Bharatiya Sakshya Adhiniyam, 2023 : Some Important Features

 Bharatiya Sakshya Adhiniyam, 2023 : Some Important Features

S.2 (b) says "conclusive proof" means when one fact is declared by said Adhiniyam to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

Sec. 20 says oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of S.27 of BSA, 2023.

Sec. 34 of BSA, 2023 says that the existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.

S.113 says when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

S.108 says when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Bharatiya Nyaya Sanhita, 2023 or within any special exception or proviso contained in any other part of the said Sanhita, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

S.102 says persons who are not parties to a document, or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.

S.93 says where any electronic record, purporting or proved to be 5 years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the electronic signature which purports to be the electronic signature of any particular person was so affixed by him or any person authorised by him in this behalf.

Sec. 53 says no fact needs to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:

Sec. 46 says in civil cases the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him, is irrelevant, except in so far as such character appears from facts otherwise relevant.

Sec. 45 says whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.

Written by 

Vishal

Delhi

Notice : Copyright of above blog and its content including headline vests with Vishal. Above should Not be reproduced in any form in newspapers/websites/Ph.D. thesis/College projects/ law firms' newsletters/law journals/books/book chapters/blogs without prior written permission. Fair use should be in terms of Copyright Act, 1957. Any violation will make violator liable for Pecuniary compensation with interest towards the author irrespective of the profit made by the violator. All disputes shall be subject to Delhi Jurisdiction. Reproduction of judgment or publication of judgment unless expressly prohibited by Court according is not an infringement of copyright according to S. 52 (1)(q)(iv) of Copyright Act, 1957. This is not to be considered as any professional legal advice and does not constitute client-attorney relationship.

Rape of a Woman : HC Finds Acquittal of Accused Valid

 Rape of a Woman : HC Finds Acquittal of Accused Valid

In a case, the allegations were on rape.

In Sudha Rani v State [2014] GCtR 4368 (Delhi), the acquittal of rape-accused was found valid.

It was noted that "the parameters for interference in the order of acquittal are confined. It is only if there is a total illegality or perversity pointed out that the fact findings returned by the acquitting Court can be interfered with." The principle that "where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt" was also noted. The Order of Trial Court notes that "it is one of the basic principles of criminal jurisprudence that let hundreds of criminal may go unpunished but one innocent person should not be punished". 

Acquittal of accused was found valid.

Written by 

Vishal

Delhi

Notice : Copyright of above blog and its content including headline vests with Vishal. Above should Not be reproduced in any form in newspapers/websites/Ph.D. thesis/College projects/ law firms' newsletters/law journals/books/book chapters/blogs without prior written permission. Fair use should be in terms of Copyright Act, 1957. Any violation will make violator liable for Pecuniary compensation with interest towards the author irrespective of the profit made by the violator. All disputes shall be subject to Delhi Jurisdiction. Reproduction of judgment or publication of judgment unless expressly prohibited by Court according is not an infringement of copyright according to S. 52 (1)(q)(iv) of Copyright Act, 1957. This is not to be considered as any professional legal advice and does not constitute client-attorney relationship.

Cause of Action and Effect of Filing Application under O.7 Rule 11 of Code of Civil Procedure, 1908

 Cause of Action and Effect of Filing Application under O.7 Rule 11 of Code of Civil Procedure, 1908 : Whether Imposition of Costs on Defendant is a Possibility ?

In a case, A (plaintiff) filed the suit for recovery of a sum of Rs.35,60,000/-, i.e., principal amount of Rs.32 lakhs along with pre-suit interest of Rs.3,60,000/- besides pendent lite and future interest.

A in the plaint has contended that Sh. Raj Kumar Chawla was the proprietor of Defendants No. 4 and 5 concerns and is the predecessor of defendants No.1 to 3.

Defendant [D] by an application has contended that A have miserably failed to file any written condition for refund of double amount of the amount paid by the A to the predecessor of D.  D filed an application under O. 7 Rule 11 (a) for rejection of plaint. It is true that plaint under Order 7 rule 11(a) is to be rejected where it does not disclose any cause of action.

It was reiterated that "pleas taken by the defendant in the written statement would be irrelevant". It is only where on examination of the plaint the court comes to a conclusion that the plaint does not disclose any cause of action, the same is liable to be rejected. While examining the case under Order 7 rule 11, if the court comes to a conclusion that the plaint discloses a cause of action, the plaint cannot be rejected. The defence raised by the defendant in his Written Statement is irrelevant and is not to be considered.

So, by concluding that application filed by D was without merit and only to delay and protract litigation, costs were imposed on D.

Refer Indu Chawla v Bharat Chawala [2014] GCtR 4366 (Delhi).

Lesson : Adventurism backfired. Perhaps, a lesson that efforts to delay disposal of case would entail imposition of costs on party which tries to delay it. This also supports the proposition that adjournment seekers, too, must meet the same fate of being slapped with imposition of costs because adjournment is a ploy to delay litigations in many cases.

 Written by 

Vishal

Delhi

Notice : Copyright of above blog and its content including headline vests with Vishal. Above should Not be reproduced in any form in newspapers/websites/Ph.D. thesis/College projects/ law firms' newsletters/law journals/books/book chapters/blogs without prior written permission. Fair use should be in terms of Copyright Act, 1957. Any violation will make violator liable for Pecuniary compensation with interest towards the author irrespective of the profit made by the violator. All disputes shall be subject to Delhi Jurisdiction. Reproduction of judgment or publication of judgment unless expressly prohibited by Court according is not an infringement of copyright according to S. 52 (1)(q)(iv) of Copyright Act, 1957. This is not to be considered as any professional legal advice and does not constitute client-attorney relationship.

Scope of "Review" in Arbitration : HC Explains the Law

 

Scope of Review in Arbitration : HC Explains the Law

In one of the case, issue of review arose.

In M/s.Madhav Structural Engineering Ltd. v Maharashtra State Road Development) Corporation Limited [2013] GCtR 4353 (Bombay) it was held that "in view of the express bar provided under section 5 that notwithstanding contained any other law for the time being in force, matters which are governed by part I, no judicial authority shall intervene except where so provided in that part" and "the review is not provided in any of the provisions of Part I of the Arbitration and Conciliation Act, 1996".

Further, "the Arbitration and Conciliation Act is a self contained code and as the said Act does not provide any remedy of review, it is manifest that review could not be made." "Remedy of review is substantive remedy and would not be maintainable unless the statute/rules permits. If, the right of review is not provided and is allowed to be exercised, any order if passed would be ultra-virus and without jurisdiction."

 Written by 

Vishal

Delhi

Notice : Copyright of above blog and its content including headline vests with Vishal. Above should Not be reproduced in any form in newspapers/websites/Ph.D. thesis/College projects/ law firms' newsletters/law journals/books/book chapters/blogs without prior written permission. Fair use should be in terms of Copyright Act, 1957. Any violation will make violator liable for Pecuniary compensation with interest towards the author irrespective of the profit made by the violator. All disputes shall be subject to Delhi Jurisdiction. Reproduction of judgment or publication of judgment unless expressly prohibited by Court according is not an infringement of copyright according to S. 52 (1)(q)(iv) of Copyright Act, 1957. This is not to be considered as any professional legal advice and does not constitute client-attorney relationship.

Indirect Tax : HC Answers Vexed Legal Issue and Allows the Petition

 Indirect Tax : HC Answers Vexed Legal Issue and Allows the Petition

In one of the case, an important legal issue on indirect tax was answered. 

In Combined Traders v Commissioner of Trade and Taxes [2019] GCtR 4351 (Delhi) it was reiterated in context of Delhi Value Added Tax Act, 2004 that "where the order under challenge is set aside, it results in restoration of the position that existed on the date of the order that has been quashed."  It was also held that "Section 34 (2) of the DVAT Act appears to be a general provision relating to assessments".

Written by 

Vishal

Delhi

Notice : Copyright of above blog and its content including headline vests with Vishal. Above should Not be reproduced in any form in newspapers/websites/Ph.D. thesis/College projects/ law firms' newsletters/law journals/books/book chapters/blogs without prior written permission. Fair use should be in terms of Copyright Act, 1957. Any violation will make violator liable for Pecuniary compensation with interest towards the author irrespective of the profit made by the violator. All disputes shall be subject to Delhi Jurisdiction. Reproduction of judgment or publication of judgment unless expressly prohibited by Court according is not an infringement of copyright according to S. 52 (1)(q)(iv) of Copyright Act, 1957. This is not to be considered as any professional legal advice and does not constitute client-attorney relationship.

Role of Motive in Crime : HC Explains the Legal Position

 Role of Motive in Crime : HC Explains the Legal Position

Many judgments have been pronounced by Hon'ble High Court. 

In Jaleshwar Majhi v State [2017] GCtR 4224 (Delhi) it was reiterated thus : - 

"The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction."

"A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the court that the accused was guilty of the offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime."

"It is difficult to lay down a hard and fast rule as to how and in what manner a person would react and to achieve his motive could go to what extent in the commission of crime under a particular circumstance. It is not possible to measure up the extent of his feelings, sentiments and desire and say as to what compelled him to commit a particular crime. There may be persons who under frustration and on mere trifling domestic matters take decision to commit a serious crime, while others may approach it with cool and calm mind and think more dispassionately before taking any hazardous and serious steps. It all depends as to how a person reacts in a given circumstance and it is he alone who best knows his intention and motive to commit a crime and the extent thereof."

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Vishal

Delhi

Notice : Copyright of above blog and its content including headline vests with Vishal. Above should Not be reproduced in any form in newspapers/websites/Ph.D. thesis/College projects/ law firms' newsletters/law journals/books/book chapters/blogs without prior written permission. Fair use should be in terms of Copyright Act, 1957. Any violation will make violator liable for Pecuniary compensation with interest towards the author irrespective of the profit made. All disputes shall be subject to Delhi Jurisdiction. Reproduction of judgment or publication of judgment unless expressly prohibited by Court according is not an infringement of copyright according to S. 52 (1)(q)(iv) of Copyright Act, 1957. This is not to be considered as any professional legal advice and does not constitute client-attorney relationship.   

S.499 of IPC ["Defamation"] : Supreme Court Explains the Scope

 S.499 of IPC ["Defamation"] : Supreme Court Explains the Scope

Several judgments have been pronounced by Hon'ble Supreme Court. 

In Mohammed Abdulla Khan v Prakash K [2017] GCtR 1024 (SC) it was held thus : - 

Section 499 IPC defines the offence of defamation. It contains 10 exceptions and 4 explanations. 

To constitute an offence of defamation it requires a person to make some imputation concerning any other person; (i) Such imputation must be made either (a) With intention, or (b) Knowledge, or (c) Having a reason to believe that such an imputation will harm the reputation of the person against whom the imputation is made. (ii) Imputation could be, by (a) Words, either spoken or written, or (b) By making signs, or (c) Visible representations (iii) Imputation could be either made or published. 

The difference between making of an imputation and publishing the same is: If ‘X’ tells ‘Y’ that ‘Y’ is a criminal – ‘X’ makes an imputation. If ‘X’ tells ‘Z’ that ‘Y’ is a criminal – ‘X’ publishes the imputation.

The essence of publication in the context of Section 499 is the communication of defamatory imputation to persons other than the persons against whom the imputation is made.

Committing any act which constitutes defamation under Section 499 IPC is punishable offence under Section 500 IPC. Printing or engraving any defamatory material is altogether a different offence under Section 501 IPC. Offering for sale or selling any such printed or engraved defamatory material is yet another distinct offence under Section 502 IPC.

If the content of any news item carried in a newspaper is defamatory as defined under Section 499 IPC, the mere printing of such material “knowing or having good reason to believe that such matter is defamatory” itself constitutes a distinct offence under Section 501 IPC. The sale or offering for sale of such printed “substance containing defamatory matter” “knowing that it contains such matter” is a distinct offence under Section 502 IPC. 

For the acts of printing or selling or offering to sell need not only be the physical acts but include the legal right to sell i.e. to transfer the title in the goods - the newspaper. Those activities if carried on by people, who are employed either directly or indirectly by the owner of the newspaper, perhaps render all of them i.e., the owner, the printer, or the person selling or offering for sale liable for the offences under Sections 501 or 502 IPC, (as the case may be) if the other elements indicated in those Sections are satisfied. 

In England, at one point of time, the owner of a newspaper was held to be vicariously liable for an offence of defamation (libel). 

Written by 

Vishal

Delhi

Notice : Copyright of above blog and its content including headline vests with Vishal. Above should Not be reproduced in any form in newspapers/websites/Ph.D. thesis/College projects/ law firms' newsletters/law journals/books/book chapters/blogs without prior written permission. Fair use should be in terms of Copyright Act, 1957. Any violation will make violator liable for Pecuniary compensation with interest towards the author irrespective of the profit made. All disputes shall be subject to Delhi Jurisdiction. Reproduction of judgment or publication of judgment unless expressly prohibited by Court according is not an infringement of copyright according to S. 52 (1)(q)(iv) of Copyright Act, 1957. This is not to be considered as any professional legal advice and does not constitute client-attorney relationship.   

Ex - Parte Arbitral Award : HC Lays Down the Scope of Interference

Ex Parte Arbitral Award : HC Lays Down Scope of Interference

Sec. 16 (2) of Arbitration and Conciliation Act, 1996 says that a plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator. Sec. 21 of Arbitration and Conciliation Act, 1996 is very important ; it says that unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.

The scope of interference by High Court in an ex parte arbitral award can be seen from Ventura Exim v V.S. Matrix Pvt Ltd [2016] GCtR 4219 (Delhi).

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Vishal

Delhi

Notice : Copyright of above blog and its content including headline vests with Vishal. Above should Not be reproduced in any form in newspapers/websites/Ph.D. thesis/College projects/ law firms' newsletters/law journals/books/book chapters/blogs without prior written permission. Fair use should be in terms of Copyright Act, 1957. Any violation will make violator liable for Pecuniary compensation with interest towards the author irrespective of the profit made. All disputes shall be subject to Delhi Jurisdiction. Reproduction of judgment or publication of judgment unless expressly prohibited by Court according is not an infringement of copyright according to S. 52 (1)(q)(iv) of Copyright Act, 1957. This is not to be considered as any professional legal advice and does not constitute client-attorney relationship.  

Territorial Jurisdiction under Arbitration and Conciliation Act, 1996

 Territorial Jurisdiction under Arbitration and Conciliation Act, 1996

Explanation 1 of S.12 of Arbitration and Conciliation Act, 1996 states that "the grounds stated in the Fifth Schedule shall guide in determining whether circumstances exist which give rise to justifiable doubts as to the independence or impartiality of an arbitrator". When we look at S.28 (1) (a) of A&C Act, 1996 the phrase used is "substantive law for the time being in force in India". The time limit mentioned in S.29A(1) of A&C Act, 1996 is 12 months.

A very important issue of territorial jurisdiction in cases under A&C Act, 1996 was discussed and explained in Sravanthi Infratech Pvt Ltd v Tricolite Electrical Industries Ltd [2016] GCtR 4218 (Delhi). 

Written by 

Vishal

Delhi

Notice : Copyright of above blog and its content including headline vests with Vishal. Above should Not be reproduced in any form in newspapers/websites/Ph.D. thesis/College projects/ law firms' newsletters/law journals/books/book chapters/blogs without prior written permission. Fair use should be in terms of Copyright Act, 1957. Any violation will make violator liable for Pecuniary compensation with interest towards the author irrespective of the profit made. All disputes shall be subject to Delhi Jurisdiction. Reproduction of judgment or publication of judgment unless expressly prohibited by Court according is not an infringement of copyright according to S. 52 (1)(q)(iv) of Copyright Act, 1957. This is not to be considered as any professional legal advice and does not constitute client-attorney relationship.  

Some Features of Bharatiya Nagarik Suraksha (Second) Sanhita, 2023

  Bharatiya Nagarik Suraksha (Second) Sanhita, 2023 : Features

S.6 -  Four(4) classes of Criminal Courts. 

S.37 (a) - Police Control Room

S.40 - Arrest by private person. 

S.341 - Advocate at the expense of State.

S.144 - Disposal in 60 days.

S.531 - Code of Criminal Procedure, 1973 to be repealed.

Voyeurism is made a bailable offence.

Stalking also a bailable offence.

Please note that this Bill is still not an Act. 

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Vishal

Delhi

Notice : Copyright of above blog and its content including headline vests with Vishal. Above should Not be reproduced in any form in newspapers/websites/Ph.D. thesis/College projects/ law firms' newsletters/law journals/books/book chapters/blogs without prior written permission. Fair use should be in terms of Copyright Act, 1957. Any violation will make violator liable for Pecuniary compensation with interest towards the author irrespective of the profit made. All disputes shall be subject to Delhi Jurisdiction. Reproduction of judgment or publication of judgment unless expressly prohibited by Court according is not an infringement of copyright according to S. 52 (1)(q)(iv) of Copyright Act, 1957. This is not to be considered as any professional legal advice and does not constitute client-attorney relationship.