees normally hide their real income to
escape paying income tax between 50% and 70% of the total income. There is an argument
that if income tax is reduced there is less likelihood of hiding the income and paying more
tax.
2. DIFFERENT RATES OF EXCISE DUTY:
The Government has fixed different rates of excise duty. On the basis of the quality,
the products [such as paints, pipes, textiles, electric wires, etc.] are classified into different
grades, and tax duties are levied on the basis of the classification made by the manufacturer.
Manufacturers, sometimes downgrade a product to pay lower rates of excise, which will help
generate black money.
3. PRICE-CONTROL POLICY OF GOVERNMENT:
The Government often regulates the prices of some commodities [such as sugar,
cement, steel, paper, vanaspati, automobile tyres, fertilizers, etc.] by following what is known
as “price-control policy”. Since this policy is comparatively rigid it does not take into account
the ups and downs in the market due to the interplay of demand and supply. The private
manufacturer and merchants take undue advantage of this policy and resort to hoarding,
fraud, artificial scarcity, etc., which will result in black money.
4. INFLATION:
Inflationary situation is said to be one of the causes of balck money. In this situation,
the prices of certain commodities [like petrol] go up and moneyed people start spending their
unaccounted money. They may also divert resources from production to speculation. This
will cause inflation.
5. QUOTA SYSTEM AND SCARCITY:
The Government has fixed quota for import, export and foreign exchange. This quota
system is misused to make black money.

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When there arises a scarcity of essential goods people are complied to pay more for them
than the controlled prices. This gives scope for black money. For example, people are paying
now more money than what is fixed as its price for kerosene oil due to its scarcity. The extra
payment made by the customer will add to the black money.
6. ELECTIONS IN A DEMOCRATIC SYSTEM:
Elections are a part of the democratic process. Electioneering has become a costly
affair today. Hence the candidates contesting for elections are bound to spend more than what
is legally permissible for them. These elections are generally financed by the black money
holders.
There is an unholy alliance between the political parties and the business tycoons.
These business oriented black money holders expect political patronage and economic
concessions. They obtain such concessions from the political leaders by paying them heavy
donations through black money. The concessions will help them to generate more and more
black money.
7. REAL ESTATE TRANSACTIONS:
People amass black money through real estate transactions. Purchasing a house and/or
land at a cheaper rate and selling it at a higher rate by manipulating to pay very less stamp
duty has become a profitable business in all major towns and cities. This is also an important
source of black money.
EFFECTS

Generalisation of black money in society will have adverse economic as well as social
consequences. Black money damans the economic mental programmes and plans. Due to tax
evasion the exchequer loses huge amount of money which could have been used for
developmental activities. It adds to inflation and the government loses its control over the
economy. It contributes to economic instability.
The social consequences of black money are also severe. It increases social inequality,
creates frustrations among honest people, increases crimes like smuggling, bribery, etc. The
government may not get enough revenue to undertake social service programmes for the
uplift of the poor and downtrodden.
It leads to shifts in income and wealth. It is assumed that black money is mostly
transferred from low income groups to the relatively large income groups. It appears that
there would be a net loss of money to the poorer sections through black money. Needless to

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say it contributes to unemployment and poverty. The effects of Black Money is summarized
as follows:
1. Growth of economic dualism,
2. Under-estimation of the true size of the economy,
3. Tax evasion, thereby loss of revenue to government,
4. Undermining equity,
5. Widening gap between the rich and poor,
6. Lavish consumption spending,
7. Distortion of production pattern,
8. Distribution of scarce resources,
9. Deterioration of general moral standards of the society,
10. Effects on production.
1. DUAL ECONOMY
The increase in the amount of black money in India over a period of time lead to the
perpetual growth of economic dualism which consists of Parallel economy (black money
economy) operating side by side with the Official or Reported economy on the country.
The black economy represents not less than one fifth of the aggregate economic transactions.
There is also interaction between the reported and unreported activities such that it is difficult
to identify black money from the white money economy. Such a Parallel Economy will ruin
the entire economic development of the country.

2. UNDER-ESTIMATION
A large underground economy and growth of black income lead to under-estimation
of the true size and incorrect picture of the economy by the officially complied national
income data.
Since unreported economy is apparently excluded from the official records of the
Gross National Product, the estimates of savings and consumption of nations to the national
income and measurement of other macroeconomic variables would be biased and misleading
for accurate policy making and planning considerations.
3. LOSS OF REVENUE TO THE GOVERNMENT
Black money is largely attributed to tax evasion. Its direct impact is the loss of the
Government revenue. Since the Government fails to get sufficient tax revenue due to large-
scale tax evasion, it is forced to resort to high taxation and deficit financing which again carry
their ill-economic effects.

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4. UNDERMINING THE EQUITY
When the Government resorts to progressive direct taxation to maintain equity in the
distribution of the tax burden, the tax evasion and growth of black money affect the very
concept of social justice by not allowing the desirable reduction in inequalities of incomes.
Again, when underground activities like smuggling etc. could not be taxed, the Government
will impose higher taxes on officially sanctioned activities.
Further, the tax evasion will also equally enjoy the public services without paying the due
contribution; to that extent also social enquiry is undermined. The honest have to bear high
tax burden to make up for the deficit in revenue caused by the tax evasion of black money
makers.

5. WIDENING THE GAP BETWEEN THE RICH AND THE POOR

Growth of the black economy causes regressive distribution of income in the society.
When the black money grows faster, rich becomes richer and the poor become poorer. By
way of concentration of income and wealth in few hands, the black money widens the gap
between the rich and the poor.
6. LAVISH CONSUMPTION SPENDING
Black money is disposed off by lavish spending on travels and tours, entertainment,
ostentatious articles, financing of extravagant elections etc. This has also lead to many social
evils and deteriorated the values of life of the common people.
7. DISTORTION OF PRODUCTION PATTERN
The black money has altered the choice coefficients in the market in favor of luxuries,
which lead to the diversification of productive resources from essential goods to the non-
essential goods.
8. DISTRIBUTION OF SCARCE RESOURCES
Black money holders are always in a position to put their prior claim over the scarce
goods in the market due to their readiness and ability to pay more, thereby depriving the
honest and poor people from their legitimate share. This obviously reduces the net economic
welfare of the Indian society at large.
9. DETERIORATE THE GENERAL MORAL STANDARDS OF THE SOCIETY
Black money is largely responsible for the deterioration of general moral standards of
the society. Black income generation implies a deviation from the accepted norms in society
and from the point of view of the society is unethical.

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Socially, we can say that the structure and ethos of a society undergoes a massive change.
Social values of honesty, hard work, thrift and simplicity get eroded. Even the political
institutions and organizations lose their credibility as they also gradually become a part of the
entire system of black income generation.
10. AVERAGE EFFECT ON PRODUCTION
As a consequence, the consumption pattern is titled in favor of the rich and elite, at
the cost of encouraging production of articles of mass consumption. A rise in overall
consumption leaves fewer resources for investment in priority areas, having an adverse effect
on production.

LAW OF TAXATION

UNIT II

CONSTITUTIONAL BASIS AND TAXING POWERS

CONSTITUTIONAL LIMITATIONS

 No tax shall be levied or collected except by authority of law [Art. 265]

Case Laws:
 M/s Chootabhai V. UOI, AIR 1962 SC 1006
 Synthetics and Chemicals Ltd. Vs. State of U.P., AIR 1990 SC 1927
 Balmukund Acharya vs DCIT, CIT and UOI 310 ITR 310 (Bom)
 Sanchit Software & Solutions (P.) Ltd. vs CIT [2012] 349 ITR 404
(Bombay)
 The State shall not make any law which takes away or abridges the fundamental rights
[Art. 13 (2)]
 The State shall not impose unfair restrictions on the right to practice any profession,
or to carry on any occupation, trade or business [Art. 19 (1) (g)]
 There should be equality and equity [Art. 14]
 No person shall be compelled to pay any taxes, the proceeds of which are specifically
appropriated in payment of expenses for the promotion or maintenance of any
particular religion or religious denomination. [Art. 27]

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  The property of the Union shall, save in so far as Parliament may by law otherwise
provide, be exempt from all taxes imposed by a State or by any authority within a
State. [Art. 285]
 The property and income of a State shall be exempt from Union taxation. [Art. 289]
 The levying of tax should not affect trade, commerce and intercourse (dealing
between groups) throughout the territory of India [Art. 301]
CONSTITUTIONAL TAXING POWERS:

Article 265: Taxes not to be imposed save by authority of law No tax shall be levied
or collected except by authority of law

Article 246 of the Constitution of India gives law making powers upon some specific
subjects to the parliament and state legislatures of our country.

Article 246(1): Parliament has absolute authority to make laws in respect to any
matters in List I (Union List).

Article 246 (3): Subject to clauses (1) and (2), the Legislature of any State has
exclusive power to make laws for such State or any part thereof with respect to any of the
matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the
"State List").

Parliament has restrictive forces to make laws in regard of issues given in Union List
and State Government hasthe elite locale to enact on the issues containing in State List.

There is yet another rundown i.e List III (called simultaneous rundown) in the
Seventh Schedule to theConstitution. In regard of the issues contained in List III both the
Central Government and State Governmentscan practice forces to enact. If there should arise
an occurrence of Union Territories Union Government canmake laws in regard of the
considerable number of passages in all the three records.

Rundown III of Seventh Schedule (i.e Concurrent rundown) incorporates sections like
Criminal law andProcedure, Trust and Trustees, Civil Procedures, financial and social
arranging, exchange unions, altruisticfoundations, value control industrial facilities, and so
forth. There is no Entry as to tax, in the Concurrent List; itonly contains an Entry relating to
levy fees in respect of matters specified in List III other than court-fees.In order to determine
whether a tax was within the legislative competence of the legislature which imposed it, it
isnecessary to determine the nature of the tax, whether it is a tax on income, property,

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business or the like so thatthe Entry under which the legislative power has been assumed
could be ascertained.

On the off chance that there is a contention between the laws enacted by State
Government and CentralGovernment in regard of passages contained in Concurrent rundown,
law made by Union Government wins.However, there is one exemption to this administer, if
law made by State contains any arrangement disgusting toprior law made by Parliament, law
made by State Government wins, on the off chance that it has gotten consentof President.
Indeed, even in such cases, Parliament can influence crisp law and change, to rescind or
fluctuatelaw made by State.

Presently gives up through the Entries in Union rundown and State list significant to
Taxation.

Union List:

Entry No. 82 – Tax on Income other than agriculture income.

Entry No. 83 – Duties of customs including export duties.
Entry No. 84 – Duties of excise on Tobacco and other goods manufactured or
produced in India except alcoholic
liquors for human consumption, opium, narcotic drugs, but including medicinal and
toilet preparations
containing alcoholic liquor, opium or narcotics.
Entry No. 85 – Corporation tax
Entry No. 92A – Taxes on sale or purchase of goods other than newspapers, where
such sale or purchase takes
place in the cource of Interstate trade or commerce.
Entry No. 92B – Taxes on consignment of goods where such consignment takes place
during Inter-State trade or
commerce.
Entry No. 92C – Tax on services
Entry No. 97 – Any other matter not included in List II, List III and any tax not
mentioned in List II or List III.
State List:

Entry No. 46 – Taxes on agricultural income.

Entry No. 51 – Excise duty on alcoholic liquors, opium and narcotics.

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 Entry No. 52 – Tax on entry of goods into a local area for consumption, use or sale
therein (usually called Octroi
or Entry Tax).
Entry No. 54 – Tax on sale or purchase of goods other than newspapers except tax on
interstate sale or purchase.
Entry No. 55 – Tax on advertisements other than advertisements in newspapers.
Entry No. 56 – Tax on goods and passengers carried by road or inland waterways.
Entry No. 59 – Tax on professionals, trades, callings and employment.
There are also certain restrictions which have been imposed in our Constitution on the
powers of StateGovernments and Union Government. So far indirect tax especially the tax on
sale and purchase of goods isconcerned certain restrictions imposed in Constitution are
provided here below:

Article 286(1) – State Government cannot impose tax on sale or purchase during
imports or exports; or tax onsale outside the State.

Article 286(2) – Parliament is authorized to formulate principles for determining

when a sale or purchase takesplace (a) outside the State (b) in the course of import or export.
[sections 3,4,5 of CST Act, 1956 have beenlegislated under these powers].

Article 286(3) – Parliament can place restrictions on tax on sale or purchase of goods
declared as goods ofspecial importance and the State Government can tax such declared
goods subject to these restrictions[section14, 15 of CST Act, 1956 imposes restrictions and
conditions on the power of State Governments to levy tax ondeclared goods.]

Article 301- Trade, commerce and inter -course through out the territory of India
shall be free, subject toprovisions of Article 302 to 304 of Constitution.[Entry tax in Haryana
was held as ultra vires of article 301 byPunjab & Haryana High Court in Jindal Strips Ltd. v
State of Haryana and others, (2007) 29 PHT 385 (P&H)].

Article 302 – Restriction on trade or commerce can be placed by Parliament in the

public interest.

Article 303(1), 303(2) – No discrimination can be made between one State and
another or give preference to oneState over another. Such discrimination or preference can be
made only by Parliament by law to deal withsituation arising from scarcity of the goods.

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 Article 304 – State can impose tax on goods imported from other States or Union
territories, but a State cannotdiscriminate between goods manufactured in the State and goods
brought from other States.

Proviso to article 304 provides that State legislature can impose reasonable
restrictions on freedom of trade andcommerce within the state in public interest. However,
such bill cannot be introduced in State Legislaturewithout previous sanction of the President.

Article 300A – No person shall be deprived of its property save by authority of law.

FUNDAMENTAL RIGHTS AND TAX STATUTES:

This can be classified into the following:

 Art. 14 and Tax statutes

Case Laws:
 I.T. Officer, Shillong V. N.T.R. Rymbat, 1976 SC 670
 Spence Hotel Pvt. Ltd., V. State of W.B. (1991) 2 SCC 154
 Art. 14 and Income Tax
Case Laws:
 Shashi Khant V. UOI, JT 1990(3) SC 267
 Art. 14 and Service tax
Case Laws:
 Kerala Hotel and Restaurant Association V. State of Kerala, AIR 1990 SC 913
 E.I. Tobacco V. State of A.P., AIR 1962 SC 1733
 Art. 27 and tax laws
Case Laws:
 Sri Jagannath V. State of Orissa, AIR 1954 SC 388

CONSTITUTIONAL (ONE HUNDRED AND FIRST AMENDMENT) ACT, 2016

HISTORY OF GST: A TIMELINE:

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The term GST was first introduced in 2000 by the then Prime Minister Atal Bihari Vajpayee,
the idea behind it – restructuring of excise taxation – was initially proposed in the union
budget for 1986-87 by the then finance minister Vishwanath Pratap Singh.

2000

 Discussions on GST begin and the Empowered Committee for GST is set up. Prime
Minister Atal Bihari Vajpayee introduces the concept of GST, and sets up a
committee to design a GST model. The then Finance Minister (FM) of West Bengal,
Asim Dasgupta, is appointed as the head of the committee.
2003

 Vijay Kelkar committee recommends tax reforms, highlights the importance of

comprehensive GST. A task force chaired by Vijay Kelkar, then advisor to the
finance ministry, proposes a comprehensive GST to deal with the myriad problems
and complications suffered by India’s taxation system.
2004

 Vijay Kelkar committee recommends that GST replace the existing indirect tax
structure.
February 2006

 GST appears in the union budget speech for the first time; the first deadline for GST
implementation is set. Finance Minister P. Chidambaram sets April 1, 2010 as the
deadline for implementing GST in India and announces preparation of a road map for
GST.
2008

 Empowered Committee of State Finance Ministers is constituted to prepare the road

map for GST. The committee submits a report titled ‘A Model and Roadmap for
Goods and Services Tax (GST) in India’ to the government.
November 2009

 The GST discussion paper is published online to encourage debate on GST with
various stakeholders. The next federal FM, Pranab Mukherjee, announces the basic
structure of GST as designed by the Empowered Committee; retains 2010 deadline.
The Bhartiya Janata Party (BJP) opposes the basic structure of the GST.
February 2010

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  Project on computerization of commercial taxes is launched to lay the foundation for
GST rollout; the GST deadline is postponed to April 1, 2011.
March 2011

 The Congress party introduces 115th Constitution Amendment Bill in the lower house
of parliament to implement GST.
November 2012

 A meeting is held between the federal FM and state FMs to resolve matters related to
GST transition. December 31, 2012 is set as the deadline to clear all GST-related
issues.
February 2013

 In the annual budget, the Congress-led government introduces a corpus of US$1.4

billion (Rs 90 billion) to compensate states for losses to be incurred due to GST.
August 2013

 The Parliamentary Standing Committee suggests amendments to the GST Bill,

which is approved with recommendations to change the provision of the tax structure
and dispute resolution mechanism. The GST Bill is ready to be introduced in the
parliament.
October 2013

 Narendra Modi, as then Chief Minister (CM) of Gujarat state, opposes the GST Bill in
the parliament. The CM voices concerns regarding revenue losses to the states.
2014

 The Bill lapses as the lower house of parliament dissolves. BJP-led National
Democratic Alliance (NDA) government comes to power with an overwhelming
mandate. Narendra Modi is elected the new Prime Minister of India.
December 2014

 The GST Bill is reintroduced in the lower house as the 122nd Constitution
Amendment Bill, by the newly elected NDA government; the Congress party insists
that the Bill should be reviewed by the Standing Committee again.
May 2015

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  The lower house of parliament passes the GST Amendment Bill, and the Bill is
moved to the upper house.
August 2016

 The Amendment Bill fails to receive two-third majority votes in the upper house – the
minimum number of votes for a bill to be passed in upper house. The Bill is
forwarded for approval to a joint committee comprising of members from the upper
house and lower house.
 Later, the GST Bill is passed in the upper house by a two-third majority. An
arrangement is agreed whereupon GST will be levied by both federal and state
governments on the consumption of goods and services in India. The GST gets
approved as a single tax to subsume all indirect taxes, including service tax and excise
tax.
September 2016

 The GST Bill gets Presidential assent; 16 out of 32 states and union territories ratify
the GST Bill. The GST Council is formed, and meets for the first time on September
22-23.
November 2016

 The GST Council agrees on a four-slab GST tax structure of 5, 12, 18, and 28 percent
with an additional cess on luxury and demerit goods such as tobacco and aerated
drinks. GST portal goes live and a registration schedule is released for existing
taxpayers.
January 2017

 The FM announces July 1, 2017 as the deadline for GST roll-out.

February 2017

 The GST Council finalizes the draft Compensation Bill – to make up for the revenue
loss to states in the first five years of GST roll-out.
March 2017

 The union cabinet approves the four key GST bills – Central GST, Integrated GST,
State GST and Union Territory GST. Bills are introduced in the lower house.
May 2017

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  GST Council announces rates for over 1,200 categories of goods and services, fitting
them in the tax slabs of 5, 12, 18, and 28 percent. A separate cess on luxury and
demerit goods is announced to fund the compensation for states.
June 2017

 All states except Jammu and Kashmir (J&K) pass the SGST law.
June 30 – July 1 midnight, 2017

 GST is rolled out nationwide, except in J&K.

July 7, 2017

 J&K state assembly passes state GST Bill while safeguarding state’s taxation rights
enshrined in the J&K constitution.
August 3, 2017

 The lower house of parliament passes two Bills extending CGST and IGST to the
state of J&K to ensure greater economic integration of the state with rest of the
country.

ANALYSIS OF 101 AMENDEMNT, 2016

The Constitution (One Hundred and First Amendment) Act, 2016

In the past, to amend constitution, 115th Constitutional Bill was introduced by UPA
government but the same has been lapsed due to dissolution of 15th Lok Sabha, requiring the
new NDA government to come up with fresh Bill. After the lots of discussion with States
Finance Minister, Union finance Minister cracked the deadlock between Center and State and
the Constitution 122nd Amendment bill was tabled and passed into Constitution (One
Hundred and First Amendment) Act, 2016. This Act will enable Centre and State
Government (Including Union Territory) to draft the CGST and SGST Law respectively. The
clause by clause detailed analysis of the Act is as under

Insertion of New Article 246A :- The Article 246 gives power to Union and State
government to make the law relating to matter covered under List I (Union List), List II
(State List) and List III (concurrent List). The Article 246A(1) gives right to parliament and
the legislator of every state can make the law in respect of goods and service tax to be
imposed by central or state government. This amendment would subsume the taxes like

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Excise duty, Service tax, Central Sales tax at Central level and VAT, Entry tax,
Entertainment tax etc. at State level.

The Article no. 246A(2) covers the provision of Interstate supply of goods or services
or both ,in such circumstances only parliament ( i.e. Central Government) can make the Law.
However the provision of article 246A, in case of Petroleum crude, high speed, petrol, natural
gas and aviation turbine fuel shall take effect from the date recommended by GST council as
constituted under Article 279A.

Amendment of Article 248(1) (residuary Power of legislation):-Under Article

248(1) Parliament has exclusive power in to make any law in respect of any item not covered
under State List and Concurrent List subject to provision Article 246A

Amendment of Article 249 (1) (Power of Parliament to legislate with respect to a

matter in the State List in the national interest):- Parliament under article 249(1) can make
the law in respect of any item specified in the state list in the national interest, if the Council
of States has declared by resolution and supported by 2/3rd of member present and vote. Now
this also includes goods and service tax under article 246A i.e. Parliament of India can make
the GST law for the whole or any part of India subject to approval 2/3rd members of each
state.

Amendment of Article 250(1)(Proclamation of Emergency) :- In the event of

announcement of emergency, Parliament of India has power to make the laws in respect of
any item covered under state list for the whole India or part of the India under article 250(1).
Goods and service tax under article 246A i.e. Parliament of India can make the GST law in
case of emergency

Amendment of Article 268 (1) (Duties levied by the union but collected by the
States): – Article 268 (1) provides the provision of levy of stamp duty and excise duty on
medicinal and toilet preparation by union government and collection by state (In case of
State) or by union (In case of union territory). Now, the duties of excise on medicinal and
toilet preparation has been omitted and same is been amalgamated in GST.
Amendment of Article 268A (Service tax levied by union government and
collected and appropriated by Union & States):-Article 268A provides power to
government of India to levy the service tax and collected and apportioned by government of
India and State. Now, this article has been omitted.

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 Amendment of Article 269 and Insertion of New Article 269A (Inter State Sale
and Purchase) :-Article 269 (1) facilities the levy and collection of tax on sale of goods or
consignment of goods in the course of Interstate trade or Commerce. Now, the provision of
this clause is subject to new article 269A. As per Article 269A Goods and Service tax shall be
levied and collected by Government of India and apportioned between States in the manner
as provided in the law by parliament on the recommendation of GST council.
Further, Parliament of India will formulate the law in respect of tax on interstate trade of
goods and services. In addition to above import of goods or Services or both will also be
equally treated as Supply of the goods and services in the course of Inter-State trade or
Commerce. This will give power to central government to levy IGST on the Import
transaction instead of Counter Vailing Duty (CVD) levied under existing Act.
Amendment of Article 270(1)(Levy and Distribution between union and state):-
Article 270(1) provides the distribution of certain taxes between union and states as per
clause (2) of Article 270. The Interstate GST has been kept outside from the provision of
above article. Because the provision of distribution of revenue in case of Interstate GST is
already incorporated under 269A. Hence the same is excluded from the purview of 270(1).
However the revenue of GST other than Interstate GST will be distributed between Union
and State according to Clause (2) of Article 270.
Amendment of Article 271 (Surcharge on taxes by union):-Parliament has
exclusive right to charge the surcharge on any tax and such surcharge will form the part of
consolidated fund. But the GST is exception to above article. In other word parliament cannot
charge any tax by way of surcharge on GST.

Insertion of Article 279A (Constitution of Goods and Service tax Council):-GST

COUNCIL: With insertion of Article 279A, President of India has power to constitute Goods
and Service tax Council (GST Council) within 60 days from the date of commencement of
this act.
GST council is a governing body to regulate and direct each and every step for the
implementation of goods and service tax in the nation with decisions over tax rates and
further implementation measures. GST council assimilates suggestions and regulation into
one form and improvise the changes formally through notifications and circulars with its
departments and finance ministry.
Cabinet Ministry has given approval for the establishment of GST Council while the
notification regarding the establishment of Council was issued on Saturday the 10th day

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September 2016 and the provisions came into force on Monday the 12th day of September
2016. Also, the Article 279A having provisions regarding establishment of GST Council was
inserted after Article 279 of THE CONSTITUTION (ONE HUNDRED AND FIRST
AMENDMENT) ACT, 2016.
GST Council Constitution
According to the Article 279A, it is on the part of Prime Minister to give the order to
constitute the council of GST within the 60 days from the 12th September 2016 which is
already notified by the Government.
Following are the designated personnel, who will form the GST Council together:-
 The Union Finance Minister who will be the CHAIRMAN of the council;
 The Union Minister of State in charge of Revenue or Finance who will be the
MEMBER of council;
 ONE MEMBER from each state who is Minister in charge of Finance or Taxation or
any other Minister and anyone of them will be VICE CHAIRMAN of the GST
Council who will be mutually elected by them.
Note
 The Secretary of Revenue Department will work as EX-Officio Secretary to the GST
Council,
 The Chairperson of Central Board of Excise and Customs will be the permanent
invitee in all the proceedings of the GST Council who will not have the voting rights.
Quorum and Decision-Making
 For a valid meeting of the members of GST Council, at least 50 percent of the total
number of the member should be present at the meeting.
 Every Decision made during the meeting should be supported by at least 75 percent
majority of the weighted votes of the members who are present and voting at the
meeting. In “article 279A” a principle is there which divides the total weighted vote
cast between Central Government and State Government: -
 The vote of Central Government shall have the weighted of one-third of the
total votes
 The votes of State Government shall have the weighted of two third of the
total votes, cast in the meeting
 Any act, decision or proceedings shall not be declared as invalid on the basis of any
remaining deficiency at the time of establishment of GST Council i.e.

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  if there is any vacancy remained in the Council
 if there is any defect in the constitution of Council
 if there is any defect in the appointment of a person as a member of the
Council
 if there is any procedural non-compliance.
Functions of the GST Council
The GST council will be supposed to make the recommendation to the Union and State
on the following matters: -
 On subsuming of various taxes, cess, and surcharge in GST.
 Details of services and goods that will be subjected to GST or which will be exempted
from GST.
 On Threshold limit below which, services and goods will be exempted from GST.
 On GST rates including floor rate with bands of GST and any special rate for time
being to arrange resources to face any natural calamity.
 Making special provisions for the following states: Arunachal Pradesh, Assam,
Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura,
Himachal Pradesh and Uttarakhand.
 On model law on GST, Principal of levy of GST and the principals which will govern
the place of Supply.
The Goods and Services Tax Council shall make recommendations to the Union and the
States on—

 the taxes, cesses and surcharges levied by the Union, the States and the local bodies
which may be subsumed in the goods and services tax;
 the goods and services that may be subjected to, or exempted from the goods and
services tax;
 model Goods and Services Tax Laws, principles of levy, apportionment of Goods and
Services Tax levied on supplies in the course of inter-State trade or commerce under
article 269A and the principles that govern the place of supply;
 the threshold limit of turnover below which goods and services may be exempted
from goods and services tax;
 the rates including floor rates with bands of goods and services tax;
 any special rate or rates for a specified period, to raise additional resources during any
natural calamity or disaster;

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  special provision with respect to the States of Arunachal Pradesh, Assam, Jammu and
Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, Himachal
Pradesh and Uttarakhand; and
 any other matter relating to the goods and services tax, as the Council may decide.

Amendment of Article 286 (Restriction on Imposition of tax) :- Article 286 restricts the
state laws from imposition of any tax on sale or purchase of goods outside the state or in the
course of the import of the goods into, or export of the goods out of, the territory of India.
Now, Supply of goods or service or both will be covered by this clause. This clause will
restrict the states from imposition of Interstate GST and same will be levied by union
government under Article 269A as mentioned earlier.

Amendment of Article 366 (Definition): Article 366 covers various definitions. As per new
clause 12A to Article 366 “Goods & Service tax” means any tax on supply of Goods or
Services or both except taxes on supply of the alcoholic liquor for human consumption. The
term service is also defined by inserting new clause 26A as, anything other than goods. The
definition of service is much broader now as compared to the earlier one which is defined in
finance act 1994.

Amendment of Article 368 (Power to parliament to amend the constitution):- Article

368 gives power to Parliament to amend any provision of constitution of India by introducing
such change into the each house of parliament and get sanctioned from 2/3rd majority of the
membership of the house present. It shall then present to president for his assent and then it
becomes an act. However if the amendment is related with any matters of state, such
amendment should be ratified legislature of states by 50% resolution before presentation of
the same for presidents assent. Now Article 279A is also covered under provision of Article
368. It means any change in Article 279A shall also be ratified by state legislator beside the
Sanction of each house of parliament and before the assent of President.

Amendment in Sixth Schedule (Powers to access and collect land revenue and to impose
tax):- Under Para no 8 of sixth schedule the District council of an autonomous district shall
have power to levy & collect taxes on professions, trades, calling, employment, animal,
vehicle, boat, on entry of goods, for maintenance of school, dispensaries or road. Now
additionally such District may levy taxes on Entertainment and Amusement.

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Amendment in Seventh Schedule (Union List, State List and Concurrent List):-Seventh
schedule to the constitution covers the basic Structure of Indian taxation. The rights of
taxation are given to both i.e. Central government under List I (Popularly known as Union
List) and to the State under List II (Popularly known as State List). Due to insertion of Article
246A it is imperative to amend union list and state list to make the proper arrangement of
GST. The amendments are as follow

Amendment in Entry No 84, 92, 92C to Union List: As per Entry No 84 Duties of excise
shall be levied on tobacco and other goods manufactured or produces in India except
alcoholic liquor for human consumption, opium, Indian hemp and narcotics. Now the excise
duty is been subsumed by Article no 246A. Hence now new Entry no 84 will cover Excise
duty on petroleum crude, high speed, petrol, natural gas and aviation turbine fuel, tobacco
and tobacco products. It means even after introduction of GST, Central Excise duty on above
product shall remain in force till the time as GST council thinks fit.
Further Entry no 92 and 92C covering tax on sale or purchase of newspaper and Service tax
respectively have been omitted as already they are merged Into GST.

Amendment in Entry No 52, 54, 55 and 62 to State List:-Entry no 52 gives power to levy
the entry tax. Now, the entry has been omitted. It means now local bodies can’t levy and
collect the entry taxes like octroi, Local Body Tax (LBT) etc.
Under Entry No 54 state government can collect tax on sale or purchase of goods other than
newspaper. Now, the state government can only collect the taxes on sale of petroleum crude,
high speed, petrol, natural gas and aviation turbine fuel and alcoholic liquor for human
consumption. Further Now State government can’t levy the tax on advertisement under Entry
No 55.
In addition to above now Panchayat, Municipalities, Regional or District council can levy and
collect taxes on entrainment and amusement under entry 62.

Levy of addition 1% tax by States:-To protect the revenue loss of manufacturing state
additional 1% tax shall be levied by state on sale or purchase in the course of interstate for the
period of 2 years of such extended period as allowed by GST council. Entire revenue from
such addition levy will kept by the state from where supply of goods take place. The

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Government of India may, where it considers necessary in the public interest, exempt such
goods from the levy of tax
Compensation to States for Revenue Loss: - Parliament may by law and with the
recommendation of GST council provide compensation to state on account of implementation
of GST. The period of compensation is restricted up to 5 years.

Which taxes at the Centre and State level are being subsumed into GST?

At the Central level, the following taxes are being subsumed:

a. Central Excise Duty,

b. Additional Excise Duty,

c. Service Tax,

d. Additional Customs Duty commonly known as Countervailing Duty, and

e. Special Additional Duty of Customs.

At the State level, the following taxes are being subsumed:

a. Subsuming of State Value Added Tax/Sales Tax,

b. Entertainment Tax (other than the tax levied by the local bodies), Central Sales
Tax (levied by the Centre and collected by the States),

c. Octroi and Entry tax,

d. Purchase Tax,

e. Luxury tax, and

f. Taxes on lottery, betting and gambling.

GST COUNCIL POWER AND FUNCTIONS:

SIGNIFICANCE OF UNION TERRITORIES GOODS AND SERVICES TAX ACT,

2017

 The GST Council has included the UTGST in order to complete the constitutional
obligation which it says te Constitution (One Hundred and first) Amendment Act,
2016, has added a new clause, namely 26B on “State” in Article 366. As per this

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 clause, “State” with reference to Articles 246A, 268, 269, 269A and 279A includes a
Union Territory with Legislature yet even “State” for the purposes of GST, added a
Union Territory with Legislature.
 The purpose of UTGST is to apply a collection of tax on every intra UT supply of
goods and service in the union territories in absence of legislature and has similar
properties as that of SGST. So, all in all, the SGST cannot fulfill the needed provision
here and for the same UTGST has taken its place.
 The UTGST is applied to the union territories of India, viz., Chandigarh,
Lakshadweep, Daman and Diu, Dadra and Nagar Haveli, Andaman and Nicobar
Islands. Apart from that, New Delhi and Puducherry will still enjoy the SGST
provision as both the States have their separate legislatures and can operate freely on
the terms of SGST and has also been considered as the States by the GST Council.
Why UTGST is Implemented?

 The main agenda has been taken up by the GST Council for which the apex body has
introduced the UTGST which will continue to provide benefits as same as SGST.
 As per the Art. 246(4), the Parliament has rights to form laws with respect to any
matter for any part of the territory of India, which is not included in the State,
including the matters enumerated in State List.
What are the 3 types of GST possible after UTGST’s inception in GST?
There could be the following combination of taxes applicable for any transaction:

 For Supply of goods and/or services within a state (Intra-State): CGST + SGST

 For Supply of goods and/or services within Union Territories (Intra - UT): CGST +
UTGST

 For Supply of goods and/or services across States and/or Union Territories (Inter-
State/ Inter-UT): IGST

Order of utilization of credits taking into account of UTGST in GST:

In the case of utilization of Input Tax Credit of UTGST in an orderly manner, the treatment to
be followed is the same as that of SGST. To sum this up, Input Tax Credit of SGST or
UTGST would first set-off against SGST or UTGST respectively. Output Tax liabilities and
balance, if any, can be set-off against IGST Credits available.

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With the new rule, the IGST credit needs to be completely utilized before off setting it with
CGST or SGST. The order of setting off ITC of IGST can be done in any proportion and any
order towards setting off the CGST or SGST output after utilizing the same for IGST output.

SIGNIFICANCE OF GOODS AND SERVICES TAX (COMPENSATION TO

STATES) ACT, 2017

 Compensation Mechanism for States

 Levy and collection of cess
 Returns, payments and refunds
 Revenue of all taxes subsumed in GST by the State for the year
 2015-2016 as the base
 Assumption of 14% Annual Growth Rate
 Compensation to be provided through Cess
 Cess only on few specified luxury and demerit goods.

EXEMPTIONS TO LEVY OF GOODS AND SERVICES TAX TO PETROLEUM

PRODUCTS AND ALCOHOLIC LIQUOR FOR HUMAN CONSUMPTION

Article 366.Clause (12A) “defines goods and services tax as any tax on supply of goods, or
services or both except taxes on the supply of the alcoholic liquor for human consumption. So
alcohol for human consumption is kept out of GST by way of definition of GST on
constitution.Five petroleum products viz. petroleum crude, motor spirit (petrol), high speed
diesel, natural gas and aviation turbine fuel have temporarily been kept outand GST Council
shall decide the date from which they shall be included in GST.

 Petroleum products: Petroleum Products such as petroleum crude, motor spirit

(petrol), high speed diesel, natural gas and aviation turbine fuel etc. are also kept
outside the purview of GST in India. However, the taxes for these products will be
charged as per the structure before introduction of GST.
 Alcohol for human consumption: Alcohol for human consumption has been kept
outside the purview of GST in India at present. However, the taxes imposed to alcohol
for human consumption will continue as per the structure before GST implementation.
Alcohol was not brought under the purview of GST regime primarily due to two reasons:

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  To ensure that the State Governments continue to have a strong inflow of revenue
(other than what they get from GST). It’s estimated that taxes on liquor and beer fetch
the state governments nearly INR 90,000 crores annually.
 To keep the prices of liquor and beerhigh to limit consumption.

By subsuming most indirect taxes levied by the central and state governments like excise,
service tax, VAT and sales tax, the pan-India goods and services tax (GST) regime has
proposed to facilitate a common market in the country.

As a measure of support for the states, petroleum products, alcohol for human consumption
and tobacco have been kept out of the purview of GST.

Is all form of alcohol out of GST?

GST as a law is enacted based on the changes made to the Constitution of India
through the Constitutional (101st Amendment) Act, 2016. Entry 54 which empowers the levy
of tax on sale of goods is now confined to certain petroleum products and alcoholic liquor for
human consumption.
The Constitution defines GST on tax on supply of goods or services or both except
taxes on the supply of alcoholic liquor for human consumption. Thus there is no GST on
alcoholic liquor for human consumption but these goods would be subject to existing State
levies. Ethyl alcohol and other spirits, denatured, of any strength is liable to GST.

POWERS OF THE GST COUNCIL TO REGULATE THE PETROLEUM

PRODUCTS AND ALCOHOLIC LIQUOR FOR HUMAN CONSUMPTION BY
NOTIFICATION

The petroleum products are "constitutionally included" under the Goods and Services
Tax ( GST) but it is the GST Council which includes Finance Ministers of all states that
would decide when petrol, diesel etc can be brought under its regime.

Article 279A (5) of the Constitution provides that GSTCouncil shall recommend the date on
which goods and services tax shall beleviedon petroleum crude, high speed diesel, motor
spirit, natural gas and aviation turbine fuel.
"Thus, while petroleum products are constitutionally included under GST, the date on which
GST shall beleviedon such goods shall be as per the decision of the GSTCouncil, which has

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representation of Ministers-in-charge of finance or taxation of all states and Union Territories
with legislature."

UNIT III
INCOME TAX
INCOME TAX ACT, 1961
Please check for the amendments and changes in slab rate for every financial year.
The provisions of income tax extends to the whole of India and became effective from
1/4/1962 (Sec. 1). The Actcontains provisions for -
(a) determination of taxable income;
(b) determination of tax liability;
(c) procedure for assessment, appeals, penalties and prosecutions; and
(d) powers and duties of Income tax authorities

BASIC PRINCIPLES FOR CHARGING INCOME TAX [SEC. 4]

1. Income of the previous year of a person is charged to tax in the immediately following
assessment year.

2. Rate of tax is applicable as specified by the Annual Finance Act of that year. Further,
though the Finance Actprescribes the rates of tax, in respect of certain income, the Income
Tax Act itself has prescribed specific rates,e.g. Lottery income is to be taxed @ 30%
(Sec.115BB), Long term capital gain is to be taxed @ 20% (Sec.112), shortterm capital gain
on listed shares u/s 111A is to be taxed @ 15%, etc.

3. In respect of income chargeable to tax, tax shall be deducted at source, or paid in advance
(wherever applicable).
Sec. 4 is a charging section and it is the backbone of the Income Tax Act. The tax liability
arises by virtue of thissection and it arises at the close of a previous year. However, the
finalisation of amount of tax liability is postponedto the assessment year. It follows the rule
that the liability to tax is not dependent upon assessment.

ASSESSMENT YEAR (A.Y.) [SEC. 2(9)]

Assessment year means the period of 12 months commencing on the 1st day of April
every year. It is the year (justafter the previous year) in which income earned in the previous
year is charged to tax. E.g., A.Y.2019-20 is a year,which commences on April 1, 2019 and
ends on March 31, 2020. Income of an assessee earned in the previous year2018-2019 is
assessed in the A.Y. 2019-20.

 Duration: Period of 12 months starting from 1st April.

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  Relation with Previous Year: It falls immediately after the Previous Year.
 Purpose: Income of a previous year is assessed and taxable in the immediately
following Assessment Year.

PREVIOUS YEAR [SEC. 2(34) and SEC 3]

Previous Year means the financial year immediately preceding the Assessment Year. Income
earned in a year isassessed in the next year. The year in which income is earned is known as
Previous Year and the next year in whichincome is assessed is known as Assessment Year. It
is mandatory for all assessee to follow financial year (from 1st Aprilto 31st March) as
previous year for Income-Tax purpose.

EXCEPTIONS TO THE GENERAL RULE THAT INCOME OF A PREVIOUS YEAR

IS TAXED IN ITS ASSESSMENT YEAR
This is the general rule that income of the previous year of an assessee is charged to tax in the
immediately followingassessment year. However, in the following cases, income of the
previous year is assessed in the same year in orderto ensure smooth collection of income tax
from the taxpayer who may not be traceable, if assessment is postponedtill the
commencement of the Assessment Year:
1. Income of a non-resident assessee from shipping business (Sec. 172)
2. Income of a person who is leaving India either permanently or for a long period (Sec. 174)
3. Income of bodies, formed for a short duration (Sec. 174A)
4. Income of a person who is likely to transfer property to avoid tax (Sec. 175)

5. Income of a discontinued business (Sec. 176). In this case, the Assessing Officer has the
discretionary power i.e. hemay assess the income in the same previous year or may wait till
the Assessment year.

ASSESSEE [SEC 2(7)]

“Assessee” means,
a. a person by whom any tax or any other sum of money (i.e., penalty or interest) is payable
under this Act (irrespectiveof the fact whether any proceeding under the Act has been taken
against him or not);
b. every person in respect of whom any proceeding under this Act has been taken (whether or
not he is liable for anytax, interest or penalty) for the assessment of his income or loss or the
amount of refund due to him;
c. a person who is assessable in respect of income or loss of another person;
d. every person who is deemed to be an assessee under any provision of this Act; and

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e. a person who is deemed to be an ‘assessee in default’ under any provision of this Act. E.g.
A person, who wasliable to deduct tax but has failed to do so, shall be treated as an ‘assessee
in default’.

PERSON [SEC. 2 (31)]

The term person includes the following:
(i) an Individual;
(ii) a Hindu Undivided Family (HUF);
(iii) a Company;
(iv) a Firm;

(v) an Association of Persons (AOP) or a Body of Individuals (BOI), whether incorporated or

not;
(vi) a Local authority; &
(vii) every artificial juridical person not falling within any of the preceding categories.

AGRICULTURAL INCOME: SEC 2(1A)

According to section 2(1A), agricultural income is defined as:

a. Any rent or revenue generated from land in India and is used for agricultural purpose.
b. It includes the income generated from agricultural operations including processing of
agriculture produce for sale in the market.
c. Income earned from farmhouse which may be used as storehouse or dwelling unit.
d. Any income which is earned by selling saplings or seeds grown in the nursery.
e. Share - profits received from your partner who is engaged in agricultural activities.

f. Income received from a building situated near the agricultural land will be treated as an
agricultural income if the below-mentioned conditions are satisfied:

 The building must be occupied by the cultivator.

 The building is used as dwelling house or storehouse.
 The land is either assessed to land revenue in India or it is subject to a local rate
assessed.

However, agricultural income does not include the following:

 Income generated by selling processed produce of agricultural nature

 Income from extremely processed produce

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  Income from trees sold as timber
 Income earned by poultry farming
 Income or revenue generated from bee hiving
 Income obtained from dairy farming and spontaneously grown trees.
 Income earned by producing salt by flooding land with sea water.
 Revenue generated by purchasing standing crops.
 Income earned from butter and cheese making.
 Income generated from T.V. serials being shot in farmhouses is not considered as
agricultural income.
Under Section 10(1) of the Income-tax Act, 1961 deals with a tax on agricultural income. All
agricultural incomes are not exempted under the Income tax act. Under this constitution, only
the state government has the power to levy tax on agricultural income. Central government
excludes agricultural income from the purview of Central Income Tax.

CALCULATION OF AGRICULTURAL INOCME

1. Agricultural Income(a)+Non-Agricultural Income(b)= (c) ---- Calculate tax on (c)=(d)
2. Agricultural Income(a)+Basic Exemption = (e) ---- Calculate tax on (e)= (f)
3. Net tax payable = (d)-(f)= Answer.
Or
Step 1: Compute income tax on total income of assessee including Agri-income.

Step 2: Compute income tax on (Agri-income + Maximum exempted limit)

Step 3: Tax liability before cess = (Tax as per step 1) - (Tax as per step 2)

Eg: Agricultural Income = 75,000/-, Non- agricultural income= 15,00,000/-, LIC Premiuim=
10,000/- (LIC premium will be deducted under section 80C from non-agricultural income)
Agricultural income (a) = 75,000
Non- agri Income
(15,00,000-10,000) (b) =14,90,000
(a)+(b) = (c) = 15,65,000
Tax payable on (c) is (d) = 2,82,000
(a)+ basic exemption is (e) =3,25,000
Tax payable on (e) is (f) = 3,750
Total tax payable (d)-(f) = 2,82,000-3750= 2,78,250
Add cess (4%) on 2,78,250 = 2,78,250 + 11,130= 2,89,380.

INCOME SECTION 2(24)

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Income includes:

1. Profits and gains

2. Dividend
3. Voluntary Contributions received by a trust.
4. The value of any perquisite or profit in lieu of salary taxable under section 17(2)(3).

5. Any sum chargeable to income-tax under section 28(u) and (iii) or section 41 or
section 59;
6. Any sum chargeable to tax u/s 28 (iiia)
7. Any sum chargeable to tax u/s 28(iiib)
8. Any sum chargeable to tax u/s 28 (iiic) , -
9. The value of any benefit or perquisite taxable under section 28 (iv)
10. Any capital gain taxable under section 45
11. Any winnings from lotteries, crossword puzzles, races including horse races, card
games and other games of any sort or from gambling or betting of any form or nature
whatsoever.

SLAB RATES
Income tax is levied on individual taxpayers on the basis of a slab system where
different tax rates have been prescribed for different slabs and such tax rates keep increasing
with an increase in the income slab.
Existing tax regime:
There are three categories of individual taxpayers:

 Individuals (below the age of 60 years), which includes residents as well as non-
residents
 Resident senior citizens (60 years and above but below the age of 80 years)
 Resident super senior citizens (above 80 years of age)

There are different slabs for each category of taxpayers. Such tax slabs tend to undergo a
change during every budget.KINDLY NOT THE SLAB RATES FOR THE
RESPECTIVE YEAR WHILE PREPARING FOR YOUR EXAMINATION.

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Eg: Compute tax payable for an individual below the age of 60 who is having a income of
Rs.17,50,000/-
Solution

Slab rate Calculation Amount

Upto 2.5 L - 0
2.5L-5L (5%) (5,00,000-2,50,000)*5/100 12,500
5L-7.5L (10%) (7,50,000-5,00,000)*10/100 25,000
7.5L-10L (15%) (10,00,000-7,50,000)*15/100 37,500
10L-12.5L (20%) (12,50,000-10,00,000)*20/100 50,000
12.5L-15L (25%) (15,00,000-12,50,000)*25/100 62,500
Above 15L(30%) (17,50,000-15,00,000)*30/100 75,000
Total - 2,62,500
Add Cess (4%) 2,62,500*4/100 656
Total tax payable - 2,63,156

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REBATE
A rebate under section 87A is one of the income tax provisions that help taxpayers reduce
their income tax liability. Taxpayers earning an income below a certain limit have the benefit
of paying marginally lower taxes. You can claim the benefit of rebate under section 87A for
FY 2020-21 only if the following conditions are satisfied:

1. You are a resident individual

2. Your total income after reducing the deductions under chapter VI-A (Section 80C,
80D and so on) does not exceed Rs 5 lakh in an FY

The tax rebate is limited to Rs 12,500. This means, if your total tax payable is less than
Rs 12,500, then you will not have to pay any tax.
Do note that the rebate will be applied to the total tax before adding the health and education
cess of 4%.
Eg 1. Total income is 2,70,000.
Tax payable before cess is 1000.
Rebate under section 87A is 1000.
Total tax payable is 0.
2. Total income is 12,00,000.
Tax payable before cess is 1,72,500.
Rebate under section 87A is 0
Total tax payable is 1,79,400. (including cess 4%)

RESIDENTIAL STATUS: SECTION 6

Residential status of an assessee determines the scope of chargeability of his income.
Whether a person will be charged to a particular income or not, depends on his residential
status. Sec. 6 provides the test for residential status for the persons which can be categorized
as under:

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INDIVIDUAL [SEC. 6(1)]
First of all, an individual is classified as resident or non-resident and again a resident
individual may fur-ther be categorized as Ordinarily Resident or Not Ordinarily Resident in
India.

Resident in India
An individual is said to be a resident in India, if he satisfies any one of the following
conditions - i) He is in India in the previous year for a period of 182 days or more [Sec.
6(1)(a)]; or ii) He is in India for a period of 60 days or more during the previous year and for
365 or more days dur-ing 4 previous years immediately preceding the relevant previous year
[Sec. 6(1)(c)]

Non-Resident in India
An assessee who is not satisfying sec. 6(1) shall be treated as a non-resident in India for the
relevant previous year.

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Eg: Sam came to India first time during the P.Y. 2018-19. During the previous year, he
stayed in India for (i) 50 days; (ii) 183 days; & (iii) 153 days. Determine his residential
status.
Solution

(i) Since Sam resides in India only for 50 days during the P.Y., he does not satisfy
any of the conditions specified in sec. 6(1). He is, therefore, a non-resident in
India for the P.Y.
(ii) Since Sam resides in India for 183 days during the previous year, he satisfies one
of the conditions specified in sec. 6(1). He is, therefore, a resident in India for the
P.Y.
(iii) Sam resides in India only for 153 days during the previous year. Though he
resided for more than 60 days during the previous year but in 4 years immediately
preceding the previous year (as he came India first time), he did not reside in
India. Hence, he does not satisfy any of the conditions specified in sec. 6(1). Thus,
he is a non-resident for the P.Y.

ADDITIONAL CONDITIONS TO TEST WHETHER RESIDENT INDIVIDUAL IS

‘ORDINARILY RESIDENT OR NOT’ [SEC. 6(6)]
A resident individual in India can further be categorised as –

 Resident and ordinarily resident in India

 Resident but not ordinarily resident in India

Resident and ordinarily resident

If a resident individual satisfies the following two additional conditions, he will be treated as
resident & ordinarily resident in India –

a) He has been resident in India [as per sec. 6(1)] in at least 2 out of 10 previous years
immediately preceding the relevant previous year; and
b) He has resided in India for a period of 730 days or more during 7 previous years
immediately preceding the relevant previous year.
Note: To be a Resident & Ordinarily resident in India, one has to satisfy at least one condition
of sec. 6(1) & both the additional conditions of sec. 6(6).

Resident but not ordinarily resident

If a resident individual does not satisfy both additional conditions as given u/s 6(6), he is
“Resident but not ordinarily resident in India”.
Eg:

Mr. X, aged 19 years, left India for first time on May 31, 2019. Determine his residential
status for the previous year 2019-20 if: i) He left India for employment purpose ii) He left
India on world tour.

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Solution
During the previous year, Mr. X was in India for 61 days.
During the previous year, X stayed in India for 61 days. Further, he was in India for more
than 365 days during 4 years immediately preceding the relevant previous year (as he left
India for first time).
i. Since he left India for employment purpose, condition of sec. 6(1)(c) shall not be
applicable on such assessee. He will be treated as resident in India, if and only if,
he resided in India for at least 182 days during the previous year. Hence, Mr. X is
a non-resident in India for the previous year.
ii. Since he left India on world tour, which is not an exception of sec. 6(1),
satisfaction of any one condition of sec. 6(1) makes him resident in India for the
previous year. As he satisfies 2nd condition of sec. 6(1) [shown above], he is
resident in India. Further, he also satisfies dual conditions specified u/s 6(6) (since
he left India for first time). Therefore, he is an ordinarily resident for the previous
year.
INCIDENCE OF TAX [SEC. 5]
The following chart highlights the provisions of tax incidence in brief:

Resident Resident Non

Nature of Income & but not resident
ordinarily ordinarily
resident resident
Income accrued or deemed to be Taxable Taxable Taxable
accrued and received or deemed to be
received in India
Income accrued outside India but Taxable Taxable Taxable
received or deemed to be received in
India.
Income accrued or deemed to be Taxable Taxable Taxable
accrued in India but received outside
India
Income accrued and received outside Taxable Taxable Not
India from a business controlled in or Taxable
profession set-up in India.
Income accrued and received outside Taxable Not Not
India from a business controlled or Taxable Taxable
profession set-up outside India.
Income accrued and received outside Taxable Not Not
India in the previous year (it makes no Taxable Taxable
difference if the same is later remitted
to India).

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Income accrued and received outside Not Not Not
India in any year preceding the previous Taxable Taxable Taxable
year and later on remitted to India in
current financial year

INCOME DEEMED TO ACCRUE OR ARISE IN INDIA [SEC. 9]

Following incomes are deemed to accrue or arise in India:

Income Salary Salary Income Income Income Income

from earned in from from from from from
connection India Govt. by dividend interest royalty technical
in India an paid by payable services
Indian an by
citizen Indian specified
for company person
services
rendered
outside
India
Sec. Sec. Sec. Sec. Sec. Sec. Sec.
9(1)(i) 9(1)(ii) 9(1)(iii) 9(1)(iv) 9(1)(v) 9(1)(vi) 9(1)(vii)

INCOME WHICH DON'T FORM PART OF TOTAL INCOME

Sec. 10 enlists the various income which are exempt from tax i.e. does not form part of total
income of the assessee. These are –

Agricultural Income [Sec. 10(1)]

Member’s Share in Income of HUF [Sec. 10(2)]
Any sum received by an individual as a member of a Hindu undivided family –
● Where such sum has been received out of the income of the family; or
● Where such sum has been received out of the income of an impartible estate belonging to
the family.

Share of Profit from a Firm [Sec. 10(2A)]

Share in the total income of the firm is exempt in the hands of partner.

Leave Travel Concession [Sec. 10(5)]

Tax paid by Government on Royalty or Fees for Technical Service [Sec. 10(6A)]

Tax paid by Government on Income of a Non-resident or a Foreign Company [Sec.

10(6B)]

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Fees for Technical Services in Project connected with Security of India [Sec. 10(6C)]
Any income arising to notified foreign company by way of royalty or fees for technical
services received in pursuance of an agreement entered into with Central Government for
providing services in or outside India in projects connected with security of India.

Income from service provided to National Technical Research Organisation [Sec.

10(6D)] Any income arising to a non-resident or to a foreign company, by way of royalty
from, or fees for technical services rendered in or outside India to, the National Technical
Research Organisation.

Death-cum-retirement-gratuity [Sec. 10(10)]

Commutation of Pension [Sec. 10(10A)]
Leave Encashment [Sec. 10(10AA)]
Compensation for any Disaster [Sec. 10(10BC)] Any amount received or receivable from
the Central Government or a State Government or a local authority by an individual or his
legal heir by way of compensation on account of any disaster, except the amount received or
receivable to the extent such individual or his legal heir has been allowed a deduction under
this Act on account of any loss or damage caused by such disaster.
Daily Allowance, etc. to MP and MLA [Sec. 10(17)] Any income by way of –

a. Daily allowance received by any person by reason of his membership of Parliament or of

any State Legislature or of any Committee thereof;
b. Any allowance received by any person by reason of his membership of Parliament;

c. Constituency Allowance received by any person by reason of his membership of State

legislature;
Awards and Rewards [Sec. 10(17A)] Any payment made, whether in cash or in kind –

a. in pursuance of any award instituted in the public interest by the Central Government or
any State Government or by any other approved body; or
b. as a reward by the Central Government or any State Government for approved purposes.

NOTE: PLEASE REFER THE SECTION TO FIND OUT MORE PROVISIONS

UNDER SECTION 10.
HEADS OF INCOME [SEC. 14]
According to Sec.14 of the Act, all income of a person shall be classified under the following
five heads:
1. Salaries;
2. Income from house property;
3. Profits and gains of business or profession;

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4. Capital gains;
5. Income from other sources.
For computation of income, all taxable income should fall under any of the five heads of
income as mentioned above. If any type of income does not become part of any one of the
above mentioned first four heads, it should be part of the fifth head, i.e. Income from other
sources, which may be termed as the residual head.

Significance of heads of income

● Income chargeable under a particular head cannot be charged under any other head.
● The Act has self-content provisions in respect of each head of income.
● If any income is charged under a wrong head of income, the assessee may lost the benefit
of deduction available to him under the correct head.

SALARY
BASIS OF CHARGE OR CHARGEABILITY [SEC. 15]
Salary is chargeable to tax either on ‘due’ basis or on ‘receipt’ basis, whichever is earlier.
Hence, taxable salary includes:

a) Advance salary (on ‘receipt’ basis): Salary paid in advance is taxable under the head
‘Salaries’ in the year of receipt. Note: Such advance salary shall not be included again in the
total income when the salary becomes due.

b) Outstanding salary (on ‘due’ basis): Salary falling due is taxable under the head ‘Salaries’
in the year in which it falls due. Note: Such due salary shall not be included again in the total
income when it is received.

c) Arrear salary: Any increment in salary with retrospective effect which have not been taxed
in the past, such arrears will be taxed in the year in which it is allowed. Arrear salary are
taxable on receipt basis.

Deduction from Gross Salary [Sec. 16]

STANDARD DEDUCTION [SEC. 16(ia)]
Lower of the following shall be allowed as standard deduction to all employee:
a. ` 40,000
b. Amount of gross salary.

ENTERTAINMENT ALLOWANCE [SEC. 16 (ii)]

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Entertainment allowance is initially included in taxable allowances as fully taxable.
Thereafter, a deduction is allowed under this section from gross taxable salary. However,
deduction u/s 16(ii) shall be available to the Government employee only. Deduction for
Entertainment allowance being minimum of the following:
follo
a. Actual Entertainment Allowance
b. ` 5,000/-
c. 20% of Basic Salary.

■ Deduction allowed shall be irrespective of actual expenditure incurred, whether for office
or personal purpose.
■ No deduction is available under this section to a Non-government employee.

Eg: Compute taxable Entertainment allowance & net salary of Sri Hanuman Prasad from the
following data: Basic salary ` 8,000 p.m. D.A. ` 2,000 p.m. Taxable perquisite ` 35,000,
Entertainment Allowance ` 4,000 p.m. Out of such allowance ` 20,000 is expended and
balance amount is saved. Assuming he is:
a. Government employee b. Non-Government
Non employee.
Solution

TAX ON EMPLOYMENT OR PROFESSIONAL TAX [SEC. 16(iii)]

Tax on employment, profession, trade, etc. levied by a State under Article 276 of the
Constitution will be allowed as deduction on cash basis,
basis, whether paid by employee or by
employer (on behalf of employee) from gross taxable salary.
Note: If employer (on behalf of employee) pays Professional tax then:

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a. Firstly, it is to be included as taxable perquisite; and

b. Further, it is allowed as deduction u/s 16(iii).

Eg: Mr. Rohit a non-Government

Government employee has the following salary details : a. Basic Salary `
5,000 p.m. b. D.A. ` 2,000 p.m. c. Entertainment Allowance ` 300 p.m. d. Professional tax
paid by employee ` 600 e. LIC Premium paid by employer
employer ` 3,600 f. Income tax paid by
employee ` 2,000 g. Professional tax paid by employer on behalf of employee ` 1,600. Find
his taxable salary.
Solution

DEFINITION OF SALARY [SEC. 17(1)]

As per sec. 17(1) of the Income-tax
tax Act, 1961, salary includes the
t following:
a) Wages;
b) Any annuity or pension;
c) Any gratuity;
d) Any fees, commission, perquisite or profits in lieu of or in addition to any salary or wages;
e) Any advance of salary;
f) Any payment received in respect of any period of leave not
not availed of by the assessee;
g) The portion of the annual accretion in any previous year to the balance at the credit of an
employee, participating in recognised provident fund, to the extent it is taxable;
h) Transferred balance in a Recognised Provident Fund to the extent it is taxable.
i) Contribution made by the employer in the previous year, to the account of an employee
under a pension scheme referred to in sec. 80CCD [National Pension Scheme and Atal
Pension Yojana].
PERQUISITE OR PERKS [SEC. 17(2)]

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Meaning and Chargeability
In common parlance, perquisite means, any casual emoluments or benefits attached to an
office or position, in addition to salary or wages, which is availed by an employee. In other
words, perquisites are the benefits in addition to normal salary. As per sec. 17(2) of the
Income tax Act, Perquisite includes –

i. Value of rent-free accommodation provided by the employer.

ii. Value of concession in rent in respect of accommodation provided to the assessee
by his employer.
iii. The value of any benefit or amenity granted or provided free of cost or at
concessional rate to ‘specified employees’.
iv. Amount paid by an employer in respect of any obligation which otherwise would
have been payable by the employee.
v. Sum payable by an employer, whether directly or through a fund other than
recognised provident fund or approved superannuation fund or deposit-linked
insurance fund, to effect an assurance on the life of the assessee or to effect a
contract for an annuity.
vi. The value of any specified security or sweat equity shares allotted or transferred,
directly or indirectly, by the employer, or former employer, free of cost or at
concessional rate to the assessee.
vii. Any contribution in excess of ` 1,50,000 to an approved superannuation fund by
the employer in respect of the assessee. viii. the value of any other fringe benefit
or amenity as may be prescribed.

PROFITS IN LIEU OF SALARY [SEC. 17(3)]

Following receipts are taxable as profits in lieu of salary:
1. The amount of any compensation due to or received by an assessee from his employer or
former employer at or in connection with the (a) termination of his employment, (b)
modification of the terms and conditions of employment.
2. Any payment due to or received by an assessee from his employer or former employer
except the following:
● Gratuity exempted u/s 10(10);
● House rent allowance exempted u/s 10(13A);
● Commuted pension exempted u/s 10(10A);
● Retrenchment compensation exempted u/s 10(10B);
● Payment from an approved Superannuation Fund u/s 10(13);
● Payment from statutory provident fund or public provident fund;
● Payment from recognised provident fund to the extent it is exempt u/s 10(12).
3. Any payment from unrecognised provident fund or such other fund to the extent to which
it does not consist of contributions by the assessee or interest on such contributions.

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4. Any sum received by the employee under the Keyman Insurance Policy including the sum
allocated by way of bonus on such policy.
5. Any amount due to or received by the employee (in lump sum or otherwise) prior to
employment or after cessation of employment.
BASIC ELEMENTS OF SALARY
● Payer and payee must have employer and employee (or Master & Servant) relationship;
and
● Payment must have been made by the employer in such capacity.
Employer-employee relationship
A payment can be construed as salary only if the payer is the employer and payee is the
employee of the payer.
● Criteria for employer-employee relationship: The key criteria to hold this relationship is
that, employee is always bound to work as per direction and supervision of the employer.
● Payment in employer’s capacity: To treat any payment as salary it is necessary that payer,
being the employer, must have made the payment in such (employer’s) capacity.
● Contract of service vs contract for service: In “contract of service”, the employer can direct
and control the duties and the manner of performance of employee hence employer-employee
relationship exists in such contract. However, in case of “contract for service” the contractee
can simply decide and quote the object or target to be achieved but cannot decide or direct the
manner of performance.
● Agent and Principal: If a person is acting as an agent for his principal, any commission or
remuneration earned by the agent is not taxable under the head “Salaries”. This is because, an
agent is not the employee of his principal.
● Salary received by a partner from its firm shall not be taxable as salary, because there is no
employer-employee relationship between the firm and the partner. Such salary shall be
taxable under the head “Profits & gains of business or profession”.
● Salary received by proprietor from his proprietorship firm is not an income. As proprietor
and proprietorship firm are the same person and no one can earn from himself.
GRATUITY
Gratuity is a retirement benefit given by the employer to the employee in consideration of
past services. Sec. 10(10) deals with the exemptions from gratuity income. Such exemption
can be claimed by a salaried assessee. Gratuity received by an assessee other than employee
shall not be eligible for exemption u/s 10(10). E.g. Gratuity received by an agent of LIC of
India is not eligible for exemption u/s 10(10) as agents are not employees of LIC of India.
The provisions of gratuity are governed by the Payment of Gratuity Act, 1972, and it is given
on the occurrence of any of the following events.
a. On superannuation (means an employee who attains the age of retirement is said to be in
superannuation)
b. On retirement or resignation

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c. On death or disablement due to accident or disease (the time limit of 5 years shall not apply
in the case of death or disablement of th
the employee)
It is mandatory for the employee to have completed a minimum of five years in service to be
able to receive gratuity. It is not available for interns or temporary employees.

Employees Covered Under the Payment of Gratuity Act

Every individual – working in a factory, mine, oil field, port, railways, plantation, shops &
establishments, or educational institution having 10 or more employees on any day in the
preceding 12 months – is entitled to gratuity. Once the Act becomes applicable to an
employer,
er, even if the number of employees goes below 10, gratuity is still applicable.
Calculation of amount of gratuity exempted from tax
The least of the following is exempt from tax:

 Last salary (basic + DA)* number of years of employment* 15/26;

 Rs. 20 lakhs (which has been hiked from Rs. 10 Lakh as per the amendment);
 Gratuity Actually received

Eg: The last salary drawn by Rohan is Rs.1 Lakh per month (basic + DA). He is entitled to
receive a gratuity of Rs. 11 Lakhs. He has been in employment for the last 19
19 years and 7
months.

Employees Not Covered Under the Payment of Gratuity Act

There is no law that restricts an employer from paying gratuity to his employees, even if the
organization is not covered under the Payment of Gratuity Act. The amount of gratuity
payable to the employee can be calculated based on half month’s salary for each completed
year.

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Calculation of amount of gratuity exempted from tax
The least of the following are exempt from tax:

 Last 10 month’s average salary (basic + DA)* number of years of employment* 1/2;
 Rs. 10 lakhs (the hike to Rs 20 lakhs is not applicable for employees not covered
under the Payment of Gratuity Act)
 Gratuity actually received

Eg: Raghav has been in employment for 25 years and 2 months. The average salary for the
last 10 months is Rs. 90,000. The actual gratuity received by him is Rs. 11 Lakhs.

Government Employees
Gratuity paid by the government to government employees is fully exempt from tax.

PENSION [SEC. 17(1)(ii)]

Pension means a periodical payment received by an employee after his retirement. On certain
occasions, employer allows to withdraw a lump sum amount as the present value of
periodical pension. When pension is received periodically by employee, it is known as
Uncommuted pension. On the he other hand, pension received in lump sum is known as
Commuted pension. Such lump sum amount is determined considering factors like the age
and health of the recipient, rate of interest, etc.
Uncommuted pension Uncommuted pension is fully taxable in the hands of all employees
whether Government or Non –Government
Government employee.
Commuted pension received by a Government employee Commuted pension received by
a Government employee is fully exempt from tax u/s 10(10A)(i).

Commuted pension received by an employee who who also received gratuity [Sec.
10(10A)(ii)] One third of total pension (which assessee is normally entitled for) commuted is
exempt. It is immaterial whether the employee is covered by the Payment of Gratuity Act or
not.

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Commuted pension received by an employee employee who does not receive gratuity [Sec.
10(10A)(ii)] One half of total pension (which assessee is normally entitled for) commuted is
exempt.

Eg: Mr. Amit has retired from his job on 31/3/2019. From 1/4/2019, he was entitled to a
pension of ` 3,000 p.m. On 1/8/2019, he got 80% of his pension commuted and received `
1,20,000. Compute taxable pension if he is:
Case a) Government employee;
Case b) Non-Government
Government employee & not receiving gratuity
Case c) Non-Government
Government employee (receiving gratuity, but not covered by the Payment of
Gratuity Act)

RETRENCHMENT COMPENSATION
Retrenchment means cancellation of contract of service by employer. Tax Treatment [Sec.
10(10B)]: Any compensation received by a worker at the time of retrenchment is exempted to
the extent of minimum of the following:
a) Actual amount received;
b) ` 5,00,000; or

c) An amount calculated in accordance with the provisions of sec. 25F(b) of Industrial

Dispute Act, 1947 (Under the said Act a workman is entitled to retrenchment compensa
compensation
equivalent to 15 days’ average pay, for every completed year of service or any part thereof in
excess of 6 months).

COMPENSATION RECEIVED AT THE TIME OF VOLUNTARY RETIREMENT

[SEC. 10(10C)]
If an employee accepts retirement willingly in lieu of compensation
compensation then such retirement is
known as Voluntary Retirement. Voluntary retirement compensation received or receivable
by an employee is eligible for exemption subject to the following conditions –

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Conditions for exemption
1. Compensation is received from
m specified employer

2. Compensation is received as per Voluntary Retirement Scheme (VRS) framed in

accordance with prescribed guidelines

Amount of exemption
Exemption shall be minimum of the following –
a) Actual amount received as per guidelines; or
b) ` 5,00,000.

House rent allowance (HRA) [Sec. 10(13A) and rule 2A]

An allowance to meet the expenses in connection with the rent of the house, by whatever
name called.
Tax Treatment: Minimum of the following is exempted from tax:
a. Actual HRA received.
b. An amount equal to 50% of salary1 (when house is situated in a metro city) or 40% of
salary (when house is situated in any other place) for the relevant period
c. The excess of rent paid over 10% of salary1 . [Arithmetically, (Rent
(R Paid – 10% of Salary)]
Salary here means: Basic + D.A. (if it forms a part of retirement benefit) + Commission as a
fixed % on turnover.

Eg: X, a resident of Ajmer, receives ` 48,000 as basic salary during the previous year 2019
2019-
20. In addition, he gets
ts ` 4,800 as dearness allowance forming part of basic salary, 7%
commission on sales made by him (sale made by X during the relevant previous year is `
86,000) and ` 6,000 as house rent allowance. He, however, pays ` 5,800 as house rent.
Determine the quantum
ntum of exempted house rent allowance.

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INCOME UNDER HEAD HOUSE PROPERTY
CHARGEABILITY
As per sec. 22, the annual value of property consisting of any building or land appurtenant
thereto of which assessee is the owner, other than such portion of such property as he may
occupy for the purposes of any business or profession carried on by him shall
shall be chargeable
to income tax under the head “ Income from house property.” It is an exceptional feature of
this head that rather than actual income from house property, earning capacity of house
property is taxable. As stated u/s 22 that “annual value” of the property is taxable rather than
actual income of the property.

Condition 1: Building or land appurtenant thereto The term ‘house property’ is not
defined in Income tax Act. However, various judicial interpretation have construed the term
house property as –
● any land surrounded by wall having roof or not; and
● any land appurtenant to a building.

Condition 2: Owner Annual value of a property is assessed to tax only in the hands of the
owner even if he is not in receipt of any income. Any person person other than the owner, even
though he is in receipt of rent shall not be liable to tax under this head. That is why, income
from sub-letting
letting is not taxable under this head but under the head ‘Income from other
sources’. E.g. Mr. X being a tenant of a house
house property acquired it at a monthly rent of `
10,000 from Mr. Y (owner of such house property). Mr. X sublets the property to Mr. Z for a
monthly rent of ` 12,000. Income from subletting being ` 2,000 p.m. is taxable as business
income or as income from otherher sources. Owner includes legal owner, beneficial owner and
deemed owner.

Legal owner:: Legal owner means a person who has the legal title of the property as per the
Transfer of Property Act, Registration Act, etc.

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Beneficial owner: For income tax purpose it is not necessary that the property must be
registered in the name of the assessee. If the assessee is enjoying the property as an owner to
full extent he will be treated as a beneficial owner of such property and will be charged under
the head ‘Income from house property’.

Fictional owner or Deemed owner [Sec. 27] U/s 27, in the following cases, a person shall
be treated as deemed owner of the property and liable to tax (in such case legal owner or
beneficial owner shall not be further liable to tax)
1. Transfer to spouse or minor child [Sec. 27(i)]: When an individual transfers a house
property to –
● his or her spouse (not being a transfer in connection with an agreement to live
apart); or
● a minor child (not being a married daughter)

E.g.: Mr. X transfers his house property worth ` 5,00,000 to Mrs. X out of love and affection.
In such case, though Mrs. X is the legal owner but Mr. X will be liable to tax as deemed
owner of such property.

2. The holder of an impartible estate [Sec. 27(ii)]: The holder of an impartible estate
(property which is not legally divisible) is treated as deemed owner of house property.
Impartible estate is an estate to which the assessee has succeeded by grant or covenant.

3. Property held by a member of a company, society or any other association [Sec.

27(iii)]: Property held by a member of a company, co-operative society or other association
of persons to whom a building or a part thereof is allotted or leased under House Building
Scheme of the company or association, is treated as deemed owner of that building or a part
thereof.
4. A person who acquired a property u/s 53A of the Transfer of Property Act [Sec.
27(iiia)]: A person who is allowed to take or retain possession of any building (or part
thereof) in part performance of a contract u/s 53A of the Transfer of Property Act, 1882, is
deemed as the owner of that building (or part thereof).

5. Lessee of a building u/s 269UA(f) [Sec. 27(iiib)]: A person who acquires any right u/s
269UA(f) in or with respect to any building or part thereof, by way of lease agreement for a
period not less than 12 years is deemed as the owner of that building (or part thereof).
Condition 3: Property is used for business or profession carried on by the assesseeWhen
a person carries on business or profession in his own house property, annual value thereof is
not taxable u/s 22 provided income of such business is chargeable to tax.

Incidences thereof
● Letting out to employees: If an assessee lets out the property to his employee, where such
letting out supports smooth flow of his business, then such letting out shall be deemed to be
incidental to business and such rent shall be chargeable under the head “Profits & gains of
business or profession”.

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● Letting out to Government Agencies: Where an assessee let out his property to any
Government agency for locating branch of a nationalized bank, police station, post office,
excise office, railway staff quarters, etc. for the purpose of running the business of assessee
more efficiently, such letting out shall be deemed to be incidental to business and such rent
shall be chargeable under the head “Profits & gains of business or profession”.

● Letting
g out to ancillary units: Where an assessee lets out its property to ancillary units,
which manufactures components required by the assessee. Income from such letting out shall
be taxable under the head “Profits & gains of business or profession”.

CO-OWNERSHIP [SEC. 26] If two or more persons own a house property jointly, then
they are known as co-owners.
owners. If individual share of each co-owner
co owner is definite and
ascertainable then the share of each such person shall be taxable as his income from house
property.

Tax treatment
1. Share of each co-owner
owner in the income from the property as computed in accordance with
sec. 22 to 25 shall be included in his total income.
2. Where the house property is owned by co-owners
co owners and is occupied by each of the coco-owner
then all of them can claim benefit u/s 23(2)(a) and interest on loan shall be allowed to all the
co-owners
owners to the extent of ` 30,000/` 2,00,000 as the case may be. Note: Provision of Sec. 26
is mandatory and not optional.

COMPUTATION OF INCOME
LET OUT PROPERTY [SEC.
C. 23(1)]
Computation

Gross Annual Value (GAV) Normally, income tax is charged on income, but under the head
‘Income from house property’, tax is not charged on the rent earned from house property but
on the inherent earning capacity of the house property. Such earning capacity is termed as
Annual Value.
ue. Annual value is determined considering the following factors:

 Gross Municipal Value(MV) It means the annual value of the property decided by
municipality on which they charge municipal tax. Such valuation may also be taken as
evidence of earning capacity
capaci of a property.

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  Fair or Notional rent of the property(FR) Fair or notional rent of a property means
rent fetched by a similar property in the same or similar locality. Though two
properties might not be exactly similar still it is an indicator of rent reasonably
expected from the property. An inflated or deflated rent due to emergency,
relationship and such other conditions need to be adjusted to determine fair rent.
 Actual Rent Receivable [ARR] Any sum receivable as rent of the house property for
the previous year is an evidence for determining the earning capacity of the building.
Such actual rent receivable is to be computed on accrual basis. However, where tenant
pays rent, which is influenced by benefits provided by the owner of the property, such
rent must be disintegrated to determine actual rent i.e. De-facto rent of the property.
 Standard rent under the Rent Control Act(SR)Standard rent is the maximum rent,
which a person can legally recover from his tenant under the Rent Control Act
prevailing in the State in which the property is situated. A landlord cannot reasonably
expect to receive from a tenant any amount more than Standard Rent.

COMPUTATION OF GAV
Step 1 – Find out the maximum of MV, FR, ARR
Step 2 – Find out the maximum of ARR, SR

Step 3 – GAV is the least of the two maximums calculated in step one and two.
Step 4 – If Municipal tax is given subtract it with GAV to get NAV(Net Annual Value)
Eg: Determine the gross annual value in the following cases

MV= Rs.1,00,000/-, FR= Rs.1,20,000/-, ARR= Rs. 1,00,000/-, SR= Rs.1,25,000, Municipal
Tax= Rs.15,000/-
Solution

1. Maximum of MV, FR, ARR = Rs.1,20,000/-

2. Maximum of ARR, SR = Rs. 1,25,000/-
3. GAV is the least of the two maximums calculated in step 1 &2 = Rs. 1,20,000/-
4. NAV= GAV(-)Municipal Tax = 1,20,000-15,000
NAV = 1,05,000/-

DEDUCTIONS U/S 24
The list of deduction u/s 24 is exhaustive i.e., no deduction can be claimed in respect of
expenditures which are not specified under this section e.g., no deduction is allowed for
repairs, collection charges, insurance, ground rent, land revenue, etc.

1. Standard deduction u/s 24(a)- 30% of the net annual value is allowed as standard
deduction in respect of all expenditures (other than interest on borrowed capital) irrespective
of the actual expenditure incurred. Note: Where NAV is negative or zero, standard deduction
u/s 24(a) is not available.

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2.. Interest on loan or borrowed capital u/s 24(b) Interest payable on amount borrowed for
the purpose of purchase, construction, renovation, repairing, extension,
extension, renewal or
reconstruction of house property can be claimed as deduction on accrual basis.

Amount not deductible from Income from house property [Sec. 25] Any interest
chargeable under this Act which is payable outside India, is not allowed as deduction
deduc if: ● on
such interest, tax has not been deducted at source and paid as per the provision of chapter
XVIIB; and

● in respect of such interest there is no person in India who may be treated as an agent u/s
163.

OCCUPIED PROPERTY [SEC. 23(2)(a)] Ass per sec. 23(2)(a), a house property
SELF-OCCUPIED
shall be termed as self occupied property where such property or part thereof:
● is in the occupation of the owner for the purposes of his own residence;
● is not actually let out during the whole or any part of the previous year; and
● no other benefit there from is derived by the owner.
Treatment :The annual value of such house or part of the house shall be taken to be nil.

Combination
Fully self occupied
Partly self occupied& partly vacant
Partly self occupied& partly let out
Partly self occupied& partly use for
business purpose
Treated as
Self occupied property
Self occupied property
Partly self occupied& partly let out
Self occupied to the extent used for
self occupation

Computation of taxable income of self-occupied property Net annual value of self self-
occupied property shall be taken as nil. As a consequence, deduction u/s 24(a) (standard
deduction) shall also be nil. Interest on loan u/s 24(b) shall be allowed, subject to certain
ceiling.
Computation

UNOCCUPIED PROPERTY [SEC. 23(2)(b)]

Where an assessee has a residential house (kept for self-occupation)
self occupation) and it cannot actually be
occupied by the owner owing to his employment, business or profession carried on at any

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other place and hence he has to reside
reside at that place in a building not belonging to him, such
house shall be termed as unoccupied property.
■ Assessee has a residential house kept for self-occupation.
self

■ The house cannot be occupied by the owner owing to his employment and no other benefit
is derived from such house. In case house remains unoccupied by the owner owing to his
personal convenience, then no benefit under this section shall be allowed.
■ He has to reside in a house not belonging to him, whether rent is paid for that house or no
not.
Computation

DEEMED TO BE LET-OUT OUT HOUSE PROPERTY [SEC. 23(4)] Where the assessee
occupies more than one house property as self-occupied
self occupied or has more than one unoccupied
property, then for any one of them, benefit u/s 23(2) can be claimed (at the choice of the
assessee) and remaining property or properties shall be treated as ‘deemed to be let out’.

1. Gross Annual value: Since assessee does not let out such property & do not receive rent,
therefore GAV will be determined from Step 1 only. Step 2, 3 & 4 of calculation GAV are
irrelevant. GAV of deemed to be let out property will be the ‘Reasonable expected rent
(RER)’of the property.

2. Municipal taxes and deduction u/s 24(a) and 24(b) shall be available as in the case of let
out house property.

INCOME UNDER HEAD PROFITS & GAINS OF BUSINESS OR PROFESSION

MEANING OF BUSINESS & PROFESSION
Business [Sec. 2(13)]
Business includes –
● any trade, commerce or manufacture; or
● any adventure or concern in the nature of trade, commerce or manufacture. Generally,
business means recurring economic activity, but for income tax purpose an isolated activity
may be termed as business depending upon facts and circumstances. Following eelements
shall be considered to judge a transaction as business transaction: ● Nature of commodity
● Intention of the party
● Efforts applied in transaction

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● Periodicity of transaction
● Nature of transaction (whether incidental to a business or not)
Profession [Sec. 2(36)] Profession includes vocation. Profession requires purely intellectual
skill or manual skill on the basis of some special learning and qualification gathered through
past training or experience e.g. chartered accountant, doctor, lawyer etc. Professional skill
can be acquired only after patient study (in a particular system either a college, university or
institute) and application (i.e. experience) Vocation implies natural ability of a person to do
some particular work e.g. singing, dancing, etc. The term “vocation” is different from the
term “hobby”. Vocation must have the earning feature. It can be treated as an earning means
by which a man passes his life. Unlike profession, vocation does not require a degree or
special learning.

INCOME CHARGEABLE UNDER THE HEAD PROFITS & GAINS OF BUSINESS

OR PROFESSION - CHARGEABILITY [SEC. 28]
Sec. 28 enlists the incomes, which are taxable under the head ‘Profits & gains of business or
profession’:
1. Profits & gains of any business or profession [Sec. 28(i)]: Any income from business or
profession including income from speculative transaction shall be taxable under this head.

2. Compensation to Management agency [Sec. 28(ii)]: Any compensation/other payment

due to or received.

3. Income of trade or professional association’s [Sec. 28(iii)]: Income derived by a trade,

professional or similar association from rendering specific services to its members shall be
taxable under this head. Note: This is an exception to the general principle that a surplus of
mutual association cannot be taxed.
4. Export incentive [Sec. 28(iiia) (iiib) & (iiic)]: An export incentive in form of –

● Profit on sale of import license or duty entitlement pass book. [Sec. 28(iiia)/(iiid)/(iiie)] ●
Cash assistance received/receivable by an exporter under a scheme of the Government of
India [Sec. 28(iiib)]
● Duty draw back (received/receivable) for export e.g. Excise duty drawback, etc. [Sec.
28(iiic)]
5. Perquisite from business or profession [Sec. 28(iv)]: The value of any benefit or
perquisite, whether convertible into money or not, arising from business or profession shall
be taxable under this head. Examples: If an authorized dealer of a company receives a car
(over and above his commission) from the company on achieving sale-target then market
value of such car shall be taxable under the head ‘Profits & gains of business or profession’.
6. Remuneration to partner [Sec. 28(v)]: Any interest salary, bonus, commission or
remuneration received by a partner from the firm (or Limited Liability Partnership) shall be
taxable as business income in the hands of the partner to the extent allowed in hands of firm
(or Limited Liability Partnership) u/s 40(b).

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7. Amount received or receivable for certain agreement [Sec. 28(va)]: Any sum, whether
received or receivable in cash or in kind, under an agreement for –
● not carrying out any activity in relation to any business or profession; or
● not sharing any know-how, patent, copyright, trade mark, licence, franchise or any other
business or commercial right of similar nature or information or technique likely to assist in
the manufacture or processing of goods or provisions for services. Exceptions: The aforesaid
provision is not applicable in respect of the following:
a. any sum received or receivable in cash or in kind on account of transfer of the right to
manufacture, produce or process any article or thing; or right to carry on any business or
profession, which is chargeable under the head Capital gains;
b. any sum received as compensation from the multilateral fund of the Montreal Protocol on
Substances that Deplete the Ozone Layer under the United Nation Environment Programme,
in accordance with the terms of agreement (whether or not in writing, whether or not intended
to be enforceable by legal proceedings) entered into with the Government of India

8. Keyman Insurance Policy [Sec. 28(vi)]: Any sum received under a Keyman Insurance
Policy including bonus on such policy. As per sec. 10(10D) Keyman insurance policy is a life
insurance policy taken by a person on the life of another person who is or was –
● an employee of the first mentioned person; or

● in any manner whatsoever connected with the business of the first mentioned person. and
includes such policy which has been assigned to a person, at any time during the term of the
policy, with or without any consideration

9. Conversion of stock into capital asset [Sec. 28(via)]: The fair market value of inventory
as on the date on which it is converted into, or treated as, a capital asset.
10. Recovery against certain capital assets covered u/s 35AD [Sec. 28(vii)]: Any sum
received or receivable (in cash or kind) on account of any capital asset (other than land or
goodwill or financial instrument) being demolished, destroyed, discarded or transferred, if the
whole of the expenditure on such capital asset has been allowed as a deduction u/s 35AD.

General Points
1. As per sec. 145(1), income chargeable under the head “Profits & gains of business or
profession” or “Income from other sources”, shall subject to the provision of sec. 145(2), is to
be computed in accordance with the method of accounting (i.e. either on cash or on accrual
basis) regularly followed by the assessee. However, there are certain expenditures specified
u/s 43B, which shall be deductible only on cash basis. As per sec. 145(3), where the
Assessing Officer is not satisfied about the correctness or completeness of the accounts of the
assessee, or has not been regularly followed by the assessee, or income has not been
computed in accordance with the notified standards, the Assessing Officer may make an
assessment in the manner provided u/s 144 i.e. Best Judgment Assessment.
2. Negative income: Income includes negative income i.e. loss.

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3. Notional profit: A person cannot do business with himself, hence notional profit is not
taxable. E.g. If proprietor withdraws goods costing ` 10,000 for personal use at an agreed
value of ` 12,000 then profit of ` 2,000 shall not be taxable.

4. Anticipated profit or loss: Anticipated or potential profit or loss, which may or may not
arise in future are not considered for deriving taxable income.

5. Legality of business: There is no difference between legal or illegal business from income
tax point of view. Even income of illegal business shall be taxable.
6. Compilation of income of all business or profession: If an assessee carries on several
business or profession, then income from all business or profession shall be merged together.
7. Business or profession must be carried on during the previous year. Income is chargeable
under the head “Profits & gains of business or profession” only if the business is carried on
by the assessee during the previous year. It is not necessary that the business should continue
throughout the year or till the end of previous year.

REPAIRS & INSURANCE OF MACHINERY, PLANT & FURNITURE [SEC. 31]

Repairs & insurance of plant, machinery & furniture are allowed as deduction. Points to be
noted in this regard:
1. Use of asset: The asset must be used for the purpose of business or profession. However, if
the asset is not exclusively used for the purpose of business or profession then deduction shall
be restricted to a fair proportion of above expenditure, which the Assessing Officer may
determine [Sec. 38(2)].

2. Current repair vs Capital repair: Only current repairs are allowed as deduction. Examples:
● Heavy expenditure incurred for replacement of part of a ship without creating any asset is
deductible ● Any expenditure on the replacement of petrol engine by a diesel engine on his
vehicle is allowed u/s 31.

3. Rent for furniture, plant or machinery: Only repairs & insurance of machinery, plant &
furniture is covered under this section. Rent paid for use of such assets is deductible u/s
37(1).

DEPRECIATION [SEC. 32]

As per section 32 of the Income Tax Act, 1961, depreciation is allowed on tangible assets and
intangible assets owned, wholly or partly, by the assesse and used for the purposes of
business or profession.

Block of Assets [Sec. 2(11)]

Block of assets means a group of assets of same nature, in respect of which same rate of
depreciation is charged. In other words, to fall in the same block, the following two
conditions are to be satisfied:

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● Assets must be of same nature; Tangible assets being building, machinery, plant or
furniture, and Intangible assets, being know-how, patents, copy-rights, trade marks, licenses,
franchises or any other business or commercial rights of similar nature acquired on or after 1-
4-1998;
● Rate of depreciation on such asset must be same.

Conditions For Claiming Depreciation

Deductions can be availed for depreciation, only if it satisfies the following conditions.

1. The assets must be owned, wholly or partly, by the assessee.

2. They must be in use for the business or profession of the taxpayer. If the assets are not
used exclusively for the business, but for other purposes as well, depreciation
allowable would be proportionate to the use of business purpose. The Income Tax
Officer also has the right to determine the proportionate part of the depreciation under
Section 38 of the Act.
3. Co-owners can claim depreciation to the extent of the value of the assets owned by
each co-owner.
4. You cannot claim depreciation on the cost of land.
5. Depreciation is mandatory from A.Y. 2002-03 and shall be allowed or deemed to
have been allowed as a deduction irrespective of a claim made by a taxpayer in the
profit & loss account.

EXPENSES ALLOWED AS DEDUCTIONS AGAINST PROFITS AND GAINS OF

BUSINESS OR PROFESSION [SECTION-30-37]
1. Rent, Rates, Taxes, Repairs And Insurance For Building [Section 30]
2. Repairs and insurance of machinery, plant and furniture [Section 31]
3. Depreciation [Section 32]
4. Investment allowance in Notified Backward Area in Andhra Pradesh, Bihar,
Telangana or West Bengal [Section 32AD]
5. Tea/Coffee/Rubber Development Account [Section 33AB]
6. Site Restoration Fund [Section 33ABA]
7. Expenditure on Scientific Research [Section 35]
8. Expenditure for Obtaining Right to use Spectrum for Telecommunication Services
[Section 35ABA]
9. Expenditure for obtaining Licence to operate Telecommunication Services [Section
35ABB]
10. Deduction in respect Of Expenditure On Specified Business [Section 35AD]
11. Payment to Associations and Institutions for carrying out Rural Development
Programmes [Section 35CCA]
12. Expenditure on Agricultural Extension Project [Section 35CCC]
13. Expenditure on Skill Development Project [Section 35CCD]
14. Amortisation of Preliminary Expenses [Section 35D]
15. Amortisation of expenditure in case of Amalgamation / Demerger [Section 35DD]

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 16. Amortisation of Expenditure under Voluntary Retirement Scheme [Section 35DDA]
17. Amortisation of Expenditure on Prospecting etc., for Development of Certain
Minerals. (Section 35E)
18. Insurance Premium [Section 36(1)(i)]
19. Bonus or Commission to Employees [Section 36(1)(ii)]
20. Interest on Borrowed Capital [Section 36(1)(iii)]
21. Discount on issue of Zero Coupon Bonds [Section 36(1)(iiia)]
22. Employer’s Contribution to National Pension Scheme (NPS) [Section 36(1)(iva)]
23. Contribution towards Approved Gratuity Fund [Section 36(1)(v)]
24. Employees’ Contribution to Staff Welfare Schemes [Section 36(1)(va)]
25. Allowance in respect of Dead or Permanently useless Animals [Section 36(1)(vi)]
26. Bad debts [Section 36(1)(vii)]
27. Provision for Bad and Doubtful Debts relating to Rural Branches of Commercial
Banks [Section 36(1)(viia)]
28. Transfer to Special Reserve [Section 36(1)(viii)]
29. Family Planning Expenditure [Section 36(1)(ix)]
30. Securities Transaction Tax [Section 36(1)(xv)]
31. Commodities Transaction Tax [Section 36(1)(xvi)]
32. Expenditure by Co-Operative Society for purchase of Sugarcane [Section 36(1)(xvii)
33. General Deductions [Section 37]

INCOME UNDER HEAD CAPITAL GAINS

BASIS OF CHARGE

 There must be a capital asset

 The capital asset must have been transferred
 There must be profit or gains on such transfer
 Such capital gain should not be exempt u/s 54 to 54GA.
CAPITAL ASSET [SEC. 2(14)] Capital asset means –
● any kind of property held by an assessee, whether or not in connection with his business or
profession;
● any securities held by a Foreign Institutional Investor which has invested in such securities
in accordance with the regulations made under the Securities and Exchange Board of India
Act, 1992.

Does not include

 Any stock in trade, consumables, raw materials

 Personal goods such as clothes and furniture held for personal use. However,
jewellery, paintings, drawings, sculptures are capital assets.
 Agricultural land in rural India

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  6½% gold bonds (1977) or 7% gold bonds (1980) or national defence
defenc gold bonds
(1980) issued by the central government
 Special bearer bonds (1991)
 Gold deposit bond issued under the gold deposit scheme (1999) or deposit certificates
issued under the Gold Monetisation Scheme, 2015
TYPES OF CAPITAL ASSET

TRANSFER [SEC. 2(47)]

Transfer in relation to a capital asset includes:
(a) Sale, Exchange & Relinquishment of the asset;

(b) Extinguishment of any right in an asset;

(c) Compulsory acquisition of an asset under any law;
(d) Conversion of asset into stock
tock-in-trade by the owner;
(e) Any transaction of immovable property u/s 53A of the Transfer of Property Act, 1882;
(f) Any transaction which has the effect of transferring or enabling the enjoyment of any
immovable property.
(g) Maturity or redemption of a zero coupon bond

Note: Above definition is indicative and not exhaustive. It is applicable only in relation to
capital assets and not otherwise. It also includes
● disposing of or parting with an asset or any interest therein, or

● creating any interest

erest in any asset in any manner whatsoever, directly or indirectly,
absolutely or conditionally, voluntarily or involuntarily, by way of an agreement (whether
entered into in India or outside India) or otherwise, notwithstanding that such transfer of
rights
ts has been characterised as being effected or dependent upon or flowing from the
transfer of a share or shares of a company registered or incorporated outside India.

TRANSACTIONS NOT REGARDED AS TRANSFER (SEC. 46 & 47)

By virtue of sec. 46(1) and sec. 47 the following transactions do not constitute transfer for the
purpose of capital gain –

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46(1)- Any distribution of capital assets in the event of liquidation by a company to its share
share-
holders shall not be treated as transfer in the hands of company.
47(i) - Any distribution of capital assets on the total or partial partition of an HUF.

47(iv)- Any transfer of a capital asset by a 100% holding company to its Indian subsidiary
company.
47(vib)- Any transfer, in a scheme of demerger, of capital asset by the demerged
demerged company to
the resulting company, if the resulting company is an Indian company.

47(viic) -Any
Any transfer of Sovereign Gold Bond issued by the RBI under the Sovereign Gold
Bond Scheme, 2015, by way of redemption, by an assessee being an individual.
47(x)- Any transfer by way of conversion of bonds or debentures, debenture-stock
debenture stock or deposit
certificates in any form of a company into shares or debentures of that company.

COMPUTATION OF CAPITAL GAINS [SEC. 48]

Short-term
term Capital Gain means the gain arising on transfer of short-term
short term capital asset [Sec.
2(42B)].
Long-term
term Capital Gain means the gain arising on transfer of long-term
long term capital asset [Sec.
2(29B)].

Cost of Acquisition [Sec. 55(2)] Cost of acquisition includes expenditure incurred for
acquiring the asset or completing the title of the asset. For instance–
instance

● Sum paid for discharge of mortgage debt to clear charge over the property (created by
previous owner) is a part of cost of acquisition.
acq

● Litigation expenditure incurred by a shareholder to get the shares registered in his name
will form part of cost of acquisition of shares.

Cost of Improvement [Sec. 55(1)(b)] Cost of improvement means an expenditure incurred

to increase the productive
oductive quality of the asset. It includes all expenditures of a capital nature
incurred in making any additions or alterations to the capital asset.

(a) Any expenditure which is deductible in computing the income chargeable

under any other head of income shall
shall not be treated as cost of improvement.

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 (b) An expenditure incurred by a shareholder to file a suit to amend articles of
association, which results in appreciation of value of share shall be treated as
cost of improvement.

Eg: Mr. Divesh had purchased a golden

golden ring as on 17/8/2018 for ` 20,000. On 1/05/2019, he
has sewn a di-amond
amond on it costing ` 25,000. On 1/08/2019, he sold such ring for ` 80,000 and
incurred brokerage for arranging customer ` 5,000. Compute capital gain.
Solution

COMPUTATION OF LONG TERM CAPITAL GAIN (LTCG) Model

Indexed cost of acquisition “Indexed cost of acquisition” means the ‘cost of acquisition’ (as
discussed in case of short term capi-tal
capi tal gain) adjusted according to the price level of the year
of sale. As per explanation to sec.4
sec.48, “In-dexed
dexed cost of acquisition” is an amount which bears
to the ‘cost of acquisition’ the same proportion as Cost Inflation Index for the year in which
the asset is transferred bears to the Cost Inflation Index for the first year in which the asset
was held
eld by the assessee or for the year beginning on 1/4/2001, whichever is later. Indexed
cost of acquisition = Cost of acquisition × Index of the year of transfer Index of the year
of acquisition.
Indexed cost of improvement “Indexed cost of improvement” means ns the ‘cost of
improvement’ (as discussed in case of short term capital gain) adjusted according to the price
level of year of sale. As per explanation to sec. 48, “in-dexed
“in dexed cost of any improvement” is an
amount, which bears to the cost of improvement the same proportion as Cost Inflation Index
for the year in which the asset is transferred bears to the Cost In-flation
In flation Index for the year in
which the improvement to the asset took place. Indexed cost of improvement = Cost of
improvement × Index of the year of transfer Index of the year of improvement.
Eg: Mr. Anand has purchased a house property as on 17/08/2002 for ` 5,00,000. On
1/05/2004, he constructed a new floor on the same house at a cost of ` 2,50,000. On

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1/10/2019, he sold such house for ` 18,00,000 and incurred brokerage @ 2% for arranging
customer. Compute capital gain.

EXEMPTIONS AVAILABLE UNDER LONG-TERM

LONG CAPITAL GAINS

Profit on sale of the residential house (Section 54):

If the residential house property, whether it is self-occupied

self or rented out is sold, you can
avail full exemption, provided:

 The assessee must be an individual or Hindu Undivided Family.

 The assessee has held the house for more than 24 months.
 The assessee has purchased a new house one year before the date of sale or two years
after the date of sale of the original house or if he is constructing a new house, within 3
years from the date of sale of the original house.
 If the amount is deposited in a bank under the Capital Gains Account Scheme, 1988.
 If the cost of the new house is equal to or more than the capital gain earned.
 If the cost of the new house is less than the capital gain, then the difference amount is
taxed at 20%.
 If the new house is sold within 3 years from the date of purchase or construction, then
the cost of thee new house is deducted by the amount of capital gain exempted on the
original house and the difference in the sale price of the new house will be treated as a
short-term capital gain.

If the long-term
term capital gain is invested in long-term
long specified assets of NHAI or Rural
Electrification Corporation or Other bonds notified by Central Govt. (Section 54EC):

It is available subject to the following:

 The profit earned is from the sale of a long-term

long term capital asset I.e. land or building or
both.
 The assessee mustt invest a part of the capital gain or the whole of the gain in specified
assets like bonds of NHAI or REC or Other bonds notified by Central Govt. within 6
months from the date of sale of the original asset.

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 Assessee can invest a maximum of Rs. 50 lakh in specified bonds in a financial year.
 The assessee must retain the new asset for a minimum of 3 years (5 years if the bond is
issued on or after 1st April 2018).

Profits from the sale of an asset other than a residential house are used to buy a
residential house (Section 54F):

This is available subject to the following conditions:

 The assessee must be an individual or a Hindu Undivided Family.

 The long-term capital gain should be from the sale of an asset that is not a residential
house.
 The assessee has purchased a new house one year prior to the date of sale or two years
after the date of sale of the original house or if he is constructing a new house, within a
period of 3 years from the date of sale of the original house.
 If the cost of the new house is not less than the value of the asset sold, the full amount of
capital gain is exempt from income tax. But If a part of the capital gain is invested, then
only that part will be exempted proportionately (I.e. cost of the new house * capital gain
amount /Net consideration) and the balance amount will be taxable @ 20%.
 If the full amount is not invested to buy a house or construct a house then it should be
kept in the bank under Capital Gains Account Scheme, 1988. The deposit amount in that
account should be utilized for the construction of a house or to buy a new house.
 On the date of sale of the original asset, the assessee should not own more than one
residential house apart from the new house. He should also not buy another house in 2
years or construct a new house in 3 years after such date (apart from the new house).
Section 54B: The capital gain earned on the sale of agricultural land will have to be
reinvested in the purchase of agricultural land. The land must be used for agricultural
purposes for at least 2 years immediately before the transfer. If the capital gain is higher than
the amount of purchase cost of the new agriculturalland then the remaining balance will be
taxed. If the capital gain is less than the purchase cost of the new agricultural land then no
tax will be charged.
Section 54D: Exemption is allowed for capital gain arising from industrial land or building
that has been compulsorily acquired by the Government. The asset should have been used for
the industrial purpose for 2 years immediately before the transfer. The exemption is allowed
only if the capital gain will be reinvested to acquire land or building for the industrial
purpose.
Section 54G: Exemption is allowed on the capital gain arising from the transfer of land,
building, plant or machinery to shift an industrial undertaking from the urban area to the rural
area. The exemption is allowed provided the capital gain is reinvested to acquire land,
building, plant or machinery in a rural area.

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Section 54GA: Exemption is allowed on the capital gain arising from the transfer of land,
building, plant or machinery to shift an industrial undertaking from the urban area to Special
Economic Zone provided the gain is reinvested to acquire land, building, plant or machinery
in the Special Economic Zone.

INCOME UNDER HEAD INCOME FROM OTHER SOURCES

CHAERGEABILITY: SEC 56
As per sec. 56(1), any income, which is not specifically exempted and not chargeable under
any other heads of income, shall be chargeable under the head “Income from other sources”.
This is the last and residuary head of income. A receipt shall be taxable under this head if the
following conditions are satisfied:
■ Such receipt shall be a taxable income; and
■ Such income does not specifically fall under any one of the other four heads of income (i.e.
‘Salaries’, ‘Income from house property’, ‘Profits and gains of business or profession’ or
‘Capital gains’). Sec. 56(2) lays down a list of incomes, which are taxable under this head.
Such list is not exhaustive. Apart from the income stated in sec. 56(2) any other income,
which is fulfilling all the above conditions, shall be taxable under this head.

Income absolutely chargeable under this head

1. Dividends [Sec. 56(2)(i)]
2. Casual income e.g. Winning from lotteries, etc. [Sec. 56(2)(ib)]
3. Gift [Sec. 56(2)(x)
4. Share premium in excess of fair market value of shares [Sec. 56(2)(viib)
5. Income by way of interest received on compensation or on enhanced compensation
[Sec.56(2)(viii)]

6. Sum of money received as an advance or otherwise in the course of negotiations for

transfer of a capital asset, if: (a) such sum is forfeited; and (b) the negotiations do not result in
transfer of such capital asset [Sec. 56(2)(ix)]

Income chargeable under this head if not charged under the head ‘Profits and gains of
business or profession’
7. Any sum received by the assessee from his employees as contribution to provident fund,
etc. [Sec. 56(2)(ic)]
8. Interest on securities [Sec. 56(2)(id)]
9. Income from letting of machinery, plant or furniture [Sec. 56(2)(ii)] 10. Composite Rent
[Sec. 56(2)(iii)]

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Income chargeable under this head if not charged under the head ‘Profits and gains of
business or profession’ or under the head ‘Salaries’-
11. Any sum (including bonus) received under a Keyman Insurance Policy [Sec. 56(2)(iv)]
Keyman Insurance Policy means a life insurance policy taken by a person on the life of
another person, who is either the employee or is connected in any manner with the business
of the former person [Explanation to Sec. 10(10D)]

12. Any compensation or other payment, due to or received by any person, in connection with
the termination of his employment or the modification of the terms and conditions relating
thereto. [Sec. 56(2)(xi)]

CASUAL INCOME: WINNING FROM LOTTERIES, CROSSWORD PUZZLES,

ETC. [SEC. 56(2)(ib)] Winnings from –
1. Lotteries;
2. Crossword puzzles;

3. Races including horse races;

4. Gambling and betting of any nature or form; or

5. Card games, game show or entertainment program on television or electronic mode and
any other game of any sort, - are taxable under this head.

Lottery includes winnings from prizes awarded to any person by draw of lots or by chance or
in any other manner whatsoever, under any scheme or arrangement by whatever name called.
Card game and other game of any sort includes any game show, an entertainment programme
on television or electronic mode, in which people compete to win prizes or any other similar
game.

DEDUCTIONS [SEC.57]

 Commission paid for receiving dividends against interest on securities

 Repairs/ depreciation in relation to plan and machinery
 repairs to building [section 30(a)(ii)];
 current repairs to machinery, plant or furniture and insurance premium [section
31];
 depreciation on building, machinery, plant or furniture [section 32]; and
 unabsorbed depreciation [section 32(2)].

 Standard deduction- family pension- upto Rs.15,000/- or 33 1/3 % (33.33%) of such

income, whichever is lower.
 Any other expenditure (not being a capital expenditure) expended wholly and
exclusively for the purpose of earning of such income.

SPECIFIC DISALLOWANCE [SEC. 58]

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Following expenditures shall not be deducted from any income under this head:
1. Any personal expenses of the assessee. [Sec. 58(1)(a)(i)]
2. Any interest which is payable outside India on which tax has not been deducted at source.
[Sec. 58(1)(a)(ii)]
3. Any salary payable outside India on which tax has not been deducted at source. [Sec.
58(1)(a)(iii)]

4. 30% of any payment made to a resident on which TDS provision is applicable without
deducting TDS as referred u/s 40(a)(ia)
5. Any amount paid as Wealth tax or Income tax. [Sec. 58(1A)]
6. Any amount specified u/s 40A like - ● payment to relative in excess of requirement; or ●
payment in excess of ` 10,000 otherwise than an account payee cheque/draft [Sec.58(2)]

7. No deduction in respect of any expenditure shall be allowed in computing the income by

way of any winnings from lotteries, crossword puzzles, races including horse races, card
games and other games of any sort or form, gambling or betting of any form or nature, etc.
taxable under the head “Income from other sources”. [Sec. 58(4)].

DEEMED PROFITS [SEC. 59]

Sec. 59 provides that where –

a) An allowance or deduction has been allowed for any year in respect of loss, expenditure or
trading liability incurred by the assessee; and
b) Subsequently, any amount is obtained, as revocation of such loss, expenditure or remission
of liability, whether in cash or in any other manner, during any previous year, - then such
amount received or amount remitted shall be charged to tax.

INCOME OF OTHER PERSONS INCLUDED IN ASSESSEES TOTAL INCOME-

CLUBBING OF INCOME
Generally, an assessee is taxed on income accruing to him only and he is not liable to tax for
income of another person. However, there are certain exceptions to the above rule (mentioned
u/s 60 to 64). Sec. 60 to 64 deals with the provisions of clubbing of income, under which an
assessee may be taxed in respect of income accrued to other person, e.g. certain income of
minor child shall be clubbed in the hands of his parents, income from asset transferred to
spouse for inadequate consideration shall be clubbed in the hands of the transferor, etc. These
provisions have been enacted to counteract the tendency on the part of the taxpayers to
dispose off their income or income generating assets to escape tax liability.

TRANSFER OF INCOME WITHOUT TRANSFERRING ASSETS [SEC. 60]

Where an income is transferred without transferring the asset yielding such income, then
income so transferred shall be clubbed in the hands of the transferor. The above provision
holds good –

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● whether the transfer is revocable or not; or
● whether the transaction is effected before or after the commencement of this Act.

REVOCABLE TRANSFER [SEC. 61]

If an assessee transfers an asset under a revocable transfer, then income generated from such
asset, shall be clubbed in the hands of the transferor. Revocable transfer As per sec. 63(a), a
transfer shall be deemed to be revocable if –

● It contains any provision for the retransfer (directly or indirectly) of any part or whole of
the income/assets to the transferor; or
● It, in any way, gives the transferor a right to re-assume power (directly or indirectly) over
any part or whole of the income/assets.

Exceptions [Sec. 62]

As per sec. 62(1), the provision of sec. 61 shall not apply to an income arising to a person by
virtue of –

(i) A transfer by way of creation of a trust which is irrevocable during the lifetime of the
beneficiary;
(ii) Any transfer which is irrevocable during the lifetime of the transferee; or
(iii) Any transfer made before 1.4.61, which is not revocable for a period exceeding 6 years.

In any case, the transferor must not derive any benefit (directly or indirectly) from such
income.

TRANSFER IS REVOCABLE [SEC.63]

A transfer for the purpose of Sec.60 to 62 shall be deemed to be revocable if

 It contains any provisions for re-transfer or whole or a part of income or assets to

transfer during the lifetime of the beneficiary or the transferee.
 It gives the transferor a right to re-assume power directly or indirectly over the whole
or part of the income or assets during the lifetime of the beneficiary or the transferee.

Sec 64- Income of individual to include income of spouse / minor child

Specified Specified scenario Income to be clubbed

person
If your spouse receives Income shall be clubbed in the hands of
any remuneration the taxpayer or spouse, whose income is
irrespective of its greater (before clubbing).
nomenclature such as
Spouse Salary, commission, fees
Exception to clubbing:
or any other form and by
any mode i.e., cash or in Clubbing is not attracted if spouse

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 kind from any concern in possesses technical or professional
which you have substantial qualifications in relation to any income
interest arising to the spouse and such income is
solely attributable to the application of
his/her technical or professional
knowledge and experience

Direct or indirect transfer Income from out of such asset is

of assets to your spouse by clubbed in the hands of the taxpayer.
you for inadequate
consideration
Exceptions to clubbing
No clubbing of income in following
cases:

Spouse  Where asset is received as part

of divorce settlement
 If assets are transferred before
marriage
 No husband and wife
relationship subsists on the date
of accrual of income
 Asset is acquired by the spouse
out of pin money (i.e. an
allowance given to the wife by
her husband for her personal and
usual household expenses)

Transfer of assets Any income from such assets

Daughter-in- transferred directly or
law indirectly to your daughter
in-law by you for
inadequate consideration
Any income arising or
accruing to your minor
child where child includes
both step child and
adopted child
transferred is clubbed in the hands of
the transferor
Income will be clubbed in the hands of
higher earning parent.
However, if marriage of child’s parents
does not subsist, income shall be
clubbed in the income of that parent
who maintains the minor child in the
previous year
Exceptions to clubbing

 Income of a disabled child

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Minor child (disability of the nature specified
in section 80U)
 Income earned by manual work
done by the child or by activity
involving application of his
skill, talent specialised
knowledge and experience
 Income earned by a major child.
This would also include income
earned from investments made
out of money gifted to the adult
child. Also, money gifted to an
adult child is exempt
from gift tax under gifts to
‘relative’.

SET OFF AND CARRY FORWARD OF LOSSES

For computation of Gross Total Income (GTI), income from various sources is computed
under the five heads of income. If all the sources and heads are having positive income (i.e.
profit) then the same can simply be added to compute GTI. However, if certain source(s) or
certain head(s) have negative income (i.e. loss) then such loss needs to be adjusted with
income of another source(s) or head(s). Set off means adjustment of loss from one source or
one head against income from another source or another head. If a negative income is not
fully set off in the current year, then the unabsorbed loss shall be carried forward to
subsequent years subject to certain restrictions and conditions [e.g. Income from other
sources (other than losses from activity of owning and maintaining horse races) cannot be
carried forward.]

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Intra-head Set Off

The losses from one source of income can be set off against income from another source
under the same head of income.
For eg: Loss from Business A can be set off against profit from Business B, where Business
A is one source and Business B is another source and the common head of income is
“Business”.
Exceptions to an intra-head
head set off:
off
1. Losses from a Speculative business will only be set off against the profit of the speculative
business. One cannot adjust the losses of speculative business with the income from any other
business or profession.
2. Loss from an activity of owning and maintaining race-horses
race horses will be set off only against
the profit from an activity of owning and maintaining race-horses.
race
3. Long-term
term capital loss will only be adjusted towards
tow long-term
term capital gains. However, a
short-term
term capital loss can be set off against both long-term
long term capital gains and short
short-
term capital gain.
4. Losses from a specified business will be set off only against profit of specified businesses.
But the losses from any other businesses or profession can be set off against profits from the
specified businesses.

Inter-head Set Off

After the intra-head
head adjustments, the taxpayers can set off remaining
remaining losses against income
from other heads.
Eg. Loss from house property can be set off against salary income

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Given below are few more such instances of an inter-head set off of losses:
1. Loss from House property can be set off against income under any head
2. Business loss other than speculative business can be set off against any head of income
except except income from salary.
One needs to also note that the following losses can’t be set off against any other head of
income:
a. Speculative Business loss
b. Specified business loss
c. Capital Losses
d. Losses from an activity of owning and maintaining race-horses
CARRY FORWARD OF LOSS
In case where the income of an assessment year is insufficient to set off the losses of the year
then such losses (which could not be set off) can be carried forward to subsequent assessment
year(s) for set off against income of such subsequent year(s). However, all losses cannot be
carried forward, e.g. losses under the head ‘Income from other sources’ (other than loss from
‘Activity of owning and maintaining race-horses’) cannot be carried forward. Following
losses can be carried forward:
1. Loss under the head ‘Income from house property’ [Sec. 71B]
2. Loss under head “Profits and gains of business or profession” other than speculation loss
[Sec. 72]
3. Loss from speculation business [Sec. 73]
4. Loss from specified business covered u/s 35AD [Sec. 73A]
5. Loss under the head ‘Capital gains’. [Sec. 74]
6. Loss from ‘Activity of owning and maintaining race horses’. [Sec. 74A]

SEC NATURE OF LOSS NUMBER TO BE SET OFF

OF AGIANST
YEARS
71B Loss under the head ‘Income 8 Years Income from house
from house property property
72 Loss under head “Profits and 8 Years Income from profits
gains of business or or gains from business
profession” other than or profession
speculation loss
73 Loss from speculation 4 years Income from
business speculation business
73A Loss from specified business Indefinite Income from specified
covered u/s 35AD period business covered u/s

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 35AD
74 Loss under the head ‘Capital 8 years Income under the
gains’ head ‘Capital gains’
1.Short term capital loss 1.Short term or long
2.Long term capital loss term capital gains
2.Long term capital
gains

74A Loss from ‘Activity of 4 years Income from ‘Activity

owning and maintaining race of owning and
horses’ maintaining race
horses’

DEDUCTIONS IN COMPUTING TOTAL INCOME

BASIC RULES
1. Deductions not available from: Deductions under chapter VIA are not available from - ●
long-term capital gain;
● short term capital gain covered u/s 111A (i.e., STCG on which STT is charged); and
● casual income like winning from lotteries, races, etc.

2. Limit of deduction: The aggregate amount of deduction under chapter VIA cannot exceed
Gross Total Income of the assessee excluding –
● long term capital gain;
● short term capital gain covered u/s 111A;
● casual income like winning from lotteries, card-games, horse races, etc.; and
● income referred in Sec.115A, 115AB, 115AC, 115ACA, etc.

3. Deduction must be claimed: Deduction under chapter VIA shall be available only if the
assessee claims for it.
4. Double deduction not permissible: Where deduction under any section of chapter VIA has
been claimed then the same shall not qualify for deduction in any other section.
There are various deductions a taxpayer can claim from his/her total income to bring down
taxable income and thereby reduce the tax outgo.

Basic rules for deduction: (Sec 80A/80AB/80AC):

 Deductions not to exceed gross total income

 No deduction is allowed unless the same is claimed in the return filed before the A.O
 Deductions to be claimed by the assessee.
 Assesse’s duty to place relevant material
 Deduction not to be allowed unless return furnished

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Sec 80B – Definition: Gross Total Income:
Gross total income means the total income computed in accordance with the provisions of
this Act, before making any deduction under this Chapter.

Section 80C
Deductions on Investments

You can claim a deduction of Rs 1.5 lakh your total income under section 80C. In simple
terms, you can reduce up to Rs 1,50,000 from your total taxable income, and it is available
for individuals and HUFs. The Income Tax Department will refund the excess money to your
bank account.

Section 80CCC – Insurance Premium

Deduction for Premium Paid for Annuity Plan of LIC or Other Insurer

Section 80CCC provides a deduction to an individual for any amount paid or deposited in any
annuity plan of LIC or any other insurer. The plan must be for receiving a pension from a
fund referred to in Section 10(23AAB). Pension received from the annuity or amount
received upon surrender of the annuity, including interest or bonus accrued on the annuity, is
taxable in the year of receipt.

Section 80CCD – Pension Contribution

Deduction for Contribution to Pension Account
a. Employee’s contribution under Section 80CCD (1)
You can claim this if you deposit in your pension account. Maximum deduction you can avail
is 10% of salary (in case the taxpayer is an employee) or 20% of gross total income (in case
the taxpayer being self-employed) or Rs 1.5 lakh – whichever is less.

Until FY 2016-17, maximum deduction allowed was 10% of gross total income for self-
employed individuals.

b. Deduction for self-contribution to NPS – section 80CCD (1B) A new section 80CCD (1B)
has been introduced for an additional deduction of up to Rs 50,000 for the amount deposited
by a taxpayer to their NPS account. Contributions to Atal Pension Yojana are also eligible.

c. Employer’s contribution to NPS – Section 80CCD (2) Claim additional deduction on your
contribution to employee’s pension account for up to 10% of your salary. There is no
monetary ceiling on this deduction.

Section 80D – Medical Insurance

Deduction for the premium paid for Medical Insurance

You (as an individual or HUF) can claim a deduction of Rs.25,000 under section 80D on
insurance for self, spouse and dependent children. An additional deduction for insurance of
parents is available up to Rs 25,000, if they are less than 60 years of age. If the parents are

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aged above 60, the deduction amount is Rs 50,000, which has been increased in Budget 2018
from Rs 30,000.

In case, both taxpayer and parent(s) are 60 years or above, the maximum deduction available
under this section is up to Rs.1 lakh.

Example: Rohan’s age is 65 and his father’s age is 90. In this case, the maximum deduction
Rohan can claim under section 80D is Rs. 100,000. From FY 2015-16 a cumulative
additional deduction of Rs. 5,000 is allowed for preventive health check.

Section 80DD – Disabled Dependent

Deduction for Rehabilitation of Handicapped Dependent Relative
Section 80DD deduction is available to a resident individual or a HUF and is available on:
a. Expenditure incurred on medical treatment (including nursing), training and rehabilitation
of handicapped dependent relative

b. Payment or deposit to specified scheme for maintenance of handicapped dependent

relative.
i. Where disability is 40% or more but less than 80% – fixed deduction of Rs 75,000.

ii. Where there is severe disability (disability is 80% or more) – fixed deduction of Rs
1,25,000.

To claim this deduction a certificate of disability is required from prescribed medical

authority. From FY 2015-16 – The deduction limit of Rs 50,000 has been raised to Rs 75,000
and Rs 1,00,000 has been raised to Rs 1,25,000.

Section 80DDB – Medical Expenditure

Deduction for Medical Expenditure on Self or Dependent Relative
a. For individuals and HUFs below age 60

A deduction up to Rs.40,000 is available to a resident individual or a HUF. It is available

with respect to any expense incurred towards treatment of specified medical diseases or
ailments for himself or any of his dependents. For an HUF, such a deduction is available with
respect to medical expenses incurred towards these prescribed ailments for any of the HUF
members.

b. For senior citizens and super senior citizens

In case the individual on behalf of whom such expenses are incurred is a senior citizen, the
individual or HUF taxpayer can claim a deduction up to Rs 1 lakh. Until FY 2017-18, the
deduction that could be claimed for a senior citizen and a super senior citizen was Rs 60,000
and Rs 80,000 respectively. This has now become a common deduction available upto Rs 1
lakh for all senior citizens (including super senior citizens) unlike earlier.

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c. For reimbursement claims

Any reimbursement of medical expenses by an insurer or employer shall be reduced from the
quantum of deduction the taxpayer can claim under this section.
Also remember that you need to get a prescription for such medical treatment from the
concerned specialist in order to claim such deduction.

Section 80E – Interest on Education Loan

Deduction for Interest on Education Loan for Higher Studies

A deduction is allowed to an individual for interest on loans taken for pursuing higher
education. This loan may have been taken for the taxpayer, spouse or children or for a student
for whom the taxpayer is a legal guardian.
80E deduction is available for a maximum of 8 years (beginning the year in which the interest
starts getting repaid) or till the entire interest is repaid, whichever is earlier. There is no
restriction on the amount that can be claimed.

Section 80G – Donations

Deduction for donations towards Social Causes

The various donations specified in u/s 80G are eligible for deduction up to either 100% or
50% with or without restriction. From FY 2017-18 any donations made in cash exceeding Rs
2,000 will not be allowed as deduction. The donations above Rs 2000 should be made in any
mode other than cash to qualify for 80G deduction.
a. Donations with 100% deduction without any qualifying limit

 National Defence Fund set up by the Central Government

 Prime Minister’s National Relief Fund
 National Foundation for Communal Harmony
 An approved university/educational institution of National eminence
 ZilaSaksharta Samiti constituted in any district under the chairmanship of the
Collector of that district
 Fund set up by a State Government for the medical relief to the poor
 National Illness Assistance Fund
 National Blood Transfusion Council or to any State Blood Transfusion Council
 National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental
Retardation and Multiple Disabilities
 National Sports Fund
 National Cultural Fund
 Fund for Technology Development and Application
 National Children’s Fund
 Chief Minister’s Relief Fund or Lieutenant Governor’s Relief Fund with respect to
any State or Union Territory

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  The Army Central Welfare Fund or the Indian Naval Benevolent Fund or the Air
Force Central Welfare Fund, Andhra Pradesh Chief Minister’s Cyclone Relief Fund,
1996
 The Maharashtra Chief Minister’s Relief Fund during October 1, 1993 and October
6,1993
 Chief Minister’s Earthquake Relief Fund, Maharashtra
 Any fund set up by the State Government of Gujarat exclusively for providing relief
to the victims of earthquake in Gujarat
 Any trust, institution or fund to which Section 80G(5C) applies for providing relief to
the victims of earthquake in Gujarat (contribution made during January 26, 2001 and
September 30, 2001) or
 Prime Minister’s Armenia Earthquake Relief Fund
 Africa (Public Contributions — India) Fund
 Swachh Bharat Kosh (applicable from financial year 2014-15)
 Clean Ganga Fund (applicable from financial year 2014-15)
 National Fund for Control of Drug Abuse (applicable from financial year 2015-16)
b. Donations with 50% deduction without any qualifying limit

 Jawaharlal Nehru Memorial Fund

 Prime Minister’s Drought Relief Fund
 Indira Gandhi Memorial Trust
 The Rajiv Gandhi Foundation

c. Donations to the following are eligible for 100% deduction subject to 10% of adjusted
gross total income

Government or any approved local authority, institution or association to be utilized for the
purpose of promoting family planning

Donation by a Company to the Indian Olympic Association or to any other notified

association or institution established in India for the development of infrastructure for sports
and games in India or the sponsorship of sports and games in India
d. Donations to the following are eligible for 50% deduction subject to 10% of adjusted gross
total income
Any other fund or any institution which satisfies conditions mentioned in Section 80G(5)

Government or any local authority to be utilized for any charitable purpose other than the
purpose of promoting family planning
Any authority constituted in India for the purpose of dealing with and satisfying the need for
housing accommodation or for the purpose of planning, development or improvement of
cities, towns, villages or both
Any corporation referred in Section 10(26BB) for promoting the interest of minority
community

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For repairs or renovation of any notified temple, mosque, gurudwara, church or other places.

Section 80GGB – Company Contribution

Deduction on contributions given by companies to Political Parties

Section 80GGB deduction is allowed to an Indian company for the amount contributed by it
to any political party or an electoral trust. Deduction is allowed for contribution done by any
way other than cash.

Section 80GGC – Contribution to Political Parties

Deduction on contributions given by any person to Political Parties
Deduction under section 80GGC is allowed to an individual taxpayer for any amount
contributed to a political party or an electoral trust. It is not available for companies, local
authorities and an artificial juridical person wholly or partly funded by the government. You
can avail this deduction only if you pay by any way other than cash.

Section 80 TTA – Interest on Savings Account

Deduction from Gross Total Income for Interest on Savings Bank Account
If you are an individual or an HUF, you may claim a deduction of maximum Rs 10,000
against interest income from your savings account with a bank, co-operative society, or post
office. Do include the interest from savings bank account in other income.

Section 80TTA deduction is not available on interest income from fixed deposits, recurring
deposits, or interest income from corporate bonds.

Section 80GG – House Rent Paid

Deduction for House Rent Paid Where HRA is not Received

a. Section 80GG deduction is available for rent paid when HRA is not received. The
taxpayer, spouse or minor child should not own residential accommodation at the place of
employment
b. The taxpayer should not have self-occupied residential property in any other place
c. The taxpayer must be living on rent and paying rent
d. The deduction is available to all individuals
Deduction available is the least of the following:

a. Rent paid minus 10% of adjusted total income

b. Rs 5,000/- per month
c. 25% of adjusted total income*

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*Adjusted Gross Total Income is arrived at after adjusting the Gross Total Income for certain
deductions, exempt income, long-term capital gains and income related to non-residents and
foreign companies.

Section 80RRB – Royalty of a Patent

Deduction with respect to any Income by way of Royalty of a Patent
80RRB Deduction for any income by way of royalty for a patent, registered on or after 1
April 2003 under the Patents Act 1970, shall be available for up to Rs.3 lakh or the income
received, whichever is less. The taxpayer must be an individual patentee and an Indian
resident. The taxpayer must furnish a certificate in the prescribed form duly signed by the
prescribed authority.

ASSESSMENT PROCEDURE
Assessment means to assess the income of the assessee i.e. to decide the income and tax
liability of the assessee on the basis of return filed, information gathered or to the best of
judgment of income tax department. It begins with self-assessment i.e. assessment by the
assessee himself.
Types of Assessment Under Income Tax Act, 1961 these are the types of assessment as
mentioned below:

 Self assessment –u/s 140A

 Summary assessment –u/s 143(1)
 Scrutiny assessment –u/s 143(3)
 Best Judgment Assessment –u/s 144
 Re-assessment or Income escaping assessment –u/s 147
 Assessment in case of search –u/s153A.

Self assessment
The assessee himself determines the income tax payable. The tax department has made
available various forms for filing income tax return. The assessee consolidates his income
from various sources and adjusts the same against losses or deductions or various exemptions
if any, available to him during the year. The total income of the assessee is then arrived at.
The assessee reduces the TDS and Advance Tax from that amount to determine the tax
payable on such income. Tax, if still payable by him, is called self assessment tax and must
be paid by him before he files his return of income. This process is known as Self
Assessment.

Summary assessment
It is a type of assessment carried out without any human intervention. In this type of
assessment, the information submitted by the assessee in his return of income is cross-
checked against the information that the income tax department has access to. In the process,

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the reasonableness and correctness of the return are verified by the department. The return
gets processed online, and adjustment for arithmetical errors, incorrect claims, and
disallowances are automatically done. Example, credit for TDS claimed by the taxpayer is
found to be higher than what is available against his PAN as per department records. Making
an adjustment in this regard can increase the tax liability of the taxpayer.
After making the aforementioned adjustments, if the assessee is required to pay tax, he will
be sent an intimation under Section 143(1). The assessee must respond to this intimation
accordingly. Here you can read a more detailed article on Section 143(1).
Scrutiny assessment
Scrutiny assessment refer to the examination of a return of income by giving opportunity to
the assessee to substantiate the income declared and the expenses, deduction, losses,
exemptions, etc. claimed in the return with the help of evidence. During the course of
scrutiny, the assessing officer gets opportunity to conduct enquiry as he deemed fit from the
assessee and from third parties. The exercised is aimed at ascertaining whether the income in
the return is correctly shown by the assessee and whether the claims for deductions,
exemptions etc. are factually and legally correct. If any omission, discrepancies, inaccuracies,
etc. comes light to as a result of examination, the assessing officer makes his own assessment
of the assessee’s taxable income after taking into consideration all the relevant facts. These
assessments are made under section 143(3) of the income tax act. The case selected for
Scrutiny Assessment can be of by two types - i.e. (1) Manual scrutiny cases and (2)
Compulsory Scrutiny cases.

Best Judgment Assessment

This assessment gets invoked in the following scenarios:
a. If the assessee fails to respond to a notice issued by the department instructs him to
produce certain information or books of accounts
b. If he/she fails to comply with a Special Audit ordered by the Income tax authorities
c. The assessee fails to file the return within due date or such extended time limit as allowed
by the CBDT
d. The assessee fails to comply with the terms as contained in the notice issued under
Summary Assessment
After providing an opportunity to hear the assessee’s argument, the assessing officer passes
an order based on all the relevant materials and evidence available to him. This is known as
Best Judgement Assessment.

Income Escaping Assessment

When the assessing officer has sufficient reasons to believe that any taxable income has
escaped assessment, he has the authority to assess or reassess the assessee’s income. The time

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limit for issuing a notice to reopen an assessment is 4 years from the end of the relevant
assessment Year. Some scenarios where reassessment gets triggered are given below.
a. The assessee has taxable income but has not yet filed his return.
b. The assessee, after filing the income tax return, is found to have either understated his
income or claimed excess allowances or deductions.
c. The assessee has failed to furnish reports on international transactions, where he is required
to do so.
Assessment could close quickly for some taxpayers, while it could prove to be quite gruelling
for others. If you are not comfortable dealing with income tax officers, it is suggested that
you take the help of a Chartered Accountant to help you with your case.
Assessment in case of search
Notwithstanding anything contained in section 139, section 147, section 148, section 149,
section 151 and section 153, in the case of a person where a search is initiated under section
132 or books of account, other documents or any assets are requisitioned under section 132A
after the 31st day of May, 2003, The Assessing Officer shall - (a) issue notice to such person
requiring him to furnish within such period, as may be specified in the notice, the return of
income in respect of each assessment year falling within six assessment years referred to in
clause (b) in the prescribed form and verified in the prescribed manner and setting forth such
other particulars as may be prescribed and the provisions of this Act shall, so far as may be,
apply accordingly as if such return were a return required to be furnished under section 139;
(b) Assess or reassess the total income of six assessment years immediately preceding the
assessment year relevant to the previous year in which such search is conducted or requisition
is made. Note: Sec. 153A contemplates issue of notice for 6 years preceding the search but
not for the year of search or requisition and thus no return is required to be filed for the year
of search u/s 153A. Only regular return u/s139 is to be filed.

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 UNIT IV

INDIRECT TAXATION

GOODS AND SEVICES TAX ACT

Kindly note down that this chapter is divided into three parts and the basic concepts are
the same in all three parts. The first part will be dealt in detail and the similar topics in
part two and three will not be discussed again. Only the topics which are exclusive for
part two and three will be discussed.

CGST

ADMINISTARTION

SECTION 3- Officers under this Act.

The Government shall, by notification, appoint the following classes of officers for the
purposes of this Act, namely:––

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  Principal Chief Commissioners of Central Tax or Principal Directors General of
Central Tax
 Chief Commissioners of Central Tax or Directors General of Central Tax,
 Principal Commissioners of Central Tax or Principal Additional Directors General of
Central Tax
 Commissioners of Central Tax or Additional Directors General of Central Tax
 Additional Commissioners of Central Tax or Additional Directors of Central Tax
 Joint Commissioners of Central Tax or Joint Directors of Central Tax,
 Deputy Commissioners of Central Tax or Deputy Directors of Central Tax,
 Assistant Commissioners of Central Tax or Assistant Directors of Central Tax, and
any other class of officers as it may deem fit:

Provided that the officers appointed under the Central Excise Act, 1944 shall be deemed to be
the officers appointed under the provisions of this Act.

SECTION 4 Appointment of officers.

(1) The Board may, in addition to the officers as may be notified by the Government under
section 3, appoint such persons as it may think fit to be the officers under this Act

(2) Without prejudice to the provisions of sub-section (1), the Board may, by order, authorise
any officer referred to in clauses (a) to (h) of section 3 to appoint officers of central tax below
the rank of Assistant Commissioner of central tax for the administration of this Act.

SECTION 5. Powers of officers.

(1) Subject to such conditions and limitations as the Board may impose, an officer of central
tax may exercise the powers and discharge the duties conferred or imposed on him under this
Act.

(2) An officer of central tax may exercise the powers and discharge the duties conferred or
imposed under this Act on any other officer of central tax who is subordinate to him.

(3) The Commissioner may, subject to such conditions and limitations as may be specified in
this behalf by him, delegate his powers to any other officer who is subordinate to him.

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(4) Notwithstanding anything contained in this section, an Appellate Authority shall not
exercise the powers and discharge the duties conferred or imposed on any other officer of
central tax.

SECTION 7- SCOPE OF SUPPLY

Sec 7(1)(a) – Supply Includes

 All forms of supply of goods or services or both such as sale, transfer, barter,
exchange, license, rental, lease or disposal made or agreed to be
 made for consideration
 in the course of furtherance of business.

Eg for sale: Mr.X sold laptop worth Rs.1000/- and issued invoice in favour of Y. Now
ownership of the laptop is transferred to Y. Such transaction is a sale. It is a supply of goods
leviable to GST.

Consideration

Means – payment in money or otherwise for the supply

Includes – monetary and non-monetary consideration

By - recipient or any other person

Excludes – subsidiary by Central/State Governments.

Eg: A sports club agrees to hire services of a cricket player for a consideration of 2 crores. In
addition to this the player shall also be given a car worth 20 lakhs. The entire value of 2.20
crores will be considered as consideration and subject to tax.

Sec 7(1)(b) – Import of services

 applicable only for services not for goods

 services should be provided for consideration
 services may be in the furtherance of business or not

Eg: Mr.R a proprietor has received architect services for his house from an architect located
in New York at an agreed consideration of 5000 dollars. The import of services under section
7(1)(b) though not in furtherance of a business is a supply.

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Sec 7(1)(c) – Deemed Supply – Supply without any consideration

 Permanent transfer / disposal of business assets where Input Tax Credit has been
availed.
Eg: A dealer of AC permanently transfers an AC from his stock in trade for personal
use at his residence. This transaction constitutes permanent transfer / disposal of
assets. The only condition is Input Tax Credit must have been availed.
 Supply between related persons or distinct persons
Related persons – officers, legally recognized partners, employer and employee,
members of the same family.
Eg: Transfer of goods from a unit located in Delhi to Research and Development unit
in Punjab is treated as a supply even if there is no consideration.
Distinct person – separate registration makes a distinct person and establishment in
another state is a distinct person. Hence Stock transfer or branch transfer will qualify
as supply.
 Supply between principal- agent
Eg: ABC Manufactures Ltd engaged D Ltd as an agent to sell goods on behalf of
them. The transfer of goods from ABC Ltd to D Ltd will qualify as supply even
though D Ltd has not paid any consideration.
 Importation of services

Without Consideration

With Consideration

Related Other
persons / cases

Not in the distinct

In the course persons in the
course of
of furtherance course of
furtherance
of business business
of business

Not Taxable

Taxable Taxable
Taxable
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Section 7(2): Activities which are to be treated neither as supply of goods nor supply of
services.

Notwithstanding anything contained in sub-section (1), ––

(a) activities or transactions specified in Schedule III; or

(b) such activities or transactions undertaken by the Central Government, a State Government
or any local authority in which they are engaged as public authorities, as may be notified by
the Government on the recommendations of the Council,

shall be treated neither as a supply of goods nor a supply of services.

SCHEDULE III

1. Services by an employee to the employer in the course of or in relation to his employment.

2. Services by any court or Tribunal established under any law for the time being in force. 3.
(a) the functions performed by the Members of Parliament, Members of State Legislature,
Members of Panchayats, Members of Municipalities and Members of other local authorities;

(b) the duties performed by any person who holds any post in pursuance of the provisions of
the Constitution in that capacity; or (c) the duties performed by any person as a Chairperson
or a Member or a Director in a body established by the Central Government or a State
Government or local authority and who is not deemed as an employee before the
commencement of this clause.

4. Services of funeral, burial, crematorium or mortuary including transportation of the

deceased.

5. Sale of land and, subject to clause (b) of paragraph 5 of Schedule II, sale of building.

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6. Actionable claims, other than lottery, betting and gambling.

Explanation. —For the purposes of paragraph 2, the term "court" includes District Court,
High Court and Supreme Court.

Section 7(3) -Central Govt recommendations

Subject to the provisions of sub-sections (1) and (2), the Government may, on the
recommendations of the Council, specify, by notification, the transactions that are to be
treated as—

(a) a supply of goods and not as a supply of services; or

(b) a supply of services and not as a supply of goods.

SECTION 8: TAX LIABILITY ON COMPOSITE AND MIXED SUPPLY

Section 8(a)- Composite supply

 A composite supply comprising two or more supplies, one of which is a principal

supply, shall be treated as a supply of such principal supply.
 Supply made by a taxable person to the recipient
 Consisting of two or more taxable supplies of goods or services or both.
 Which are naturally bundled and supplied with each other in the ordinary course of
business. One of which is a principal supply.

Eg: S Manufactures entered into a contract with XYZ Ltd for supply of readymade shirts
packed in designer boxes with transport and insurance. In this case supply of goods,
packing material, insurance are composited supply. Where the principle supply is the
supply of goods.

A travel ticket from Mumbai to Delhi may also include service of food on board, free
insurance and the usage of lounge. This a composite supply where transport is a principal
supply.

Section 8(b)- Mixed supply

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  A mixed supply comprising two or more supplies shall be treated as a supply of that
particular supply which attracts the highest rate of tax.
 Two or more individual supplies of goods or services given by a taxable person for a
single price.
 Goods are not naturally blended and are independent of each other.
 Highest rate of tax of the goods will be taken into account.

Eg: A supply of package consisting of canned goods, sweets, chocolates, cake etc when
supplied for a single price is a mixed supply. Each of these goods can be supplied
separately and is not dependent on each other. Rate of tax will be taken as the highest rate
of tax on the goods.

Determination whether a supply is composite or mixed

Nature of Goods/ supply Composite Mixed

Naturally blended Yes No
Supplied together Yes Yes
Can be supplied separately No Yes
One is pre-dominant supply for recipient Yes No
Each supply prices separately No Yes
All supplies are goods Yes Yes
All supplies are services Yes Yes
One supply is a good another is supply Yes Yes

SECTION 9 of CGST, SECTION 5 of IGST – LEVY AND COLLECTION.

Section 9(1) – Levy and collection

 CGST levied on all intra- state supplies of goods, services or both

 except on the supply of alcoholic liquor for human consumption
 value determined under section 15 and at such rates, not exceeding twenty per cent
 shall be paid by the taxable person.

Section 9(2) – Levy of GST on petroleum products

 tax on the supply of

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  petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural
gas and aviation turbine fuel
 levied with effect from such date as may be notified by the Government on the
recommendations of the Council.

Section 9(3) – CGST to be paid on reverse charge basis

 Government may, on the recommendations of the Council

 specify categories of supply of goods or services or both
 tax on which shall be paid on reverse charge basis by the recipient of such goods or
services.

Normal GST Payment Process

Goods
Supplier of Receiver of Government
goods/service Price & GST goods/service
s s
GST

GST payment in case of reverse charge

Goods GST
Supplier of Receiver of Government
Price & GST
goods/services goods/services

Section 9(4) – Taxable supply of goods/services by unregistered supplier

 supplier, who is not registered

 supply to a registered person
 recipient shall pay the GST through reverse charge.

Section 9(5) – E-commerce operator liable to pay tax on notified services

Supplier Sells it on Amazon(E-commerce operator) Consumer

 On placing the order the specified supplier supplies the goods to the consumer.
 Price is received by the e-commerce operator and he is liable to pay GST.

Liability to pay GST

 Forward charge: Taxable person making a supply

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  Reverse charge: Recipient of supply
 E-commerce: E-commerce operator.

SECTION 10 – COMPOSITION LEVY

An option for specified categories of small tax payers to pay GST at a very low rate on the
basis of turn over.

Advantages:

 Low rate of tax

 Hassel free simple procedure for such tax payers
 Simple calculation of tax based on turnover.

Section10(1) – Applicability

 registered person
 aggregate turnover in the preceding financial year did not exceed 1.5 crore rupees,
may opt to pay
 some special category states like Arunachal Pradesh, Assam, Sikkim etc composite
levy can be claimed if the aggregate levy is 75 lakhs.
 If the turnover is exactly one crore or 75 lakhs also composition levy can be availed.

Section10(2) – Persons not eligible to opt for composition levy

(a) he is not engaged in the supply of services other than supplies referred to in clause
(b) of paragraph 6 of Schedule II;

(b) he is not engaged in making any supply of goods which are not leviable to tax
under this Act;

(c) he is not engaged in making any inter-State outward supplies of goods;

(d) he is not engaged in making any supply of goods through an electronic commerce
operator who is required to collect tax at source under section 52; and

(e) he is not a manufacturer of such goods as may be notified by the Government on

the recommendations of the Council.

Section10(3) – Lapse of the option of composition levy

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  The option availed of by a registered person under sub-section (1) shall lapse with
effect from the day on which his aggregate turnover during a financial year exceeds
the limit specified under sub-section (1).
 Aggregate turnover of a registered firm during 2019-2020 is 98,00,000/- During
2020-2021 till 18.09.2020 his turnover is 98,00,000/-. On 19.09.2020 he issues three
invoices for Rs. 1,00,000, Rs,75,000, Rs.1,10,000/. After 19.09.2020 he cannot avail
composition levy and has to pay GST under normal scheme.

Section10(4) – Person who opts for composition scheme

 shall not collect any tax from the recipient on supplies made by him.
 Shall not be entitled to any ITC.

Section10(5) – Penal Consequences

 taxable person has paid tax under 10(1) despite not being eligible
 liable to a penalty and the provisions of section 73 or section 74 shall, mutatis
mutandis, apply for determination of tax and penalty.

Composition scheme rates

TYPE OF BUSINESS CSGT SGST TOTAL

Manufacture and traders (Goods) 0.5% 0.5% 1%
Restaurants not serving alcohol 2.5% 2.5% 5%
Other service providers 3% 3% 6%

SECTION 11- POWER TO GRANT EXEMPTION FORM TAX

 Exempt by Notification -Exempt generally, either absolutely or subject to conditions

as may be specified to goods or services of any specified description.
 Exempt by Special order – Exempt from payment of tax under circumstances of
exceptional nature to be stated in such order in public interest.

SECTION 12- TIME OF SUPPLY OF GOODS(TOS)

Fixes the point where the liability to charge GST arises.

Section12(1) - The liability to pay tax on goods shall arise at the time of supply, as
determined in accordance with the provisions of this section.

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 Section12(2) – Time of supply under forward charge

Date of issue of invoice /

last day of issue of
invoice u/s 31

Whichever is earlier
TOS- Date on which payment
GOODS- is recorded in the books
FORWARD of accounts of the
CHARGE supplier

Date on which the

payment is credited to
the supplier’s bank
account

Eg: R supplies material to G on 10.05.2020 and raises invoice on the same day. Payment
received on 25.05.2020 and entered into his books of accounts on the same day. Credited to
his account on 27.5.2020. Time of supply?

TOS is 10.05.2020 (earlier of the three)

Section12(3) – Time of supply under reverse charge

Date on which goods

are received

Date on which payment

is recorded in the books
Whichever is earlier

of accounts of the
recipient

TOS-GOODS-
REVERSE Date on which the
CHARGE payment is debited from
the bank account of the
recipient

31st day from the issue

of invoice by the
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Note: If it is not possible to determine the time of supply through above parameters, then
TOS will be the date on which goods are recorded in the books of accounts of the recipient of
supply.

Eg: R is not a registered person and supplies goods to G who is a registered person.

 Date of receipt of goods by G – 26.11.2020

 Date on which payment is recorded in the books of accounts of G – 22.12.2020
 Date on which the payment is debited from the bank account of G – 24.12.2020
 Date of issue of invoice by R- 20.11.2019
 31st day from the issue of invoice by the supplier – 21.12.2020
Time of supply- 26.11.2020 (earlier of the given parameters)

Section12(4) – Time of supply in case of voucher (exchangeable for goods)

TOS

Food Pass (Any food Shirt Coupon (Only a

can be purchased from shirt can be purchased
the food pass) from the shirt coupon)

Supply is not Supply is identifiable

identifiable at the time at the time of issue of
of issue of voucher voucher

Date of redemption of Date of issue of

voucher voucher

Section12(5) –Residuary powers

Not possible to determine the time of supply under the provisions of sub-section (2) or sub-
section (3) or sub-section (4), the time of supply shall be

TOS

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 When a periodical Other cases
return is to be filed

Date on which return Date on which GST is

is required to be filed paid

SECTION 13- TIME OF SUPPLY OF SERVICES(TOS)

Section13(1) - The liability to pay tax on services shall arise at the time of supply, as
determined in accordance with the provisions of this section.

Section13(2)- TOS under forward charge where invoice is issued within the time specified
under section 31(2)

TOS under forward charge where invoice is issued

within the time specified under section 31(2)

Date of issue Date of recording Date on which

of tax invoice of payment in the payment is credited
books of accounts in the bank account
of the supplier of the supplier

Whichever is earlier

TOS under forward charge where invoice is not issued within the time specified under section
31(2)

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TOS under forward charge where invoice is not issued within the
time specified under section 31(2)
 Date of Date of recording of Date on which payment
provision of payment in the books of is credited in the bank
service accounts of the supplier account of the supplier

Whichever is earlier

Section13(3)- Time of supply of service under reverse charge

TOS of service under reverse charge

Date of recording of Date on which 61st day from

payment in the books of payment is debited the supplier’s
accounts of the recipient in the bank account invoice
of service of the recipient of
service

Whichever is earlier

Section13(4)- Time of supply of vouchers exchangeable as services

TOS of vouchers
exchangeable as services

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Date of issue of voucher, Date of redemption of
if the supply is voucher in other cases
identifiable at that point

SECTION 15 – VALUE OF SUPPLY

 GST is payable on the value of taxable supply of goods or services or both.

 Value on which tax will be computed and paid under GST laws.

Section 15(1) - Where the supplier and the recipient of the supply are not related and
the price is the sole consideration for the supply.

 Supplier and recipient are not related

 Price is the sole consideration for supply
 Assessable value = Transaction value under section 15
 Transaction value shall be considered as the actual price paid or payable for the
supply of goods or services.
 It includes any mount collected by the supplier from the recipient and the supplier has
to pay it.

Section 15(2) – What can be included in supply

1. Any taxes, duties, cesses, fees and charges levied under any law for the time being in
force other than CGST, SGST, UTGST.
 Eg: R a trader has agreed to supply certain imported good for 15lakhs and the
basic customs duty (BCD) is 1,50,000/-. What is the value of supply?
 BCD is also included in the transaction value if it is charged separately in the
invoice. Value of supply is 16,50,000/-
2. Payment made to a third party by the recipient on behalf of the supplier but which has
been incurred by the recipient
 Eg: Grand Organisers contracts with ABC Ltd to conduct a dealers meeting. In
furtherance of this Grand organizers’ contracts with vendors for supply of
water, refreshments, catering etc. Grand Organizers is liable to make the
payment to these vendors. The soft drink supplier wants payment upon
delivery. ABC Ltd agrees to pay the bill. This amount is not billed by Grand

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 Organisers to ABC Co. However, it would be added to the value of the service
provided by Grand organisers to ABC for payment of GST.
3. Incidental expenses, including commission and packing, charged by the supplier to
the recipient of a supply and any amount charged for anything done by the supplier in
respect of the supply of goods or services or both at the time of, or before delivery of
goods or supply of services.
 Eg: R Ltd agrees to supply TV to G at his residence. R raises invoice for
Rs.80,000/-. Tempo charges for bringing the TV=Rs.2,000/-. Value of taxable
supply is 80,000+2,000=82,000/-
4. Interest or late fee or penalty for delayed payment of any consideration for any
supply.
 Value of supply of goods if payment is made by 25.5.2020- Rs.5,00,000/-
Payment made after 25.5.2020(interest for delayed payment)-Rs. 20,000/-
Value of taxable supply = 5,00,000+20,000 =5,20,000/-
5. Subsidies directly linked to the price excluding subsidies provided by the Central
Government and State Governments.
 The selling price of a notebook is Rs.50/-. For notebooks sold to students in
Government schools, a c company uses its CSR funds to pay the seller Rs.30/-
so that the students can pay only Rs.20/- The taxable vale of the notebook will
be Rs.50 as this is non-governmental subsidy. If the same subsidy is paid by
the central or state government, the taxable value of the notebook will be
Rs.30/-

Section 15(3) - Value of the supply shall not include any discount

 before or at the time of the supply if such discount has been duly recorded in the
invoice
 after the supply has been effected
o such discount is established in terms of an agreement entered into at or before
the time of such supply and specifically linked to relevant invoices;
o input tax credit as is attributable to the discount on the basis of document
issued by the supplier has been reversed by the recipient of the supply.
 Eg: Royal Biscuit Company gives a discount of 30% on the list price to its
distributors. Thus, for a carton of biscuits, in the invoice the list price is mentioned as
Rs.200/- on which a discount od 30% is given to arrive at the final price of Rs.140/-.
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 The taxable value is Rs.140/- as the discount is allowed at the time of supply and
shown in the invoice.

Section 15(4) -Where the value of the supply of goods or services or both cannot be
determined under sub-section (1), the same shall be determined in such manner as may
be prescribed.

Central Goods and Services Tax (CGST) Rules, 2017

Rule 27. Value of supply of goods or services where the consideration is not wholly in
money.

Rule 28. Value of supply of goods or services or both between distinct or related persons,
other than through an agent.

Rule 29. Value of supply of goods made or received through an agent.

Rule 30. Value of supply of goods or services or both based on cost.

Rule 31. Residual method for determination of value of supply of goods or services or both.

INPUT TAX CREDIT

Input credit means at the time of paying tax on output, you can reduce the tax you have
already paid on inputs and pay the balance amount.

When you buy a product/service from a registered dealer you pay taxes on the purchase. On
selling, you collect the tax. You adjust the taxes paid at the time of purchase with the amount
of output tax (tax on sales) and balance liability of tax (tax on sales minus tax on purchase)
has to be paid to the government. This mechanism is called utilization of input tax credit.

For example- you are a manufacturer:

a. Tax payable on output (FINAL PRODUCT) is Rs 450

b. Tax paid on input (PURCHASES) is Rs 300

c. You can claim INPUT CREDIT of Rs 300 and you only need to deposit Rs 150 in taxes.

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SECTION 16- ELIGIBILITY AND CONDITIOS FOR CLAIMING ITC

Section 16(1) – Who can claim ITC

 Only a registered person

 Who are using goods or services for business purpose

Section 16(2) – Conditions for claiming ITC

 He has received goods or services

 He is in possession of tax invoice or debit note or tax paying document.
 Tax on such supply has been paid to the Government
 He has furnished the returns.

Section 16(3) – Depreciation claimed on tax component, no ITC

If the person taking ITC on capital goods and plant and machinery has claimed depreciation
on the tax component of the cost of the said items under Income Tax Act,1961 then ITC on
the said component shall not be allowed.

Eg: ABC Ltd being a manufacturer purchased machinery

machinery worth Rs.10,00,000/-
Rs.10,00,000/ on which
GST is rs.1,80,000/- is paid. The manufacturer has the following two options

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  Option 1: Claim depreciation on the entire value of the machinery inclusive of GST
(i.e on 11,80,000/-) by forgoing ITC on capital goods.
 Option 2 : Claim depreciation on the cost of the machine (i.e 10,00,000/-) and avail
the ITC of GST on 1,80,000/-

Section 16(4) – Time limit for availing ITC

 Due date for filing of return for the month of September of succeeding financial year
(i.e 20 days after the end of the calendar month -20th October)

Or

Due date of filing of annual return (on or before 31st December)

Whichever is earlier.

 Eg: X Ltd submitted annual return for FY 2018-19 on 15.09.2019 and the return for
September 2019 was filed on 19.10.2019. Find out the time limit within which ITC
can be availed.

15.09.2019 or 19.10.2019 – whichever is earlier. ITC can be claimed on or before

15.09.2019.

SECTION 17 – APPORTIONMENT OF ITC

Section 17(1) – Where goods or services are used partly for business purposes and
partly for other purposes.

 Partly for business purposes – ITC can be availed to the extent of goods and services
used for business purposes.
 Partly for other purposes – ITC not available.
 Eg: R owns a bakery. Total ITC in respect of milk products received =Rs.80,000/-
Milk products sold in the course of business=70%
Milk product used in the birthday party of his daughter=30%
R is entitled to take ITC of rs.56,000/-(80,000*70%)

Section 17(2) - Where goods or services are used partly for effecting taxable supply
including zero rated supply and partly for exempted supply

 Partly for effecting taxable supplies including zero rated supply – ITC availed to the
extent of goods and services used for taxable supplies.

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  Partly for effecting exempt supplies – ITC not available.

Section 17(5): Blocked credit – goods or services or both on which ITC shall not be
available.

 motor vehicles and other conveyances except when they are used for
o further supply of such vehicles or conveyances; or
o transportation of passengers; or
o imparting training on driving, flying, navigating such vehicles or conveyances;
o for transportation of goods
 the following supply of goods or services or both
o food and beverages, outdoor catering, beauty treatment, health services,
cosmetic and plastic surgery except where an inward supply of goods or
services or both of a particular category is used by a registered person for
making an outward taxable supply of the same category of goods or services
or both or as an element of a taxable composite or mixed supply.
 membership of a club, health and fitness centre
 travel benefits extended to employees on vacation such as leave or home travel
concession
 goods or services or both received by a taxable person for construction of an
immovable property (other than plant or machinery) on his own account including
when such goods or services or both are used in the course or furtherance of business.
 goods or services or both on which tax has been paid under section 10(composition
levy)
 goods lost, stolen, destroyed, written off or disposed of by way of gift or free samples
 goods or services or both received by a non-resident taxable person except on goods
imported by him
 goods or services or both used for personal consumption.

SECTION 18 – ITC IN SPECIAL CIRCUMSTANCES

 At the time of registration

 At the time of compulsory registration
 Opting out of Composition levy
 Conversion of exempted supply to taxable supply

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  Other cases

Note: Time limit to take ITC – One year from the date of issue of tax invoice.

REGISTRATION

SECTION 22 – PERSONS LIABLE FOR REGISTRATION

 Who are registered under earlier law- Liable to be registered under GST
 Those who exceed threshold limit
o Aggregate turnover >Rs 40 lakh
o Aggregate turnover > Rs 20 lakh in case of special category states.
 In case of transfer of business on account of succession etc – Transferee liable to be
registered from the date of succession of the business
 In case of amalgamation/demerger by an order of High court etc – Transferee liable to
be registered from the date on which the registrar of companies’ issues incorporation
certificate giving effect to the order of the High court order.

SECTION 23 – PERSONS NOT LIABLE FOR REGISTRATION

 Persons engaged exclusively in supplying goods/services but not liable to tax

 Person engaged exclusively in supplying goods/ services both wholly exempt from
tax.
 Agriculturist limited to supply of produce out of cultivation land.
 Specified category of persons notified by the government.

Notified persons:

 Person making interstate supply of taxable services having aggregate turnover not
exceeding Rs,20,00,000/-
 Persons engaged in making taxable supply, total tax on which is liable to be paid
on reverse charge basis.
 Casual taxable person making taxable supplies of handicraft goods and handmade
shawls, stoles etc.
 Job workers engaged in making interstate supply of services.

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SECTION 24 – COMPULSORY REGISTRATION IN CERTAIN CASES

 Person making inter state supply subject to notification

 Person who are required to pay tax under reverse charge basis
 Casual taxable person who does not have a fixed place of business in the state or
union territory from where he wants to make supply
 Non-resident taxable person making taxable supply
 Persons who are required to deduct TDS u/s whether or not separately registered
under the Act
 person who are required to pay tax under sub-section (5) of section 9 – E-Commerce
operator who are required to pay tax on specified services
 persons who supply goods or services or both, other than supplies specified under
sub-section (5) of section 9, through such electronic commerce operator who is
required to collect tax at source under section 52;
 every electronic commerce operator
 every person supplying online information and database access or retrieval services
from a place outside India to a person in India, other than a registered person;
 Input Service Distributor, whether or not separately registered under this Act
 such other person or class of persons as may be notified by the Government on the
recommendations of the Council

SECTION 25 – PROCEDURE FOR REGISTRATION

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  Single registration in each state. Business entities having branches in multiple states
will have to take separate state wise registration for different branches.
 If an entity has multiple branches in a single state – declare one place as the principal
place of business.

SECTION 28 – AMENDMENT OF GST REGISTRATION

Amendment of Core & Non-Core fields

The application for Amendment of Registration can be categorised into two types:

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  Application for Amendment of Core fields in Registration: Core fields are one
which requires approval from the jurisdictional officer. Eg legal name of the business,
Addition/ deletion of stakeholder details, Principal place of business, Additional place
of business.

 Application for Amendment of Non-Core fields in Registration: Non-core fields

of GST registration are one that does not require approval from a tax official and will
be auto-updated after successful filing.

SECTION 29 – CANCELLATION OF GST RESGISTRATION

 Proper officer may, either on his own motion or on an application filed by the
registered person or by his legal heirs, in case of death of such person, cancel the
registration, in such manner and within such period as may be prescribed, having
regard to the circumstances where

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 o the business has been discontinued, transferred fully for any reason including
death of the proprietor, amalgamated with other legal entity, demerged or
otherwise disposed of
o there is any change in the constitution of the business
o the taxable person, other than the person registered under sub-section (3) of
section 25, is no longer liable to be registered under section 22 or section 24.
 The proper officer may cancel the registration of a person from such date, including
any retrospective date, as he may deem fit, where

(a) a registered person has contravened such provisions of the Act or the rules made
thereunder as may be prescribed; or

(b) a person paying tax under section 10 has not furnished returns for three consecutive
tax periods; or

(c) any registered person, other than a person specified in clause (b), has not furnished
returns for a continuous period of six months; or

(d) any person who has taken voluntary registration under sub-section (3) of section 25
has not commenced business within six months from the date of registration; or

(e) registration has been obtained by means of fraud, wilful misstatement or suppression
of facts:

Provided that the proper officer shall not cancel the registration without giving the person
an opportunity of being heard.

 The cancellation of registration under this section shall not affect the liability of the
person to pay tax and other dues under this Act or to discharge any obligation under
this Act or the rules.
 The cancellation of registration under the State Goods and Services Tax Act or the
Union Territory Goods and Services Tax Act, as the case may be, shall be deemed to
be a cancellation of registration under CGST.
 On cancellation – pay ITC availed on goods in stock or output tax whichever is
higher.

SECTION 30 – REVOCATION OF CANCELLATION OF REGISTRATION

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  Application for restoration of registration to be made within 30 days from the
service of cancellation order.
 The proper officer may, in such manner and within such period as may be
prescribed, by order, either revoke cancellation of the registration or reject the
application: Provided that the application for revocation of cancellation of
registration shall not be rejected unless the applicant has been given an
opportunity of being heard.
 The revocation of cancellation of registration under the State Goods and Services
Tax Act or the Union Territory Goods and Services Tax Act, as the case may be,
shall be deemed to be a revocation of cancellation of registration under this Act.

SECTION 31- TAX INVOICE

 Document issued to the recipient specifying the taxable goods or services as well as
value of taxable supply.
 Who can raise an invoice?
Registered person can raise an invoice.
o For supplying taxable goods/services
o Receiving taxable goods/services from an unregistered supplier.
 Time limit for issuance of invoice
Supply of Goods – No movement of goods – at the time of delivery
Supply of goods – Movement of goods – At the time of removal
Supply of services – Within 30 days from the supply of services.
 Eg: R manufactures, Delhi supplies goods to Prakash Electronics, Haryana. The goods
were removed from its factory on 23.9.2020. R manufactures needs to issue a tax
invoice on or before 23.09.2020.
 Eg: Security services Ltd provides security to Alukas Jewellers for their exhibition to
be organized on 5.10.2020. Security service Ltd have to issue invoice within 30 days
from the supply of services (i.e on or before 4.11.2020)

SECTION 34 – CREDIT AND DEBIT NOTES

CREDIT NOTE

Registered supplier of goods/services or both may issue credit note to recipient of

goods/services or both if

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  Taxable value in invoice > Taxable value in respect of such supply
 Tax charged in invoice > Tax payable in respect of such supply
 Where the goods supplier are returned by the recipient
 Where goods or services botn are found to be deficient

DEBIT NOTE

Registered supplier of goods/services or both may issue debit note to the recipient of
goods/services or both if

 Taxable value in invoice< taxable value in respect of such supply

 Tax charged in invoice < Tax payable in rescpect on such suply.

SECTION 35 - ACCOUNTS AND OTHER RECORDS

 Every registered person shall keep and maintain, at his principal place of business, as
mentioned in the certificate of registration, a true and correct account of—
(a) production or manufacture of goods;
(b) inward and outward supply of goods or services or both;
(c) stock of goods;
(d) input tax credit availed;
(e) output tax payable and paid; and
(f) such other particulars as may be prescribed
 The Commissioner may notify a class of taxable persons to maintain additional
accounts or documents for such purpose as may be specified therein.
 Where the Commissioner considers that any class of taxable person is not in a
position to keep and maintain accounts in accordance with the provisions of this
section, he may, for reasons to be recorded in writing, permit such class of taxable
persons to maintain accounts in such manner as may be prescribed.
 Every registered person whose turnover during a financial year exceeds the prescribed
limit shall get his accounts audited by a chartered accountant or a cost accountant.

SECTION 36 – PERIOD OF RETENTION OF ACCOUNTS

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  Every registered person required
required to keep and maintain books of account or other
records and shall retain them until the expiry of seventy-two
seventy two months from the due date
of furnishing of annual return for the year pertaining to such accounts and records.
 Provided that a registered person,
person, who is a party to an appeal or revision or any other
proceedings before any Appellate Authority or Revisional Authority or Appellate
Tribunal or court, whether filed by him or by the Commissioner, shall retain the books
of account and other records pertaining
pertaining to the subject matter of such appeal or
revision or proceedings or investigation for a period of one year after final disposal of
such appeal or revision or proceedings or investigation, or for the period specified
above, whichever is later.

SECTION 49 - PAYMENT OF TAX

Payemnt can be made under GST in the following metods

 Electronic cash ledger

 Electronic credit ledger
 Electronic liability ledgeR

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 Electronic cash ledger

 Electronic cash ledger is an account where records of deposits or recipits and its
utilization towards liabilities are maintained.
 It reflects all deposits made in cash and TDS/TCS made on account of the tax
payer.
 This can be used to make payment towards tax, interest, penalty, fees or any other
amount on account of GST.

Modes of deposit

 Online payment- Internet banking or credit or debit card

 Offline payment – NEFT/RTGS or over the counter

Heads of payment

 Major head – IGST,CGST,SGST/UTGST, Cess

 Minor head – Tax, Interest, Penalty, Fee and others.

Electronic credit ledger

 It will reflect Input tax credit as self-assessed in monthly return

 The credit in this ledger can be used to make payment of tax only i.e output
tax and no other amounts such as interest, fee, penalty etc.

Order of utilization of ITC

ITC of ITC of ITC of ITC of

IGST CGST SGST UTGST

IGST CGST SGST UTGST

CGST IGST IGST IGST

SGST/UTGST No SGST/UTGST No CGST No CGST

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Electronic Liability Register

 It reflects the total tax liability of a tax payer for the particular month.
 Order of discharge of liability of taxable perosn
o All dues related to previous tax period
o All dues related to current tax period
o All dues including demand determined under section 73,74.

ASSESSEMENT

SECTION 59 - SELF ASSESSEMENT

Every registered person shall self-assess the taxes payable under this Act and furnish a return
for each tax period as specified under section 39.

SECTION 60 – PROVISIONAL ASSESSEMENT

 where the taxable person is unable to determine the value of goods or services or both
or determine the rate of tax applicable thereto, he may request the proper officer in
writing giving reasons for payment of tax on a provisional basis and the proper officer
shall pass an order, within a period not later than ninety days from the date of receipt
of such request, allowing payment of tax on provisional basis at such rate or on such
value as may be specified by him.
 The payment of tax on provisional basis may be allowed, if the taxable person
executes a bond in such form as may be prescribed

Procedure for Provisional Assessment

 The assessee has to request the GST officer for provisional assessments in writing.
 Within 90 days of receipt of such request the officer will pass an order after reviewing
the application. This order is for allowing a payment of tax on provisional basis or at
a GST rate or value specified by him.
 The assessee who is making payment on provisional basis has to issue a bond with a
security promising to pay the difference amount between provisionally assessed tax
and final assessed tax.
 The GST officer will pass the final assessment within a period of six months from the
date of order of provisional payment.
 Provisional assessment will be followed by final assessments.

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Interest Payable for Provisional Assessment

If in any case the taxpayer is liable to pay more tax after final assessment than paid at the
time of provisional assessment, the person is liable to pay interest at a specified rate on such
tax payments.
The interest to be paid by the taxpayer is calculated from the actual due date of tax till the
actual tax payment made. The interest will be charged maximum at the rate of 18%.

Refund under Provisional Assessment

If in any case the taxpayer was liable to pay less after the final assessment than paid at the
time of provisional assessment, the person will be refunded back with the same amount as
well as interest will be paid on such refund under section 56. The rate of interest paid will be
maximum 6%.

Time Limit for Final Assessments

The final assessment will be done within 6 months of the provisional assessment. The time
limit can be extended for 6 months by the Joint or Additional Commissioner. The
commissioner can even extend this time period to 4 years if required.

SECTION 61 – SCRUTINY OF RETURNS

 To verify the correctness of the returns, the GST officer scrutinize it. Return is
scrutinized by proper office as per the provision of section 61 of CGST Act.
 In case any discrepancy found, he shall furnish the notice to the registered persons
about the discrepancy and seeking the reply from the person. The person shall within
15 days from the date of the notice shall furnish the reply.
 The registered person may accept the discrepancy as mentioned in the notice and pay
the taxes, interest and any other amount due and inform the same to proper officer.
 If proper office found the information is acceptable the proper office shall inform the
registered person accordingly.
 In case if discrepancy is not accepted by the person then he shall give explanation to
the proper officer.
 This is not mandatory for the officer as it is not a legal or judicial proceeding. The
officer for the same can ask for explanations if any discrepancies noticed. The officer
can take the following actions after receiving the explanations for the same:

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  When Explanation is Satisfactory- The officer will inform the taxpayer and
no further actions will be taken in this regard.
 When Explanation is not Satisfactory- The taxpayer has not given the
explanation within 30 days or has not rectified the discrepancies the officer
may
 Conduct a tax audit under section 65.
 Inspect and search the places of the taxpayer’s business
 Start a special audit under section 66
 Initiate demand and recovery provisions
 Send notices for outstanding demand or shortfall of when there is no
wilful intention of doing fraud under section 73
 Send notices for outstanding demand or shortfall when there is wilful
intention of fraud under section 74.

No order can be passed under scrutiny assessment as it is not a legal or judicial

proceeding

SECTION 61 – ASSESSEMENT FOR NON-FILERS

Under section 62, in case if a taxpayer fails to furnish the returns even after the notice under
section 46, a GST officer is required to conduct an assessment. The GST officer in this case
access the tax liability of the taxpayer to the best of his judgement taking into consideration
all the relevant materials that are available.
The officer can issue an assessment order within a period of five years from the date of
furnishing of annual return for the financial year for which the tax has not been paid. After
receiving this order , if the concerned taxpayer furnished a valid return within 30 days from
the issue of assessment order, the order can be withdrawn.
In this case the taxpayer will be liable to pay late fee under section 47 and/or interest under
section 50(1)

SECTION 63 - ASSESSMENT OF UNREGISTERED PERSON

Under section 63, if in case any taxpayer fails to obtain a GST registration or whose
registration has been cancelled under section 29(2) even if he is liable to be registered and
pay tax, the GST officer can process his or her tax liability to the best of his judgement. This
has to be done for the relevant period for which the tax is unpaid. The officer can issue an

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 assessment order within five years from the date specified under section 44 for furnishing
annual return for the financial year for which taxes are unpaid.

SECTION 64 – SUMMARY ASSESSEMENT

This type of assessment is stated under Section 64. The authorized office is required to obtain
prior permission of additional commissioner or joint commissioner to take this assessment.
To protect the interest of revenue, a GST officer can proceed to assess the tax liability of a
person showing a tax liability with any evidence. The officer can also issue an assessment
order id he has proof that the delay in assessment can adversely affect the interest of revenue.

AUDIT

According to section 13(2) of CGST Act, the term “Audit” refers to the examination of:

 Records, returns, and other documents kept or filed by the registered person under the Act

 Rules or guidelines under GST or any other law for the time being in force

This examination is undertaken to check the correctness of the turnover mentioned, taxes
paid, refund claimed and ITC availed. Further, this scrutiny is undertaken to evaluate the
taxpayer’s compliance with the provisions of the Act.
SECTION 65 – AUDIT BY TAX AUTHORITIES

The Commissioner or an officer authorized by him undertakes the audit of the registered
person under section 65 of the CGST Act. This is done for such period, at such intervals and
in a manner as specified in the general or specific order. The concerned officers may carry
out this audit at the place of business of the registered person or his office.

Further, the tax authorities must intimate the registered taxable person of such an audit
through a notice. This notice must be sent to the registered person not less than 15 days
before initiating such an audit in Form GST ADT-01.

Also, such an audit must be completed within 3 months from the date of commencement of
the audit. However, the Commissioner can choose to extend the time period if he believes
that the audit cannot be completed within 3 months. Further, he can choose to extend the
period of such an audit to a maximum of 6 months. Thus, he can do so after he records the
reasons for such an extension in writing.

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 Finally, the concerned officer will intimate the registered person about his final findings of
the audit in Form ADT-02.

SECTION 66 – SPECIAL AUIDT

Any officer not below the rank of Assistant Commissioner may demand an audit under
Section 66 of the CGST Act. This he can do if he believes during the time of scrutiny that:

 the value of supply is not accurately declared or

 input tax credit availed by the registered taxpayer exceeds the credit actually due

Thus, the assessing authority takes the approval of the commissioner to undertake such an
audit. Hence, on such approval, the assessing authority guides the registered person to get the
books audited by a Chartered Accountant or a Cost Accountant. And the Assistant
Commissioner himself suggests this accountant.

Further, the Commissioner issues such a direction in Form GST ADT-03 to the registered
person. Thus, the Chartered Accountant or Cost Accountant selected by the officer then
submits the Report of Audit duly signed and certified by him to the Assistant Commissioner.
This is done within a period of 90 days. And this period can be extended by another 90 days
if there is a delay.

INSPECTION, SEARCH AND SEIZURE

SECTION 67 – POWER OF INSPECTION, SEARCH AND SEIZURE

‘Inspection’ is a softer provision than search which enables officers to access any place of
business or of a person engaged in transporting goods or who is an owner or an operator of a
warehouse or godown. The inspection can be carried out by an officer of CGST/SGST only
upon a written authorization given by an officer of the rank of Joint Commissioner or above.
A Joint Commissioner or an officer higher in rank can give such authorization only if he has
reasons to believe that the person concerned has done one of the following actions:

(a) Suppression of any transaction relating to supply of goods or services or stock in hand

(b) Claimed excess input tax credit

(c) Contravention of any provisions of the Act or the Rules to evade tax

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(d) Transporting or keeping goods which escaped payment of tax or manipulating accounts or
stocks which may cause evasion of tax Inspection can also be done of the conveyance,
carrying a consignment of value exceeding specified limit.

The person in charge of the conveyance has to produce documents/devices for verification
and allow inspection. Inspection during transit can be done even without authorisation of
Joint Commissioner.

SECTION 68 – INSPECTION OF GOODS IN MOVEMENT

 Any consignment, value of which, is exceeding Rs. 50,000/-, may be stopped at any
place for verification of the documents/ devices prescribed for movement of such
consignments.
 If on verification of the consignment, during transit, it is found that the goods were
removed without prescribed document or the same are being supplied in
contravention of any provisions of the Act then the same can be detained or seized
and may be subjected to penalties as prescribed.
 To ensure transparency and minimise hardships to the trade, the law provides that if
during verification, in transit, a consignment is held up beyond 30 minutes the
transporter can feed details on the portal. This will ensure accountability and
transparency for all such verifications. Moreover, for verification during movement of
consignment will also be done through a Digital interface and therefore the physical
intervention will be minimum and as has already been mentioned that in case of a
delay beyond 30 minutes the transporter can feed the details on the portal.

SECTION 69 – POWER TO ARREST

 Where the Commissioner has reasons to believe that a person has committed any
offence specified in clause (a) or clause (b) or clause (c) or clause (d) of sub-section
(1) of section 132 which is punishable under clause (i) or (ii) of sub-section (1), or
sub-section (2) of the said section, he may, by order, authorise any officer of central
tax to arrest such person.
 Where a person is arrested for an offence specified under subsection (5) of section
132, the officer authorised to arrest the person shall inform such person of the grounds
of arrest and produce him before a Magistrate within twenty-four hours.

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  where a person is arrested for any offence specified under sub-section (4) of section
132, he shall be admitted to bail or in default of bail, forwarded to the custody of the
Magistrate;
 in the case of a non-cognizable and bailable offence, the Deputy Commissioner or the
Assistant Commissioner shall, for the purpose of releasing an arrested person on bail
or otherwise, have the same powers and be subject to the same provisions as an
officer-in-charge of a police station.

SECTION 70 – POWER TO SUMMON

 The proper officer under this Act shall have power to summon any person whose
attendance he considers necessary either to give evidence or to produce a document or
any other thing in any inquiry in the same manner, as provided in the case of a civil
court under the provisions of the Code of Civil Procedure, 1908.
 Every such inquiry referred to in sub-section (1) shall be deemed to be a “judicial
proceedings” within the meaning of section 193 and section 228 of the Indian Penal
Code.

DEMAND AND RECOVEY

Demand can be made under two circumstances

 Non- fraud cases like – any tax has not been paid, any tax has been short paid, any tax
has been erroneously refunded, where input tax credit has been wrongly availed or
utilised.
 For any other reasons like – fraud, any wilful misrepresentation, supression of facts.

NO- FRAUD CASES SECTION 73

The proper officer will serve a show cause notice on the taxpayer. They will have to pay the
amount due, along with interest and penalty.
1. Time Limit: The authorities will issue the show cause notice 3 months before the time
limit. The maximum time limit for the order of payment is 3 years from the due date for
filing of annual return for the relevant year.

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2. For Other Tax Periods: After issuing the notice, the proper officer can serve
a statement. It will contain details of any unpaid tax/wrong refund etc. for other periods
not covered in the notice. There is no need for a separate notice for each tax period.
3. Voluntary Tax Payment: A person can pay tax along with interest based on his own
calculations (or the officer’s calculations). The taxpayer has to do this before the officer
issues the notice/statement. The taxpayer will then inform the officer in writing. The
officer will not issue any notice in this case. However, if the officer finds that there is
short payment, they can issue a notice for the balance amount.
4. No Penalty: The taxpayer can pay all their dues and a penalty of 25% within 30 days
from the date of notice. In such a situation, the tax authorities will close all
proceedings (excluding proceedings u/s 132 i.e., prosecution).
5. Penalty: The tax officer will consider the taxpayer’s representation and then calculate
interest and penalty. Penalty will be 10% of tax subject to the least of Rs. 10,000. The
tax officer will issue an order within three years from the due date for filing of relevant
annual return.

FRAUD CASES – SECTION 74

In such cases, the proper officer will serve a show cause notice to the taxpayer. The taxpayer
has to pay the amount due along with interest and penalty.
1. Time Limit: For cases of fraud, the proper officer has to issue the notice 6 months before
the time limit. The maximum time limit is 5 years from the due date for filing of annual
return for the relevant year.
2. For Other Tax Periods: After issuing the notice, the proper officer can serve a statement.
It will contain details of any unpaid tax/wrong refund etc. for other periods not covered in
the notice. There is no need to issue a separate notice for each tax period.
3. Voluntary Tax Payment: The person can pay interest and a 15% penalty based on
his/her own calculations (or the officer’s calculations). He should do this before the tax
officer issues the notice/statement. If the taxpayer informs the officer about the same in
writing, then the officer will not issue any notice. However, if the officer finds that there
is short payment, they can issue a notice for the balance amount.
4. Issue of Order: The tax officer will consider the taxpayer’s representation. He will then
calculate interest and penalty and issue an order. The officer has to issue the
order within five years from the due date for filing of the relevant annual return. For

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 wrong refunds, the tax officer should issue the order within five years from the date of
wrong refund.
5. Penalty: The taxpayer can pay all their dues and a penalty of 50% within 30 days from
the date of order. If he does, then the authorities will close all proceedings (including
prosecution) regarding the notice.

RECOVERY PROCEEDINGS – SECTION 78

If demand is not paid after the service of order, recovery proceedings will be initiated

MODES OF RECOVERY – SECTION 79

 Deduction from amount due to the person

 Deduction ans sale of goods belonging to such person which are under the control of
the department
 Garnishee proceeings – recovery from debtors
 Collection by detention of any movable or immovable property
 Certification Proceedings – recovery throughg District Collector
 Recovery through Magistrate.

LIABILITY TO PAY UNPAID GST DUES IN CERTAIN CASES

These provisions come into force when there is an amount due under GST (tax, interest,
penalty) which cannot be recovered from the taxpayer directly. This article will deal with the
liability to pay GST in such cases.

LIABILITY IN CASE OF TRANSFER OF BUSINESS – SECTION 85

If a taxable person transfers his business, either wholly or partly, to another, then the taxable
person (transferor) and the person to whom the business is transferred (transferee) will be
liable, jointly and severally, wholly or to the extent of such transfer, to pay the GST due.

They will be held liable to pay:

 tax
 interest
 penalty, if it so applies;

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which was due from the taxable person (transferor) up to the time of such transfer. It is
immaterial if such tax, interest, or penalty has been determined before or after the transfer, as
long it is unpaid.

This transfer can be made through:

 sale
 gift
 lease
 leave and license
 hire
 or in any other manner

Apart from unpaid amounts, the transferee will be liable to pay GST from the date of transfer.
If the transferee carries on the business in a new name (which is different from original) then
he must apply for amendment of his registration certificate.

LIABILITY OF AGENT AND PRINCIPAL – SECTION 86

If an agent supplies or receives any taxable goods on behalf of his principal, then both the
agent and the principal will be liable to pay GST, jointly and severally.

LIABILITY OF DIRECTORS OF PRIVATE COMPANY – SECTION 89

This section overrides the Companies Act 2013.

If a private company does not pay its dues then the directors of the company will
become jointly and severally liable for the dues. In this case, only the directors who were in
office during the period when the tax was due will be held liable.

If a director can prove to the Commissioner that the non-payment was not due to any
negligence or breach of duty due to his part, then he will not be held liable.

However, if the company has been converted from a private to a public limited
company, then the above will not apply.

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LIABILITY OF PARTNERS OF A PARTNERSHIP FIRM - SECTION 90

In a partnership firm, all the partners have unlimited liability. Similarly, under GST the
partners of the firm are jointly and severally liable to pay any GST dues irrespective of any
clause of Partnership Deed or any other law.

Commissioner must be informed by the firm or the retiring partner in case of retirement of a
partner. The retiring partner could be held liable for dues under GST until the date of his
retirement.

If any intimation regarding the retirement is not given within 1 month, the retiring partner
will be continued to be held liable till such intimation is received by the Commissioner.

For example, ABC & Co. is a partnership firm with 3 partners. C retires on 20th August
2018. ABC & Co. has GST due amount Rs.10,000 till 20th August and C informs the
Commissioner on 30th August 2018 about the same, then C is liable for the due amount
Rs.10,000.

LIABILITY IN CASE OF AMALGAMATION OR MERGER OF COMPANIES –

SECTION 87

If 2 or more companies merge/amalgamate:

 due to the order of a court/tribunal

 the order is to take effect from a date earlier to the date of the order (i.e. retrospective
effect)
 the companies have supplied goods/services to each other during that period (from
order date to order effect date)

then the 2 companies are individually responsible for their taxes.

The companies will be treated as separate companies under GST till the date of the
order (and not order effect date). Their registrations will get cancelled on the date of order.

For example, A Co. & B Co. have received a court order on 20th August 2018 to merge with
effect from 1st July 2018. Under GST they will be treated as separate companies till
20th August 2018 and each one will be responsible for its own dues until 20th August.

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LIABILITY OF GUARDIANS, TRUSTEES, ETC. – SECTION 91

This becomes applicable when any business is conducted by a guardian/trustee/agent on

behalf AND for the benefit of a minor/incapacitated person. The business owes tax,
interest and/or penalty under GST.

In such cases, both the guardian/trustee/agent AND the beneficiary (minor/ incapacitated
person) will be liable under GST Act. The due amount can be recovered from both parties.

LIABILITY OF COURT OF WARDS ETC. – SECTION 92

This is applicable to the estate of a taxable person, which owns a business, is under the
control of the Court of Wards, the Administrator General, the Official Trustee or any receiver
or manager appointed by a court.

If the business owes any amount under GST then the Court of Wards, the Administrator
General, the Official Trustee or any receiver or manager will be held liable along with the
taxable person.

SECTION 95- ADVANCE RUILING

Advance ruling” means a decision provided by the Authority or the Appellate
Authority to an applicant on matters or on questions specified in sub-section (2) of section 97
or sub-section (1) of section 100, in relation to the supply of goods or services or both being
undertaken or proposed to be undertaken by the applicant;

An applicant desirous of obtaining an advance ruling may make an application in such

form and manner and accompanied by such fee as may be prescribed, stating the question on
which the advance ruling is sought.

The question on which the advance ruling is sought under this Act, shall be in respect
of,––

(a) classification of any goods or services or both;

(b) applicability of a notification issued under the provisions of this Act;

(c) determination of time and value of supply of goods or services or both;

(d) admissibility of input tax credit of tax paid or deemed to have been paid;

(e) determination of the liability to pay tax on any goods or services or both;

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(f) whether applicant is required to be registered;

(g) whether any particular thing done by the applicant with respect to any goods or services
or both amounts to or results in a supply of goods or services or both, within the meaning of
that term

APPEAL

Appeal to the Appellate Authority

(1) An appeal to the Appellate Authority under sub-section

section (1) of section 107 shall be
filed in FORM GST APL-01,
01, along with the elevant documents, either electronically or
otherwise as may be notified
d by the Commissioner, and a provisional acknowledgement shall
be issued to the appellant immediately.

(2) The grounds of appeal and the form of verification as contained in FORM GST
APL-01
01 shall be signed in the manner specified in rule 26.

(3) A certified
d copy of the decision or order appealed against shall be
submitted within seven days of filing the appeal under sub-rule
sub rule (1) and a final
acknowledgement, indicating appeal number shall be issued thereafter in FORM GST APL
APL-
02 by the Appellate Authority or an officer authorised by him in this behalf:
Provided that where the certified copy of the decision or order is
submitted within seven days from the date of filing the FORM GST APL-01, the date
of filing of the appeal shall be the date of the issue of the provisional acknowledgement
and where the said copy is submitted after seven days, the date of filing of the appeal shall be
the date of the submission of such copy.

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Explanation: For the provisions of this rule, the appeal shall be treated
as filed only when the final acknowledgement, indicating the appeal number, is issued.

Appeal to the Appellate Tribunal

(1) An appeal to the Appellate Tribunal under subsection (1) of section 112 shall be
filed along with the relevant documents either electronically
or otherwise as may be notified by the Registrar, in FORM GST APL-05, on
the common portal and a provisional acknowledgement shall be issued to the
appellant immediately.
(2) A memorandum of cross-objections to the Appellate Tribunal under
sub-section (5) of section 112 shall be filed either electronically or otherwise as may
be notified by the Registrar, in FORM GST APL-06.
(3) The appeal and the memorandum of cross objections shall be signed in
the manner specified in rule 26.
(4) A certified copy of the decision or order appealed against along with
fees, as specified in sub-rule (5), shall be submitted to the Registrar within seven days of
the filing of the appeal under sub-rule (1) and a final acknowledgement, indicating the
appeal number shall be issued
(5) The fees for filing of appeal or restoration of appeal shall be one
thousand rupees for every one lakh rupees of tax or input tax credit involved or the difference
in tax or input tax credit involved or the amount of fine, fee or penalty determined in the
order appealed against, subject
to a maximum of twenty five thousand rupees.

(6) There shall be no fee for application made before the Appellate
Tribunal for rectification of errors referred to in sub-section (10) of section 112.

Appeal to the High Court

(1) An appeal to the High Court under sub-section (1) of section 117 shall be filed in
FORM GST APL-08.

(2) The grounds of appeal and the form of verification as contained in FORM GST
APL-08 shall be signed in the manner specified in rule 26.

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Demand confirmed by the Court.- The jurisdictional officer shall issue
a statement in FORM GST APL-04 clearly indicating the final amount of demand confirmed
by the High Court or, as the case may be, the Supreme Court.

OFFENCES AND PENALITIES

 Offences related to invoice, transportation, payment of tax, ITC, refunds, tax

deduction, furnishing of false records, information.

Penalty - Rs.10,000/- or an amount equivalent to the tax evaded / tax not deducted/ collected
not paid to the government/ ITC availed, fraudulent claimed refunds – whichever is higher.

 Offences related to tax not paid or erroneously refunded or ITC wrongly availed
or utilised.
 By means of fraud – Higher of Rs.10,00/- or 100% of tax due
 Others – Higher of 10,000/- or 10% of tax due
 Aids or abets offences, acquire possession in dealing goods which he knows or
have reason to believe are in contravention such as transport, keeps, conceals,
supply or purchase, Fails to appear when summon is issued to give
evidence/produce a document, Fails to issue invoice or account for in accordance
with provision- Rs.25,000/-
 Fails to furnish information return within the periods specified as specified in
the notice.
Penalty – Rs.100 per day for which failure continues to a maximum of Rs.5,000/-
 Fails to furnish statistics without reasonable cause /wilfully furnishes or causes to
furnish false information
Penalty – Rs.10,000/- or Rs.100 per day to a maximum of Rs.25,000/-

TRANSITIONAL ARRANGEMENTS FOR ITC

The transi-tion provisions can be categorised under three heads:

A. Relating to Input Tax Credit

B. Continuance of existing procedures such as job work for a reasonable period without any
adverse consequence under GST law

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C. All claims (pending as well as future) pertaining to existing laws filed before, on or after
the appointed day.

A.Transitional arrangements for ITC

Elaborate provisions have been made to carry forward the ITC earned under the existing law.
Such credit should be permissible under the GST law. However, the taxable person opting for
composition scheme would not be eligible for carry forward of the existing ITC. ITC of
various taxes under the existing laws (CENVAT credit, VAT etc.) would be carried forward
as under:

(a) Closing balance of the credit in the last returns: The closing balance of the CENVAT
credit /VAT in the last returns filed under the existing law can be taken as credit in electronic
credit ledger. Such credit would be available only when returns for the previous last six
months have been filed under the existing law. In order to claim this credit, declaration in
form GST TRAN 1 is required to be furnished on the common portal within ninety days from
the appointed day i.e. 1st July, 2017 or within such extended time

(b) Un-availed credit on capital goods: The balance instalment of un-availed credit on capital
goods credit can also be taken by filing the requisite declaration in the GST TRAN 1.

(c) Credit on duty paid stock: A registered taxable person, other than the manufacturer or
service provider, may have duty paid goods in his stock on the appointed day. GST would be
payable on all supplies of goods or services made after the appointed day. It is not the
intention of the Govern-ment to collect tax twice on the same goods. Hence, in such cases, it
has been provided that the credit of the duty/ tax paid earlier would be admissible as credit.

(d) Input/input services in transit: There might be a scenario where input or input services are
received on or after the ap-pointed day but the duty or tax on the same was paid by the
supplier under the existing law. Registered person (RP) may take credit of eligible duties and
taxes, provided the in-voice has been recorded in the books within 30 days from the
appointed day. The period can be extended by the Commissioner GST by another 30 days. A
statement of such invoices has to be furnished. ISD can also distribute such credit.

B. Transition provisions relating to job work, goods returned/sent on approval etc.

Job work Inputs, semi-finished goods or finished goods were sent to the job worker or any
other premises without payment of duty/VAT under the existing law. No GST is payable by

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the job worker when such goods are returned by him within six months after the appointed
day. The period can be extended by the Commissioner, GST by another two months.

C. Proceedings under the existing laws

GST law has become operational w.e.f. 1st July, 2017 and existing laws have been repealed.
Elaborate provisions have been made to save the pending as well future claims relating to
existing law made before, on or after the appointed day i.e. 1st July, 2017. Such proceedings
may pertain to refund claims of CENVAT credit/VAT or export related rebate or service tax,
such proceedings may either result in recovery of tax or refund. All such cases would be
disposed of under the existing law. If any claim for refund of CENVAT credit is fully or
partially rejected, the amount so rejected shall lapse. Refund of CENVAT credit shall be paid
in cash. There will be no refund of CENVAT if already carry forwarded. If any amount
becomes recoverable, the same shall be recovered as arrear of tax under GST Act. Statutory
provisions relating to transition are contained in chapter XX (section 139 to 142) of the
CGST Act, 2017, SGST Act(s), 2017 and Rule 117 to 121 of the CGST Rules, 2017.

INTEGRATED GOODS AND SERVICE TAX:

Why the third tax in the name of IGST?

Before discussing the IGST Model and its features, it is important to understand how inter-
State trade or commerce is being regulated in the present indirect tax system. It is significant
to note that presently the Central Sales Tax Act, 1956 regulates the inter-State trade or
commerce (hereinafter referred to as “CST”), the authority for which is constitutionally
derived from Article 269 of the Constitution. Further, as per article 286 of the Constitution of
India, no State can levy sales tax on any sales or purchase of goods that takes place outside
the State or in the course of the import of the goods into, or export of the goods out of the
territory of India. Only the Parliament can levy tax on such a transaction. The Central Sales
Tax Act was enacted in 1956 to formulate principles for determining when a sale or purchase
of goods takes place in the course of inter-State trade or commerce. The Act also provides for
the levy and collection of taxes on sales of goods in the course of inter-State trade.

The CST suffers from the following shortcomings

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  CST is collected and retained by the origin State, which is an aberration. Any indirect
tax, by definition, is a consumption tax, the incidence of which, is borne by the
consumer. Logically, the tax must accrue to the destination State having jurisdiction
over the consumer.
 Input Tax Credit (hereinafter referred to as ITC) of CST is not allowed to the buyer
which, results in cascading of tax (tax on tax) in the supply chain.
 Various accounting forms are required to be filed in CST viz., C Form, E1, E2, F, I, J
Forms etc. which add to the compliance cost of the business and impedes the free
flow of trade.
 Another negative feature of CST is the opportunity for “arbitrage” because of the
huge difference between tax rates under VAT and CST being levied on intra-State
sales and inter-State sales respectively.
The IGST model would remove all these deficiencies.
IGST is a mechanism to monitor the inter-State trade of goods and services and ensure that
the SGST component accrues to the consumer State. It would maintain the integrity of ITC
chain in inter-State supplies. The IGST rate would broadly be equal to CGST rate plus SGST
rate. IGST would be levied by the Central Government on all inter-State transactions of
taxable goods or services.
Cross-utilisation of credit
It requires the transfer of funds between respective accounts. The utilisation of credit of
CGST & SGST for payment of IGST by “B” would require the transfer of funds to IGST
accounts. Similarly, the utilisation of IGST credit for payment of CGST & SGST by “C”
would necessitate the transfer of funds from IGST account. As a result, CGST account and
SGST (of, say, Rajasthan) would have Rs. 1300/- each, whereas, there will not be any amount
left in IGST and SGST (of, say, Maharashtra) after the transfer of ITC.
Prescribed order of utilisation of IGST/CGST/SGST credit
The IGST payment can be done by utilising the ITC. The amount of ITC on account of IGST
is allowed to be utilised towards the payment of IGST, CGST and SGST, in that order.
Nature of Supply
It is very important to determine the nature of supply – whether it is inter-State or intra-State,
as the kind of tax to be paid (IGST or CGST+SGST) depends on that.
(i) Inter-State Supply:
Subject to the place of supply provisions, where the location of the supplier and the place of
supply are in:

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(a) Two different States;
(b) Two different Union territories; or
(c) A State and a Union Territory.
Such supplies shall be treated as the supply of goods or services in the course of inter-State
trade or commerce.
Any supply of goods or services in the taxable territory, not being an intra-State supply, shall
be deemed to be a supply of goods or services in the course of inter-State trade or commerce.
Supplies to or by SEZs are defined as inter-State supply. Further, the supply of goods
imported into the territory of India till they cross the customs frontiers of India or the supply
of services imported into the territory of India shall be treated as supplies in the course of
inter-State trade or commerce. Also, the supplies to international tourists are to be treated as
inter-State supplies.
(ii) Intra-State supply:
It has been defined as any supply where the location of the supplier and the place of supply
are in the same State or Union Territory.
Intra state supply
• Supply of goods within the State or Union Territory.
• Supply of services within the State or Union Territory
Inter-State supply
• Supply of goods from one State or Union Territory to another State or Union Territory
• Supply of services from one State or Union Territory to another State or Union Territory
• Import of goods till they the cross customs frontier
• Import of services
• Export of goods or services
• Supply of goods/services to/by SEZ
• Supplies to international tourists
• Any other supply in the taxable territory which is not intra-State supply
Thus, the nature of the supply depends on the location of the supplier and the place of supply.
Both these terms have been defined in the IGST Act.
Location of Supplier
Broadly, it is the registered place of business or the fixed establishment of the supplier from
where the supply is made. Sometimes, a service provider has to go to a client location for
providing service. However, such place would not be considered as the location of the
supplier. It has to be either a regular place of business or a fixed establishment, which is

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having sufficient degree of permanence and suitable structure in terms of human and
technical resources.
Place of supply
 Places of supply provisions have been framed for goods and services, keeping in mind
the destination/consumption principle. In other words, the place of supply is based on
the place of consumption of goods or services. As goods are tangible, the
determination of their place of supply, based on the consumption principle, is not
difficult. Generally, the place of delivery of goods becomes the place of supply.
However, the services being intangible in nature, it is not easy to determine the exact
place where services are acquired, enjoyed and consumed. In respect of certain
categories of services, the place of supply is determined with reference to a proxy.
 A distinction has been made between B2B (Business to Business) & B2C (Business to
Consumer) transactions, as B2B transactions are wash transactions since the ITC is
availed by the registered person (recipient) and no real revenue accrues to the
Government.
 Separate provisions for the supply of goods and services have been made for the
determination of their place of supply. Separate provisions for the determination of
the place of supply in respect of domestic supplies and cross border supplies have
been framed.
A. Place of supply of goods other than import and export [Section-10]
Nature of Supply Place of Supply

Where the supply involves the Location of the goods at the time at
movement of goods, whether by the which, the movement of goods
supplier or the recipient or by any terminates for delivery to the
other person recipient

Where the goods are delivered to The principal place of business of

the recipient, or any person on the such person
direction of the third person by way
of transfer of title or otherwise, it
shall be deemed that the third
person has received the goods

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 Where there is no movement of Location of such goods at the time
goods either by supplier or recipient of delivery to the recipient

Where goods are assembled or The place where the goods are
installed at site assembled or installed

B. Place of supply of goods in case of Import & Export [Section-11]

Nature of Supply Place of Supply

Import Location of importer

Export Location outside India
C. Place of supply of services in case of Domestic Supplies [Section12]
(Where the location of supplier of services and the location of the recipient of services is in
India)
(i) In respect of the following 12 categories of services, the place of supply is determined
with reference to a proxy. Rest of the services are governed by a default provision.

Nature of Supply Place of Supply

Immovable property related to Location at which the immovable

services, including hotel property or boat or vessel is located
accommodation or intended to be located located
outside India: Location of the
recipient
Restaurant and catering services, Location where the services are
personal grooming, fitness, beauty actually performed
treatment and health service
Training and performance appraisal B2B: Location of such registered
person B2C: Location where the
services are actually performed
Admission to an event or Place where the event is actually

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 amusement park held or where the park or such other
place is located
Organisation of an event B2B: Location of such registered
person B2C: Location where the
event is actually held In case of
multi-state event - By application of
the generally accepted accounting
principles If event is held outside
India: Location of the recipient
Transportation of goods including B2B: Location of such registered
mails person B2C: Location at which
such goods are handed over for
their transportation
Passenger transportation B2B: Location of such registered
person B2C: Place where the
passenger embarks on the
conveyance for a continuous
journey
Services on board a conveyance Location of the first scheduled point
of departure of that conveyance for
the journey
Telecommunication services Leased Services involving fixed line,
circuits- where the leased circuit is circuits, dish etc., place of supply is
installed in more than one State or location of such fixed equipment. In
Union territory and a consolidated case of mobile/ internet post-paid
amount is charged services, it is location of billing
address of the recipient. In case of
sale of pre-paid voucher, place of
supply is place of sale of such
vouchers. In other cases, it is
address of the recipient in records
In proportion to the number of
points lying in the State or Union

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 territory
Banking and other financial Location of the recipient of services
services on the records of the supplier
Location of the supplier of services
if the location of the recipient of
services is not available
Insurance services B2B: Location of such registered
person B2C: Location of the
recipient of services on the records
of the supplier
Advertisement services to the i. The place of supply shall be taken
Governments, a statutory body or a as located in each of such States
local authority and in case of multiple states, in
proportion to value, as may be
determined in terms of contract or
agreement ii. In the case of
advertisements over internet, the
service shall be deemed to have
been provided all over India, and
the amount attributable to the value
of advertisement service shall be
calculated on the basis of the
internet subscribers in such State or
Union territory
(ii) For the rest of the services other than those specified above, a default provision has
been prescribed as under:
Nature of Supply Place of Supply

B2B Location of such Registered Person

B2C (i) Location of the recipient where
the address on record exists (ii)
Location of the supplier of services
in other cases

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 Supplies in territorial waters Where the location of the supplier is in the territorial
waters, the location of such supplier; or where the place of supply is in the territorial
waters, the place of supply is be deemed to be in the coastal State or Union territory
where the nearest point of the appropriate baseline is located.
Export / Import of services A supply would be treated as Import or export if certain
conditions are satisfied. These conditions are as under:
Export of services Import of services

means the supply of any service means the supply of any service,
where i. the supplier of service is where i. the supplier of service is
located in India ii. the recipient of located outside India ii. the
service is located outside India iii. recipient of service is located in
the place of supply of service is India, and iii. the place of supply of
outside India iv. the payment for service is in India
such service has been received by
the supplier of service in
convertible foreign exchange, or in
Indian currency where permitted by
the RBI and v. the supplier of
service and recipient of service are
not merely establishments of a
distinct person in accordance with
explanation 1 of section 8

Zero rated supply

Exports and supplies to SEZ are considered as ‘zero rated supply’ on which no tax is
payable. However, ITC is allowed subject to such conditions, safeguards and procedure
as may be prescribed. Refund in respect of such supplies may be claimed by following
either of these options:
(i) Supply made without payment of IGST under Bond and claim
refund of unutilised ITC or
(ii) Supply made on payment of IGST and claim refund of the same.

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 By zero rating it is meant that the entire value chain of the supply is exempt from tax.
This means that in case of zero rating, not only is the output exempt from payment of tax,
there is no bar on taking/availing credit of taxes paid on the input side for
making/providing the output supply. Such an approach would in true sense make the
goods or services zero rated. All supplies need not be zero-rated. As per the GST Law
exports are meant to be zero rated the zero-rating principle is applied in letter and spirit
for exports and supplies to SEZ. The relevant provisions are contained in Section 16(1) of
the IGST Act, 2017, which states that “zero rated supply” means any of the following
supplies of goods or services or both, namely: – a) export of goods or services or both; or
b) supply of goods or services or both to a Special Economic Zone developer or a Special
Economic Zone unit.

Exempted Supplies Zero rated Supplies

exempt supply” means supply of any “zero-rated supply” shall have the
goods or services or both which attracts meaning assigned to it in section 16
nil rate of tax or which may be wholly
exempt from tax under section 11 of
CGST Act or under section 6 of the
IGST Act, and includes non-taxable
supply
No tax on the outward exempted No tax on the outward supplies;
supplies, however, the input supplies Input supplies also to be tax free
used for making exempt supplies to be
taxed
Credit of input tax needs to be reversed, Credit of input tax may be availed
if taken; No ITC on the exempted for making zero-rated supplies,
supplies even if such supply is an exempt
supply ITC allowed on zerorated
supplies
Value of exempt supplies, for Value of zero rated supplies shall
apportionment of ITC, shall include be added along with the taxable
supplies on which the recipient is liable supplies for apportionment of ITC

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 to pay tax on reverse charge basis,
transactions in securities, sale of land
and, subject to clause (b) of paragraph 5
of Schedule II, sale of building
Any person engaged exclusively in the A person exclusively making zero
business of supplying goods or services rated supplies may have to register
or both that are not liable to tax or as refunds of unutilised ITC or
wholly exempt from tax under the CGST integrated tax paid shall have to be
or IGST Act shall not be liable to claimed
registration
A registered person supplying exempted Normal tax invoice shall be issued
goods or services or both shall issue,
instead of a tax invoice, a bill of supply

UNIT V

CUSTOMS ACT, 1962

INTRODUCTION

Custom Duty is an indirect tax, imposed under the Customs Act formulated in 1962. The
power to enact the law is provided under the Constitution of India under the Article 265,
which states that ―no tax shall be levied or collected except by authority of lawǁ. Entry No.
83 of List I to Schedule VII of the Constitution empowers the Union Government to legislate
and collect duties on import and exports. The Customs Act, 1962 is the basic statute which
governs entry or exit of different categories of vessels, aircrafts, goods, passengers etc., into
or outside the country. The Act extends to the whole of the India. Customs Act, 1962 just like
any other tax law is primarily for the levy and collection of duties but at the same time it has
the other and equally important purposes such as:

(i) regulation of imports and exports;

(ii) protection of domestic industry;
(iii) prevention of smuggling;
(iv) conservation and augmentation of foreign exchange and so on.

Section 2 of the Customs Act, 1962 contains the definitions of various terms used at
several places in the Act

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  2(3) “assessment” includes provisional assessment, self-assessment, re-assessment
and any order of assessment in which the duty assessed is nil;
 2(4) “baggage” includes unaccompanied baggage but does not include motor vehicles
[Section 2(3)];
 2(5) “bill of entry” means a bill of entry referred to in section 46[Section 2(4)];
 2(6) “bill of export” means a bill of export referred to in section 50[Section 2(5)];
 2(9) “dutiable goods” means any goods which are chargeable to duty and on which
duty has not been paid [Section 2(14)];
 2(11) “export”, with its grammatical variations and cognate expressions, means taking
out of India to a place outside India [Section 2(18)];
 2(12) “export goods” means any goods which are to be taken out of India to a place
outside India [Section 2(19)];
 2(14) “foreign-going vessel or aircraft” means any vessel or aircraft for the time being
engaged in the carriage of goods or passengers between any port or airport in India
and any port or airport outside India, whether touching any intermediate port or
airport in India or not, and includes –
o any naval vessel of a foreign Government taking part in any naval exercises;
o any vessel engaged in fishing or any other operations outside the territorial
waters of India;
o any vessel or aircraft proceeding to a place outside India for any purpose
whatsoever [Section 2(21)];
 2(15) “goods” includes –
 vessels, aircrafts and vehicles;
 stores
 baggage;
 currency and negotiable instruments; and (e) any other kind of
movable property [Section 2(22)].
 2(16) “import”, with its grammatical variations and cognate expressions, means
bringing into India from a place outside India [Section 2(23)];
 2(17) “import manifest” or “import report” means the manifest or report required to
be delivered under section 30 [Section 2(24)];

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  2(18) “imported goods” means any goods brought into India from a place outside
India but does not include goods which have been cleared for home consumption
[Section 2(25)];
 2(23) “prohibited goods” means any goods the import or export of which is subject to
any prohibition under this Act or any other law for the time being in force but does
not include any such goods in respect of which the conditions subject to which the
goods are permitted to be imported or exported have been complied with [Section
2(33)];
 2(25) “shipping bill” means a shipping bill referred to in section 50 [Section 2(37)]

OFFICERS OF CUSTOMS
Classes of officers of customs
 There shall be the following classes of officers of customs, namely:
 Chief Commissioners of Customs;
 Commissioner of Customs;
 Commissioners of Customs (Appeals);
 Joint Commissioners of Customs;]
 Deputy Commissioners of Customs;
 Assistant Commissioners of Customs; and
 such other class of officers of customs as may be appointed for the purposes of this
Act.

DETECTION OF ILLEGALLY IMPORTED GOODS AND PREVENTION OF THE

DISPOSAL
Section 11A - "notified goods" means goods specified in the notification issued under section
11B.

Section 11B - If, having regard to the magnitude of the illegal import of goods of any class
or description, the Central Government is satisfied that it is expedient in the public interest to
take special measures for the purpose of checking the illegal import, circulation or disposal of
such goods, or facilitating the detection of such goods, it may, by notification in the Official
Gazette, specify goods of such class or description.

PREVENTION OR DETECTION OF ILLEGAL EXPORT OF GOODS

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Section 11H - "specified goods" means goods of any description specified in the notification
issued under section 11-I in relation to a specified area.

Section 11-I - If, having regard to the magnitude of the illegal export of goods of any class or
description, the Central Government is satisfied that it is expedient in the public interest to
take special measures for the purpose of checking the illegal export or facilitating the
detection of goods which are likely to be illegally exported, it may, by notification in the
Official Gazette, specify goods of such class or description. - If, having regard to the
magnitude of the illegal export of goods of any class or description, the Central Government
is satisfied that it is expedient in the public interest to take special measures for the purpose
of checking the illegal export or facilitating the detection of goods which are likely to be
illegally exported, it may, by notification in the Official Gazette, specify goods of such class
or description.

TYPES OF DUTIES

BASIC CUSTOM DUTY

It is levied under Section 12 of Customs Act, 1962, and specified under Section 2 of the
Customs Tariff Act, 1975. Normally, it is levied as a percentage of Value as determined
under section 14(1). There are different rates for different goods. But the general basic rate is
10%. This basic duty may be exempted by a notification under Section 25. The basic duty
may have two rates under the First Schedule to Customs Tariff Act, 1975; viz. standard rates
and preferential rates.

ADDITIONAL CUSTOM DUTY/COUNTERVAILING DUTY [Section 3(1)]

This is levied under Section 3(1) of the Customs Tariff Act, 1975. The amount of this duty is
equivalent to the amount of excise duty payable on like goods manufactured or produced in
India. In S.K. Patnaik v. State of Orissa, 2000 S.C. it was held that countervailing duty is
imposed when excisable articles are imported in order to counter balance the excise duty,
which is leviable on similar goods if manufactured in India: —

 Countervailing Duty is payable at effective rates.

 When excise duty is exempt/nil rate is applicable on goods imported, no
Countervailing Duty is levied (Collector v. J. K. Synthetics 2000 (120) E.L.T. 54(SC)
 Countervailing Duty is leviable even if similar goods are not produced in India.

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  Exemption of basic customs duty doesn‘t automatically mean exemption of
Countervailing Duty.
 Countervailing Duty is payable in case of goods leviable under State Excise also.
 When the imported goods are valued under Section 4A [valuation based on retail
price], or Tariff Values under section 3(2) the amount of Countervailing Duty is
calculated accordingly if the goods are sold in retail in India.

ADDITIONAL DUTY/SPECIAL ADDITIONAL DUTY (SAD) UNDER SECTION 3(5)

It is levied to offset the effect of sales tax, VAT, local tax or other charges leviable on articles
on its sale, purchase or transaction in India. It is leviable on imported goods even if article
was not sold in India. The Central Government may levy additional duty to counter balance
the sales tax, value added tax, local tax or any other charges leviable in the like article on its
sale, purchase or transportation in India. The rate shall be notified by the Central Government
which cannot exceed 4%. The value of the imported article shall, be the aggregate of the
value determined under section 14(1) of the Customs Act, 1962 and any duty of customs
chargeable on that article under section 12 of the Customs Act, 1962, and any sum chargeable
on that article under any law for the time being in force as an addition to such additional duty
of custom under section 3(1) and section 3(3), but does not include—

(a) the duty referred to in sub-section ( 5);

(b) the safeguard duty referred to in sections 8B

(c) the countervailing duty referred to in section 9; and

(d) the anti-dumping duty referred to in section 9A.

This additional duty is eligible for Cenvat Credit for a manufacturer but not for a provider of
taxable service. In respect of capital goods, 100% credit of SAD is available to manufacturers
in the first year itself.

PROTECTIVE DUTY - SECTION 6 & 7 OF THE CUSTOMS TARIFF ACT, 1975

The protective duties should not be very stiff so as to discourage imports.

 It should be sufficiently attractive to encourage imports to bridge the gap between demand
and supply of those articles in the market.

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 Section 6 provides that the protective duties are levied by the Central Government upon the
recommendation made to it by the Tariff Commission established under the Tariff
Commission Act, 1951, and upon it being satisfied that circumstances exist which render it
necessary to take immediate action to provide protection to any industry established in India.

 As per section 7(1), the protective duty shall be effective only upto and inclusive of the date
if any, specified in the First Schedule.

 Section 7(2) provides that the Central Government may reduce or increase the duty by
notification in the Official Gazette. However, such duty shall be altered only if it is satisfied,
after such inquiry as it thinks necessary, that such duty has become ineffective or excessive
for the purpose of securing the protection intended to be afforded by it to a similar article
manufactured in India.

 If there is any increase in the duty as specified above, then the Central Government is
required to place such notification in the Parliament for its approval.

 As per section 7(3), every notification in so far as it relates to increase of such duty, shall be
laid before each House of Parliament if it is sitting as soon as may be after the issue of the
notification, and if it is not sitting within seven days of its re-assembly, and the Central
Government shall seek the approval of Parliament to the notification by a resolution moved
within a period of fifteen days beginning with the day on which the notification is so laid
before the House of the People. If the Parliament recommends any change in the notification,
then the notification shall have effect subject to such changes. However, anything done
pursuant to the notification before the recommendation by the Parliament shall be valid.

SAFEGUARD DUTY - SECTION 8B OF CUSTOMS TARIFF ACT, 1975

 The Central Government may impose safeguard duty on specified imported goods, if it is
satisfied that the goods are being imported in large quantities and they are causing serious
injury to domestic industry.

However, the safeguard duty shall not be imposed in the following cases:

o Articles originating from developing country, so long as the share of imports of that
article from that country does not exceed 3% of the total imports of that article into India.

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 o Articles originating from more than one developing country, so long as the
aggregate of imports from developing countries each with less than 3% import share taken
together does not exceed 9% of the total imports of that article into India.

o Unless specifically made applicable in the notification, the articles imported by a

100% EOU or units in a Free Trade Zone or Special Economic Zone.

 The safeguard duty is imposed for the purpose of protecting the interests of any domestic
industry in India aiming to make it more competitive. However, the total period of levy of
safeguard duty is restricted to 10 years.

 Under section 8B(2), the Central Government is also empowered to impose provisional
safeguard duty pending determination of the final duty. This provisional duty may be
imposed on the basis of preliminary determination that increased imports have caused or
threatened to cause serious injury to a domestic industry.

COUNTERVAILING DUTY ON SUBSIDIZED ARTICLES - SECTION 9 OF THE

CUSTOMS TARIFF ACT

Section 9(1) provides that the countervailing duty on subsidized articles is imposed if any
country or territory, directly or indirectly, pays or bestows subsidy upon the manufacture or
production or exportation of any article. Such subsidy includes subsidy on transportation of
such article. Such articles are imported into India. The importation may or may not directly
be from the country of manufacture or production. The article, may be in the same condition
as when exported from the country of manufacture or production or may be changed in
condition by manufacture, production or otherwise.

ANTI-DUMPING DUTY (ADD) ON DUMPED ARTICLES - SECTION 9A OF THE

CUSTOMS TARIFF ACT, 1975

Where any article is exported by an exporter or producer from any country or territory to
India at less than its normal value, then, upon the importation of such article into India, the
Central Government may, by notification in the Official Gazette, impose an anti-dumping
duty not exceeding the margin of dumping in relation to such article. The anti dumping duty
is dumping margin or injury margin whichever is lower.

Dumping means exporting goods to India, at prices lower than the ones in the domestic
market of the exporting country, subject to certain adjustments.

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To prevent dumping, the Central Government may levy ADD up to margin of dumping
(MOD). MOD is the difference between the normal value and the price charged for exports to
India.

Normal value means comparable price in the ordinary course of trade, in the exporting
country, after making adjustments to the extent of conditions of sale, taxation, etc. Injury
margin means difference between fair selling price of domestic industry and landed cost of
imported product.

INTEGRATED GOODS AND SERVICES TAX(IGST)

IGST(IntegratedGoodsandServicesTax)isacomponentunderGSTlaw,whichislevi
edongoodsbeingimported into India from other country. It has subsumed various
customs duties including Countervailing Duty (CVD) and Special Additional
Duty of Customs(SAD).

IntheGSTregime,IGSTwillbeleviedonimportsbyvirtueofsub-
section(7)ofSection3oftheCustomsTariffAct, 1975. IGST wherever applicable,
would be levied on cargo that would arrive on or after 1st July, 2017. It may
also
benotedthatIGSTwouldalsobeleviedoncargowhichhasarrivedpriorto1stJulybutabi
llofentryisfiledonor after 1st July2017.
GST COMPENSATION CESS:

Under GST regime, Compensation Cess will be charged on luxury products like
high-end cars and demerit
commoditieslikepanmasala,tobaccoandaerateddrinksfortheperiodof5yearsinorde
rtocompensatestates for loss ofrevenue.
IntheGSTregime,IGSTwillbeleviedonimportsbyvirtueofsub-
section(9)ofSection3oftheCustomsTariffAct, 1975.

PROHIBITION OF EXPORT AND IMPORT OF GOODS

Section 11 - Power to prohibit importation or exportation of goods. - If the

Central Government is satisfied that it is necessary so to do for any of the
purposes specified below, it may, by notification in the Official Gazette, prohibit
either absolutely or subject to such conditions (to be fulfilled before or after

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clearance) as may be specified in the notification, the import or export of goods
of any specified description.
(a)the maintenance of the security of India;

(b) the maintenance of public order and standards of decency or morality;

(c) the prevention of smuggling;

(d) the prevention of shortage of goods of any description;

(e) the conservation of foreign exchange and the safeguarding of balance of payments;

(f) the prevention of injury to the economy of the country by the uncontrolled import or
export of gold or silver;

(g) the prevention of surplus of any agricultural product or the product of fisheries;

(h) the maintenance of standards for the classification, grading or marketing of goods in
international trade;

(i) the establishment of any industry;

(j) the prevention of serious injury to domestic production of goods of any description;

(k) the protection of human, animal or plant life or health;

(l) the protection of national treasures of artistic, historic or archaeological value;

(m) the conservation of exhaustible natural resources;

(n) the protection of patents, trademarks and copyrights;

(o) the prevention of deceptive practices;

(p) the carrying on of foreign trade in any goods by the State, or by a Corporation owned or
controlled by the State to the exclusion, complete or partial, of citizens of India;

(q) the fulfilment of obligations under the Charter of the United Nations for the maintenance
of international peace and security;

(r) the implementation of any treaty, agreement or convention with any country;

(s) the compliance of imported goods with any laws which are applicable to similar goods
produced or manufactured in India;

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(t) the prevention of dissemination of documents containing any matter which is likely to
prejudicially affect friendly relations with any foreign State or is derogatory to national
prestige;

(u) the prevention of the contravention of any law for the time being in force; and

(v) any other purpose conducive to the interests of the general public.

CIRCUMSTANCES UNDER WHICH NO DUTY WILL BE LEVIED

Pilferage: Section 13 of the Customs Act, 1962

No duty is payable if the pilferage found before goods cleared from customs:

 Importer does not have to provepilferage,

 If the duty is paid before finding the pilferage, refund can beclaimed

Section 13 does not apply for the warehoused goods.w.e.f. 10-5-2013, there shall be no duty
liability on a sample of goods consumed/destroyed during the course of
testing/examination.

Conditions to be satisfied for exemption from duty:

(i) The imported goods should have beenpilfered.

(ii) The pilferage should have occurred after the goods are unloaded, but before
the proper officer makesthe
order of clearance for home consumption or for deposit into warehouse.

(iii) The pilfered goods should not have been restored back to theimporter.

Important points:

a) Ifgoodsarepilferedaftertheorderofclearanceismadebutbeforethego
odsareactuallycleared,section 13 is not applicable and thus, duty
would beleviable.

b) Section 13 deals with only pilferage. It does not deal with loss/destruction
ofgoods.

c) Provisionsofsection13wouldnotapplyifitcanbeshownthatpilferaget
ookplacepriortotheunloadingof goods.

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 d) In case of pilferage, only section 13 applies and remission of duty under
section 23(1) is notpermissible.

VALUVATION OF IMPORTED AND EXPORTED GOODS – SECTION 14

 Transaction Value [Section 14(1)]

 Tariff Value [Section 14(2)]

Section 14(1) provides that the value of imported goods shall also include various items of
costs and services to the extent provided by the rules. Proviso to section 14(1) states that the
price shall be calculated as per the rate of exchange as in force on the date of presentation of
bill of entry or shipping bill or bill of export under section 46 or section 50, as the case may
be. Further, if transaction value is not determinable (in case of no sale or buyer or seller being
related or price not being sole consideration), value is determined in accordance with
valuation rules. Hence, the value of imported goods shall be computed in accordance with
section 14(1) read with the Customs Valuation (Determination of Value of imported Goods)
Rules, 2007.

CUSTOMS VALUATION (DETERMINATION OF PRICE OF IMPORTED GOODS)

RULES, 2007 As per Notification No. 94/2007-Customs (N.T.), dated 13.9.2007, in exercise
of the powers conferred by Section 156 read with Section 14 of the Customs Act, 1962 (62 of
1962), the Central Government hereby makes the following rules, namely:

Customs Valuation (Determination of Value of Imported Goods) Rules, 2007

Rule 3 Determination of the method of valuation

Rule 4 Transaction value of identical goods

Rule 5 Transaction value of similar goods

Rule 6 Situation where the above methods cannot be applied

Rule 7 Deductive value method

Rule 8 Computed value

VALUATION OF EXPORT GOODS

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Customs value of export goods, whether liable to ad valorem duty or not is to be determined
under Section 14(1) of the Customs Act, 1962 read with Section 2(41) thereof. By virtue of
Section 2(41), ‗value‘ in relation to any goods will mean the value thereof determined under
Section 14(1) read with Customs Valuation (Determination of Value of Export Goods) Rules,
2007.

CUSTOMS VALUATION (DETERMINATION OF VALUE OF EXPORT GOODS)

RULES, 2007

Rule 3 Determination of the method of valuation

Rule 4 Determination of export value by comparison

Rule 5 Computed value method

Rule 6 Residual method

Rule 7 Declaration by the exporter

Rule 8 Rejection of declared value

ASSESSMENT OF DUTY

Section 17 of the Customs Act, prescribes the method for assessment of duty. For example,
under Subsection (1), after an importer has entered any imported goods or an exporter has
entered any export goods, the importer and exporter self assess the duty if any leviable on
such goods. As per sub-section 2 the self assessed goods may be verified, examined or tested
by the proper officer. Section 17 reads as follows:

(1) An importer entering any imported goods under section 46, or an exporter entering any
export goods under section 50, shall, save as otherwise provided in section 85, self-assess the
duty, if any, leviable on such goods.

(2) The proper officer may verify the self-assessment of such goods and for this purpose,
examine or test any imported goods or export goods or such part thereof as may be necessary.

(3) For verification of self-assessment under sub-section (2), the proper officer may require
the importer, exporter or any other person to produce any document or information, whereby
the duty leviable on the imported goods or export goods, as the case may be, can be
ascertained and thereupon, the importer, exporter or such other person shall produce such
document or furnish such information.

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(4) Where it is found on verification, examination or testing of the goods or otherwise that the
self assessment is not done correctly, the proper officer may, without prejudice to any other
action which may be taken under this Act, re-assess the duty leviable on such goods.

(5) Where any re-assessment done under sub-section (4) is contrary to the self-assessment 25
done by the importer or exporter regarding valuation of goods, classification, exemption or
concessions of duty availed consequent to any notification issued therefore under this Act and
in cases other than those where the importer or exporter, as the case may be, confirms his
acceptance of the said re- assessment in writing, the proper officer shall pass a speaking order
on the re-assessment, within fifteen days from the date of reassessment of the bill of entry or
the shipping bill, as the case may be.

(6) Where re-assessment has not been done or a speaking order has not been passed on re-
assessment, the proper officer may audit the assessment of duty of the imported goods or
export goods at his office or at the premises of the importer or exporter, as may be expedient,
in such manner as may be prescribed.

SECTION 25 : Power to grant exemption from duty. –

(1) If the Central Government is satisfied that it is necessary in the public interest so to do, it
may, by notification in the Official Gazette, exempt generally either absolutely or subject to
such conditions (to be fulfilled before or after clearance) as may be specified in the notificat
ion goods of any specified description from the whole or any part of duty of customs leviable
thereon.

(2)If the Central Government is satisfied that it is necessary in the public interest so to do, it
may, by special order in each case, exempt from th e payment of duty, under circumstances
of an exceptional nature to be stated in such order, any goods on which duty is leviable.

(3)The Central Government may, if it considers it necessary or expedient so to do for the

purpose of clarifying the scope of applicability of any notification issued under sub -section
(1) or order issued under sub-section (2), insert an explanation in such notification or order,
as the case may be, by notification in the official gazette, at any time within one year of issue
of the notification under sub-section (1) or order under sub-section (2), and every such
explanation shall have effect as if it had always been the part of the first such notification or
order, as the case may be.

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PROVISIONS RELATING TO CONVEYANCES CARRYING IMPORTED OR
EXPORTED GOODS

SECTION 29 - Arrival of vessels and aircrafts in India. –

(1) The person -in-charge of a vessel or an aircraft entering India from any place outside
India shall not cause or permit the vessel or aircraft to call or land - (a) for the first
time after arrival in India; or (b) at any time while it is carrying passengers or cargo
brought in that vessel or aircraft; at any place other than a customs port or a customs
airport, as the case may be.
(2) The provisions of sub -section (1) shall not apply in relation to any vessel or aircraft
which is compelled by accident, stress of weather or other unavoidable cause to call
or land at a place other than a customs port or customs airport but the person -in-
charge of any such vessel or aircraft –

(a) shall immediately report the arrival of the vessel or the landing of the aircraft to the
nearest customs officer or the officer -in-charge of a police station and shall on demand
produce to him the log book belonging to the vessel or the aircraft;

(b) shall not without the consent of any such officer permit any goods carried in the vessel
or the aircraft to be unloaded from, or any of the crew or passengers to depart from the
vicinity of, the vessel or the aircraft; and

(c) shall comply with any directions given by any such officer with respect to any such
goods,

and no passenger or member of the crew shall, without the consent of any such officer,
leave the immediate vicinity of the vessel or the aircraft : Provided that nothing in this
section shall prohibit the departure of any crew or passengers from the vicinity of, or the
removal of goods from, the vessel or aircraft where the departure or removal is necessary
for reasons of health, safety or the preservation of life or property.

SECTION 30. Delivery of import manifest or import report

(1) The person-in-charge of - (i) a vessel; or (ii) an aircraft; or (iii) a vehicle, carrying
imported goods or any other person as may be specified by the Central Government, by
notification in the Official Gazette, in this behalf shall, in the case of a vessel or an
aircraft, deliver to the proper officer an import manifest prior to the arrival of the vessel

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 or the aircraft, as the case may be, and in the case of a vehicle, an import report within
twelve hours after its arrival in the customs station, in the prescribed form and if the
import manifest or the import report or any part thereof, is not delivered to the proper
officer within the time specified in this sub-section and if the proper officer is satisfied
that there was no sufficient cause for such delay, the person - in-charge or any other
person referred to in this sub -section, who causes such delay , shall be liable to a penalty
not exceeding fifty thousand rupees. ]

(2) The person delivering the import manifest or import report shall at the foot thereof
make and subscribe to a declaration as to the truth of its contents.

(3) If the proper officer i s satisfied that the import manifest or import report is in any way
incorrect or incomplete, and that there was no fraudulent intention, he may permit it to be
amended or supplemented.

WAREHOUSING

Section 2(43) of the Customs Act, 1962, “warehouse” means a public warehouse licensed
under section 57 or a private warehouse licensed under section 58 OR Special Warehouse
license u/s 58A.

Features of Warehousing:

1. Importer can defer payment of import duties by storing the goods in a safe place

2. Importer allowed doing manufacturing in bonded warehouse and then re-exporting

from it.

3. The importer can be allowed to keep the goods up to One year without payment of
duty from the date he

deposited the goods into warehouse.

4. This time period is extended to Three years for Export Oriented Units and the time
period still be extended to Five years if the goods are capital goods.

5. The importer minimizes the charges by keeping in a warehouse, otherwise the

demurrage charges at port is

heavy.

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 6. Assistant Commissioner of Customs or Deputy Commissioner of Customs are
competent to appoint a warehouse as public bonded warehouse.

7. The Assistant Commissioner of Customs or Deputy Commissioner of Customs may

license private warehouse. The license to private warehouse can be cancelled by giving
ONE month notice.

8. Only dutiable goods can be deposited in the warehouse.

9. Green Bill of Entry has to be submitted by the importer to clear goods from
warehouse for home consumption.

10. Rate of duty is applicable as on the date of presentation of Bill of Entry (i.e. sub-bill
of entry or ex-bond bill of entry) for home consumption.

11. Reassessment is not allowed after the imported goods originally assessed and
warehoused.

12. The exchange rate is the rate at which the Bill of Entry (i.e. ‘into bond’) is presented
for warehousing.

13. If the goods which are not removed from warehouse within the permissible period,
then subsequent removal called as improper removal. The rate of BCD which is
applicable as on the last date on which the goods should have been removed but not
removed is applicable, [Kesoram Rayon v Commissioner of Customs (1996)].

14. Section 59 of the Customs Act, 1962, Bond amount has been increased from twice of
the duty amount to thrice of the duty amount and security also will have to be given.

15. Now, rent charges claimable will not be pre-requisite for non- compliances of any of
the provisions, since it is the issue of custodian i.e. owner of the warehouse.

16. Section 59 of the Customs Act, 1962, Bond amount has been increased from twice of
the duty amount to thrice of the duty amount and security also will have to be given.

17. Rent charges claimable will not be pre-requisite for non- compliances of any of the
provisions, since it is the issue of custodian i.e. owner of the warehouse.

Licensing of Public Warehousing:

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 Sec. 57 The Principal Commissioner of Customs or Commissioner of Customs may,
subject to such conditions as may be prescribed, license a public warehouse wherein
dutiable goods may be deposited.

Licensing of Private Warehouses:

Sec. 58 The Principal Commissioner of Customs or Commissioner of Customs may,

subject to such conditions as may be prescribed, license a private warehouse wherein
dutiable goods imported by or on behalf of the licensee may be deposited.

Licensing of Special Warehousing:

Sec. 58A (1) The Principal Commissioner of Customs or Commissioner of Customs may,
subject to such conditions as may be prescribed, license a special warehouse wherein
dutiable goods may be deposited and such warehouse shall be caused to be locked by the
proper officer and no person shall enter the warehouse or remove any goods therefrom
without the permission of the proper officer.

Sec. 58A (2) The Board may, by notification in the Official Gazette, specify the class of
goods which shall be deposited in the special warehouse licensed under sub-section (1).

Sec. 58A (2) The Board may, by notification in the Official Gazette, specify the class of
goods which shall be deposited in the special warehouse licensed under sub-section (1).

Cancellation of Licence [Section 58B]:

(1) Where a licensee contravenes any of the provisions of this Act or the rules or
regulations made thereunder or breaches any of the conditions of the licence, the Principal
Commissioner of Customs or Commissioner of Customs may cancel the licence granted
under section 57 or section 58 or section 58A.

Provided that before any licence is cancelled, the licensee shall be given a reasonable
opportunity of being heard.

(2) The Principal Commissioner of Customs or Commissioner of Customs may, without

prejudice to any other action that may be taken against the licensee and the goods under
this Act or any other law for the time being in force, suspend operation of the warehouse
during the pendency of an enquiry under sub-section (1).

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 (3) Where the operation of a warehouse is suspended under sub-section (2), no goods
shall be deposited in such warehouse during the period of suspension:

Provided that the provisions of this Chapter shall continue to apply to the goods already
deposited in the warehouse.

(4) Where the licence issued under section 57 or section 58 or section 58A is cancelled,
the goods warehoused shall, within seven days from the date on which order of such
cancellation is served on the licensee or within such extended period as the proper officer
may allow, be removed from such warehouse to another warehouse or be cleared for
home consumption or export:

Provided that the provisions of this Chapter shall continue to apply to the goods already
deposited in the warehouse till they are removed to another warehouse or cleared for
home consumption or for export, during such period”.

Period for which Goods may remain Warehoused

As per Sec. 61 of the Customs Act, 1962

(1) Any warehoused goods may remain in the warehouse in which they are deposited or
in any warehouse to which they may be removed:
(a) in the case of capital goods intended for use in any hundred per cent. export
oriented undertaking or electronic hardware technology park unit or software
technology park unit or any warehouse wherein manufacture or other operations have
been permitted under section 65, till their clearance from the warehouse;
(b) in the case of goods other than capital goods intended for use in any hundred
per cent. export oriented undertaking or electronic hardware technology park unit or
software technology park unit or any warehouse wherein manufacture or other
operations have been permitted under section 65, till their consumption or clearance
from the warehouse; and
(c) in the case of any other goods, till the expiry of one year from the date on
which the proper officer has made an order under sub-section (1) of section 60:

(2) Where any warehoused goods specified in clause (c) of sub- section (1) remain in a
warehouse beyond a period of ninety days from the date on which the proper officer has
made an order under sub-section (1) of section 60, interest shall be payable at such rate as
may be fixed by the Central Government under section 47, on the amount of duty payable at

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the time of clearance of the goods, for the period from the expiry of the said ninety days till
the date of payment of duty on the warehoused goods:

Provided that if the Board considers it necessary so to do, in the public interest, it may,––

(a) by order, and under the circumstances of an exceptional nature, to be specified in such
order, waive

the whole or any part of the interest payable under this section in respect of any warehoused
goods;

(b) by notification in the Official Gazette, specify the class of goods in respect of which
no interest shall be

charged under this section;

(c) by notification in the Official Gazette, specify the class of goods in respect of which
the interest shall be chargeable from the date on which the proper officer has made an order
under sub-section (1) of section 60.

Sec 64 of the Customs Act, 1962 - Owner’s Right to deal with Warehoused Goods:

The owner of any warehoused goods may, after warehousing the same:

(a) inspect the goods;

(b) deal with their containers in such manner as may be necessary to prevent loss or
deterioration or damage to the goods;

(c) sort the goods; or

(d) show the goods for sale.

Note: Since physical control has been abolished, there is no need of obtaining sanction on
payment of MOT charges.

DRAWBACK
Drawback allowable on re-export of duty-paid goods
(1) When any goods capable of being easily identified which have been imported into India
and upon which 48[any duty has been paid on importation,-

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(i) are entered for export and the proper officer makes an order permitting clearance and
loading of the goods for exportation under section 51; or
(ii) are to be exported as baggage and the owner of such baggage, for the purpose of clearing
it, makes a declaration of its contents to the proper officer under section 77 (which
declaration shall be deemed to be an entry for export for the purposes of this section) and
such officer makes an order permitting clearance of the goods for exportation; or
(iii) are entered for export by post under section 82 and the proper officer makes an order
permitting clearance of the goods for exportation, ninety-eight per cent, of such duty shall,
except as otherwise here in after provided, the re-paid as drawback, if]-
(a) the goods are identified to the satisfaction of the 23[Assistant Commissioner of Customs
or Deputy Commissioner of Customs] as the goods which were imported; and
(b) the goods are entered for export within two years from the date of payment of duty on the
importation thereof :
PROVIDED that in any particular case the aforesaid period of two years may, on sufficient
cause being shown, be extended by the Board by such further period as it may deem fit.
(2) Notwithstanding anything contained in sub-section (1), the rate of drawback in the case of
goods which have been used after the importation thereof shall be such as the Central
Government, having regard to the duration of use, depreciation in value and other relevant
circumstances, may, by notification in the Official Gazette, fix.
30[(3) The Central Government may make rules for the purpose of carrying out the
provisions of this section and, in particular, such regulations may-
(a) provide for the manner in which the identity of goods imported in different consignments
which are ordinarily stored together in bulk, may be established;
(b) specify the goods which shall be deemed to be not capable of being easily identified; and
(c) provide for the manner and the time within which a claim for payment of drawback is to
be filed.]
(4) For the purposes of this section-
(a) goods shall be deemed to have been entered for export on the date with reference to which
the rate of duty is calculated under section 16;
(b) in the case of goods assessed to duty provisionally under section l8, the date of payment
of the provisional duty shall be deemed to be the date of payment of duty.
Drawback on imported materials used in the manufacture of goods which are exported
(1) Where it appears to the Central Government that in respect of goods of any class or
description 49[manufactured, processed or on which any operation has been carried out in

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India] 6[being goods which have been entered for export and in respect of which an order
permitting the clearance and loading thereof for exportation has been made under section 5l
by the proper officer], 48[or being goods entered for export by post under section 82 and in
respect of which an order permitting clearance for exportation has been made by the proper
officer] a drawback should be allowed of duties of customs chargeable under this Act on any
imported materials of a class or description used in the 50[manufacture or processing of such
goods or carrying out any operation on such goods], the Central Government may, by
notification in the Official Gazette, direct that drawback shall be allowed in respect of such
goods in accordance with, and subject to, the rules made under sub-section (2):
51[PROVIDED that no drawback shall be allowed under this sub-section in respect of any of
the aforesaid goods which the Central Government may, by rules made under sub-section (2),
specify, if the export value of such goods or class of goods is less than the value of imported
materials used in the 50[manufacture or processing of such goods or carrying out any
operation on such goods] or class of goods, or is not more than such percentage of the value
of the imported materials used in the 50[manufacture or processing of such goods or carrying
any operation on such goods] or class of goods as the Central Government may, by
notification in the Official Gazette, specify in this behalf:
PROVIDED FURTHER that where any drawback has been allowed on any goods under this
subsection and the sale proceeds in respect of such goods are not received by or on behalf of
the exporter in India within the time allowed under the Foreign Exchange Regulation Act,
1973 (46 of 1973), such drawback shall be deemed never to have been allowed and the
Central Government may, by rules made under sub-section (2), specify the procedure for the
recovery or adjustment of the amount of such drawback];
31[(1A) Where it appears to the Central Government that the quantity of a particular material
imported into India is more than the total quantity of like material that has been used in the
goods 49[manufactured, processed or on which any operation has been carried out in India]
and exported outside India, then, the Central Government may, by notification in the Official
Gazette, declare that so much of the material as is contained in the goods exported shall, for
the purpose of sub-section (1), be deemed to be imported material.]
(2) The Central Government may make rules for the purpose of carrying out the provisions of
sub-section (1) and, in particular, such rules may provide,-
30[(a) for the payment of drawback equal to the amount of duty actually paid on the imported
materials used in the manufacture or processing o the goods or carrying out any operation on
the goods or as is specified in the rules as the average amount of duty paid on the materials of

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that class or description used in the manufacture or processing of export goods or carrying
out any operation on export goods of that class or description either by manufacturers
generally or by persons processing or carrying on any operation generally or by any particular
manufacturer or particular person carrying on any process or other operation, and interest, if
any, payable thereon ;]
51[(aa) for specifying the goods in respect of which no drawback shall be allowed;
(ab) for specifying the procedure for recovery or adjustment of the amount of any drawback
which had been allowed under sub-section (1) 30[or interest chargeable thereon];]
(b) for the production of such certificates, documents and other evidence in support of each
claim of drawback as may be necessary;
(c) for requiring the 5[manufacturer or the person carrying out any process or other operation]
to give access to every part of his manufactory to any officer of customs specially authorised
in this behalf by the 23[Assistant Commissioner of Customs or Deputy Commissioner of
Customs] to enable such authorised officer to inspect the processes of 5[manufacture, process
or any other operation carried out] and to verify by actual check or otherwise the statements
made in support of the claim for drawback.
30[(d) for the manner and the time within which the claim for payment drawback may be
filed;] 9[(3) The power to make rules conferred by sub-section (2) include the power to give
drawback with retrospective effect from a date not earlier than the date of changes in the rates
of duty on inputs used in the export goods.]

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