SEIZURE AND CONFISCATION

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SEIZURE AND CONFISCATION

                                                  

After investigation if the goods are found liable for confiscation, the taking of its possession from the owner by the empowered authority is termed as seizure. Confiscation meaning losing of ownership as well after proper adjudication. In other words, confiscation is the lawful taking of the goods whose import is prohibited in India. Seizure always precedes confiscation. The Customs Act 1962, (hereinafter will be referred as “Act”) regulates the procedure of Seizure and Confiscation in India.

Seizure under the Customs Act

Section 110 of the Act lays down the procedure of seizure of goods, documents and things. Sub- section (1) of the provision States that-

“If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods: Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer.”

Further if the goods are of perishable or hazardous nature in such cases the officer “shall prepare an inventory of such goods containing such details relating to their description, quality, quantity, mark, numbers, country of origin and other particulars as the proper officer may consider relevant to the identity of the goods in any proceedings under this Act and shall make an application to a Magistrate for the purpose of— (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of the Magistrate, photographs of such goods, and certifying such photographs as true; or (c) allowing to draw representative samples of such goods, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn.”

Further Section 110(2) lays down the rule responsibility to send a notice under section 124 of the act within six months of the seizure to the owner. If this requirement is not met the goods are to be returned after 6 months. However, “Principal Commissioner of Customs or Commissioner of Customs may, for reasons to be recorded in writing, extend such period to a further period not exceeding six months and inform the person from whom such goods were seized before the expiry of the period so specified.”

Sub-section (3) grants power to the proper officer to seize any relevant documents and thinks which he thinks to be useful for the further proceedings. Whereas, sub- section (4) states that “The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts therefrom in the presence of an officer of customs.”

Section 110A provides for the provisional release of goods it states that “Any goods, documents or things seized under section 110, may, pending the order of the [adjudicating authority], be released to the owner on taking a bond from him in the proper form with such security and conditions as the [adjudicating authority] may require.]”

In the case of S. B. International v. Asst. Director DRI, 2018  the words “reason to believe” in Section 110(1) is material and the proper officer cannot seize the goods on the basis of mere suspicion.

Principal Commissioner of Customs (Import), ICD v. Santhosh Handloom, 2016,  relying on the judgement of Harbans Lal v. Collector, 1993 the court held that Section 110 is the only provision that deals with seizure under the custom act. Further it talks about the issuance of show cause notice failing which goods are to be returned to the owner as well as the penal nature of the confiscation process makes it necessary that the notice is served to the owner of the goods only or the other person specially authorised by the owner for this purpose.

Confiscation under the Customs Act

  1. Section 111 provides for the confiscation of improperly imported goods and lays down the list of goods that can be confiscated under this provision when brought from outside of India and Section 112 provides penalties for the same.
  2. Section 113 provides for the confiscation of improperly exported goods and lays down the list of goods that can be confiscated under this provision when brought from outside of India and Section 114 provides penalties for the same.
  3. Section 115 provides for conveyances that are  liable for the confiscation.
  4. Section 118 grants the authority to confiscate packages due to their content. It states as follows:-

(a) Where any goods imported in a package are liable to confiscation, the package and any other goods imported in that package shall also be liable to confiscation.

(b) Where any goods are brought in a package within the limits of a customs area for the purpose of exportation and are liable to confiscation, the package and any other goods contained therein shall also be liable to confiscation.

  1. Section 119 grants the authority to confiscate goods used to conceal smuggled goods with the smuggled goods.
  2. Section 120 grants the authority to confiscate smuggled goods in case their shape has been changed. Further if smuggled goods are mixed with the other goods in a way that they cannot be separated, the whole is liable for confiscation. However if “the owner of such goods proves that he had no knowledge or reason to believe that they included any smuggled goods, only such part of the goods the value of which is equal to the value of the smuggled goods shall be liable to confiscation.”
  3. Section 121 provides for the confiscation of the sale proceeds of the smuggled goods in case goods are sold by a person having knowledge or reason to believe that the goods are smuggled goods.
  4. Section 122 provides that when  “anything is liable to confiscation or any person is liable to a penalty, such confiscation or penalty may be adjudged”.  Further Section 122A states that a “(1) The adjudicating authority shall, in any proceeding under this Chapter or any other provision of this Act, give an opportunity of being heard to a party in a proceeding, if the party so desires. (2) The adjudicating authority may, if sufficient cause is shown at any stage of proceeding referred to in sub-section (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing: 

Provided that no such adjournment shall be granted more than three times to a party during the proceeding”

  1. Section 123 provides for the burden of proof in certain cases. It states that “(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be— 

(a) in a case where such seizure is made from the possession of any person,— (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; 

(b) in any other case, on the person, if any, who claims to be the owner of the goods so seized.”

(2) This section shall apply to gold, [and manufactures thereof], watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify. 

  1. Section 124 mandates  for the issue of show cause notice before confiscation of the goods.
  2. Section 125 gives the option to pay fine instead of confiscation and states the conditions for the same. 
  3. Section 126 states that confiscated  goods vest in the government after confiscation.
  4. Lastly  Section 127 states that “The award of any confiscation or penalty under this Act by an officer of customs shall not prevent the infliction of any punishment to which the person affected thereby is liable under the provisions of Chapter XVI of this Act or under any other law.”

Conclusion

In the present blog we briefly discussed the procedure of seizure and confiscation in India as prescribed by  the Customs Act, 1965. The act very elaborately explains the procedures related to seizure and confiscation of illegally exported and imported goods  and also provides for the fines and penalties for the same.

References 

  1. Jena, R.C. (2018, August 28). Complete Provisions of Seizure and Confiscation under Customs Act, 1962. TaxGuru. https://taxguru.in/custom-duty/seizure-confiscation-customs-act-1962.html 
  2. The Custom Act,1962.
  3. S. B. International v. Asst. Director DRI, 2018 (361) E.L.T. 305 (Del.)
  4. Principal Commissioner of Customs (Import), ICD v. Santhosh Handloom, 2016 (337) E.L.T.44 (Delhi High Court)
  5. Harbans Lal Vs. Collector of Central Excise And Customs Chandigarh, AIR 1993 SC 2487.

 

By- Indira Yadav

PROVISIONS RELATED TO ARREST AND BAIL UNDER CRPC (Part2)

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PROVISIONS RELATED TO ARREST AND BAIL UNDER CRPC (Part2)

Link to Part 1

Bail under Section 436 of the Code

Sub-section (1): This section applies to only persons who are accused of committing a bailable offence. The presence of the word shall connote that it is mandatory that the person be let such a person out on bail. It is required that such a person seeking bail shall bring two persons as sureties and pay an amount as a bond. This is done to ensure such a persons’ appearance in court during his/her trial.

However, if such a person is unable to pay the specified sum of money or bring the sureties, bail will not be rejected. Such a person is termed as an indigent person. A person is said to be indigent when he is unable to give bail within a week of his arrest. The word appears in this section also includes a person who has voluntarily produced himself/herself before the court or police where no warrant or summons was issued. In Dharmu Naik v. Rabindranath Acharya, it was held that refusal to grant bail in contravention of this section will make the detention illegal and the police officer causing such detention may be held guilty of wrongful confinement under Section 342 of the Indian Penal Code.All you need to know about Preventive Arrest Laws in India - iPleaders

Sub-section (2): According to this subsection, if a person does not comply with the conditions of the bail-bond, the court can re-arrest such a person or issue a summons or a warrant. In Mohd. Shahabuddin v. State of Bihar, it was held that under no circumstances should the person be detained beyond the maximum period stated for the offence except when the delay is caused by the accused person itself.

Lastly, if the person accused is in detention for one half of the actual of his maximum punishment, the magistrate is to call upon the prosecution and hear their sides and on recording their reasons, either continue such a detention or release the person.

Bail under Section 437 of the code

When the offence committed is a non-bailable offence, it is upon the discretion of the Court and Police officer whether to grant bail or not. This Section deals with bails for non-bailable offences. The word may in this section connotes a certain level of discretion upon the court or the police officer granting such a bail.

The discretion which is applied should be exercised according to certain rules and principles as laid down by the code and also in line with Judicial decisions. There is no fixed rule which the court uses to determine their discretion. However, the probability of granting bail is inversely proportional to the gravity of the offence committed.

Discretion when applied to a court of justice, means sound discretion guided by law, it must be governed by law not humor and should not be arbitrary, vague and fanciful.

It is important to note that the object of detention during the criminal proceedings is not to punish the accused.

Following are a few accepted factors which the court take into consideration while granting bail in case of non-bailable offences:

  •         The severity of the punishment upon conviction,
  •         Danger of the accused absconding if granted bail,
  •         Probability of the accused tampering with witnesses and evidence if granted bail,
  •         The health, age and sex of the accused seeking such bail,
  •         The probability of the person committing more offences if released on bail, etc.

The above list is not at all exhaustive and the discretion varies from case to case. In Shahnawaz v. State of U.P, it was held that if a bail is granted to an accused by a bench then, another bench is not bound to grant bail to another similarly placed accused.

Subclause (3) states that the court can lay down certain conditions while granting bail to the accused which have to be strictly adhered to. These conditions can be imposed only by the Court and not by the police. It is important that such conditions are reasonable in nature. The conditions imposed should be such that are linked with the preventing the escape of the accused or preventing the accused from committing any further crime or such a condition in the interest of Justice.

In Mukeshbhai Nanubhai Patel v. State of Gujarat, the order of the Sessions Court granting bail on the condition that the accused should pay a certain amount, per month till the end of the proceedings was held incorrect. Further, seizure of passport and order to return dowry articles as a condition for grant of anticipatory bail was held to be incorrect by the Court.

Sub-clause (4) states that any officer or court releasing any person in a non-bailable offence is mandatorily required to record in writing the reasons for doing so. It has been held that this requirement helps the High Court or Court of Sessions to ascertain the correctness of such an order.

While releasing a person on bail there is always going to be a conflict between personal liberty of the accused and the societal interest at large. In Meenu Dewan v. State, it was held that, if the offence is of such a nature that affects the vital interest of the society and has adverse effects on social and family life of victims then, bail would not be granted.

Bail under Section 439 of Cr. P.C.

A person can move to the High Court or the Sessions Court to apply for bail under this Section only when he is in custody. In Naresh Kumar Yadav v. Ravindra Kumar, it has been held that a person is said to be in custody, within the meaning of this section only when he is in duress either because he/she is held by the investigation agency or other police or allied authority or is under the control of the court having been remanded by Judicial order, or having presented himself/herself to the court’s jurisdiction and submitted to its orders by physical presence.

The discretion granted to the High Court to grant bail is very wide and remains unfettered by Section 437 of the Code.

In Sanjay Chandra v. CBI, the followed points were clarified by the Supreme Court,

An accused is detained in custody not because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried and because the detention is necessary to ensure his presence during trial.

While granting bail, three main elements are necessary to be considered, the charge, the nature of the evidence by which it is supported and the punishment to which the party will be liable if convicted.

Bail discretion, on the basis of evidence about the criminal record of the defendant is also of an exercise of relevance.

A person acquitted by the lower court for a grave offence, applying for bail at the High court will have a greater chance of getting bail as his chances of jumping the gauntlet of justice is much lesser as he already has confidence because of being acquitted once.

If the trial is to take a long period of time, it is not in the interest of justice that the accused are in jail for an indefinite period.

The accused should not be denied bail merely because of the sentiments of the community against bail. According to the law, the accused is innocent until he is proven guilty.

In A.K Gopalan v. State of Madras, it was held that the liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police.

While granting bail there is always going to be a conflict between the personal liberty of the accused which is his Fundamental Right under Article 21 versus the society being exposed to the misadventures of a person alleged to have committed a crime. Liberty exists in proportion to wholesome restraint, the more restraint on others to keep off from us, the more liberty we have.

Further, it has been held in Siddharam Satligappa Mhetre v. State of Maharashtra it was held, just as liberty is precious to an individual, is the interest of the society with respect to maintenance of peace, law and order. Both are equally important.

In State of U.P v. Amarmani Tripathi it was held that the following matters are to be considered while granting bail:

Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence.

Nature and gravity of the charge

Severity of the punishment if convicted.

Danger of the accused absconding and fleeing if released on bail.

Likelihood of the offence being repeated by the accused if released on bail and

Reasonable apprehension of the witnesses being tampered with if the accused is granted bail.

In Sundeep Kumar Bafna v. State of Maharashtra, it was discussed, For the application of this section, it is necessary that the person seeking bail is in custody. Custody under this section includes when a person is arrested by the police, brought before a magistrate or when the magistrate orders remand to judicial or other custody. It is important to note that a person is said to be in (Judicial) custody even when he/she surrenders in court and submits to its direction.

Further, it was held that, if the magistrate disallows bail, the accused can move the Court of Sessions for the same. There is no such provision in the Code that prohibits a High Court from hearing a bail application and subsequently granting bail provided such a person is in custody.

Bail under Section 389 of the Code

This section can be invoked for granting bail under three circumstances: The person seeking for release of bail is already convicted for an offence, The person is in confinement and Such a person’s appeal against the conviction is pending.

This section is wide enough to include the hearing of the appeal seeking bail of a person who is convicted for an offence, punishment is life imprisonment or death. If the court accepts such an appeal and releases such a person, the prosecution is entitled to file an application for the cancellation of such a bail.

In Manu Sharma v. State (NCT of Delhi), it was held that while applying its discretion to hear such an appeal for bail, the court should inter alia consider the following things:

  •         Whether prima facie ground is disclosed for substantial doubt about the conviction and
  •         Whether there is any likelihood of unreasonable delay in the disposal of such an appeal.

An important feature of this section is that while exercising its power under this section, the appellate court can suspend the execution of the sentence as well as the conviction pending an appeal preferred by a convicted person, Held in V. Sundarami Reddy v. State. In addition to this, in Gopal v. State of M.P, it was held that the application for bail and the suspension of sentence under Section 389 is a class by itself maintainable only in a pending appeal. This is an essential component of the appeal.

The time taken by a court to dispose-off a case has to also be taken into consideration while granting bail. In Jadeja Ajitsinh Natubha v. State of Gujarat, it was held that as long as the appellate court is not in a position to hear the appeal of the accused regarding bail, within a reasonable timeframe, the court should, in the normal course release the accused on bail unless there are other valid reasons for doing otherwise. However, in Rabindra Nath Singh v. Rajesh Ranjan, it was held that the delay in hearing the appeal by itself is not a sufficient ground to grant bail.

In Khilari v State of U.P, it was held that irrespective whether the offence is bailable or non bailable, the discretion of releasing the person on bail lies in the discretion of the appellate court and this discretion is to be exercised judicially. Further, the appellate court is required to record the reasons for bail.

Bail under Section 395 of the Code

This section shall be invoked when there is a question of the Constitutional validity of any Act, regulation or Ordinance. A mere plea raised by a party challenging the validity of an act is insufficient for invoking this section and making a reference to the High Court. There should be a valid, substantial ground that challenges the validity of any Act for invoking this section. Before a lower court makes a reference to the High Court under this Section, it is required to record its reasons for doing so.

In line with this Section, Article 228 of the Constitution of India also empowers the High Court to withdraw a particular case from the subordinate court and take authority of such a case and dispose of it after hearing it.

Sub-section (2) of this Section specifies that only the Court of Sessions or the Metropolitan Magistrate have the power to make a reference to the High Court. Further, in Emperor v. Molla Fuzla Karim, it was held that such a reference can be made to the High Court only when there is a question of law and not of fact.

Section 397 of the Code

Under this section, the High Court or the Court of Sessions may call upon for the record of any proceedings before any inferior criminal court for the purpose of examining and satisfying itself as to the correctness and legality of any order passed by such an inferior court. The inferior court should be within the jurisdiction of the High Court.

In Purshottam v. State, it was held that the object of revisional jurisdiction is to confer upon the superior Criminal Courts a kind of supervisory jurisdiction. In case the superior court finds any flaw in the legality or correctness of the order passed by an inferior court within its jurisdiction, Sections 398 to 401 empower the Superior courts to pass an order correcting such flaws.

For the purpose of this section, the High Court is superior to the Court of Sessions. Hence, the High Court is empowered to call upon the records of any proceedings which were conducted In the Court of Sessions. However, in Ismat Sara v. State of Karnataka, it was held, that a magistrate holding an enquiry under section 176 of the code does not function as a Criminal Court and hence, the records of such an enquiry cannot be called upon by the High Court for the purpose of re-examination under Section 397.

Sub-section (2) of the Code disallows the practice of revisional power in relation to any interlocutory order passed in any appeal, inquiry or trial. This is done with the object of speeding up the disposal of criminal cases.

In K. Sudhakaran v. State of Kerala, it was held that revision petitions against interlocutory orders would not only delay justice but also at times defeat it. Interlocutory order has not been defined by the Code. In the normal course, interlocutory order is an order which is passed at some intermediate stage of a proceeding to advance the cause of justice with respect to the final determination of the rights between the parties.

Bail under Section 360 of the Code

This section is a piece of beneficent legislation as it empowers the court to release an accused who has been convicted on the basis of good conduct under certain circumstances. The object of this section is to avoid sending the first offender to prison for an offence which is not of a serious nature. This enables a hope of reducing the risk of turning such an offender into a regular criminal.

Sub-section (1) of section 360, Criminal Procedure Code, deals with the power of a court or a Magistrate of the second class specially empowered by the State Government in this behalf, to release a convicted offender 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 Magistrate may direct, and in the meantime to keep the peace and be of good behaviour.

The Magistrate thus has discretion either to punish the offender with imprisonment or release him on probation of good conduct. This section tries to reform the criminals by treating them leniently only in those cases where there is no serious danger or threat to the society.

In Hari Singh v. Sukhbir Singh, the learned judge held, the court is to use this discretion in respect to probation judicially, and having regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. The main of this section is to prevent youngsters from being committed to jail, where they may associate with hardened criminals, who may lead them further along the path of crime and further ruin their life due to bad influence, who may have committed the crime through ignorance or inadvertence, held in Jamal Haq v. State of Tripura

Probation cannot be claimed as a matter of right. This provision lays a discretion upon the Court as to whether to grant probation or not. It is important to note that even if all the conditions as specified under sub-section (3) are fulfilled the convict cannot claim probation as a matter of right.

Anticipatory Bails

The Code of Criminal Procedure (1898) did not contain any specific provision of anticipatory bail. The Law Commission of India, in its 41st Report dated September 24th 1969 pointed out the necessity of introducing a provision in the code of Criminal Procedure enabling the High Court and the Court of Sessions to grant Anticipatory bail.

The necessity of granting anticipatory bail arises mainly because of two reasons:

Sometimes influential persons try to implicate their rivals in false cases for the purpose of disgracing or for other mala fide intentions by getting them detained in jail for some days.

Where the likelihood of the person absconding or misusing the liberty is very insignificant.

The Indian Penal Code and Code of Criminal Procedure operates on the premise of innocent until guilty. Hence, unless there is a very strong reason to detain the person in jail before the actual conviction such a person is not detained.

Section 438 lays down the procedure for anticipatory bail. When an order of Anticipatory bail is passed by the court, what happens is that in the event of arrest at a future date, the person will be granted bail. In other words, it is a bail in the anticipation of an arrest in the near future. This section can be invoked only before the person is arrested. For invoking this section, there should be a strong belief that the said person is going to be arrested.

The belief of such a person should be on tangible grounds. This section can be invoked not only when the arrest is apprehended at the hands of the police but also when the arrest is apprehended at the instance of the magistrate. Anticipatory bail can be issued only by passing an interim order. It is mandatory for the person applying for anticipatory bail to be present in court during the final hearing of the application.

According to the Law Commission Report (41st Law Commission Report, page 321), it was stated that the need for this provision is that sometimes it is possible that influential persons with their power would try to fraudulently implicate any person in false causes to disgrace them or for malice by getting them detained in jail. This section works as a shield for such persons who are likely to be detained.

Sub-clause (2) of this section uses the words as it may think fit implying that the judges have a wide discretion with respect to granting anticipatory bail. According to the 48th Law Commission Report (page 10), it has been stated that the directions can be issued only for reasons to be recorded, and if the court is satisfied that such a direction is necessary for the interest of justice.

Initially, in the general course, an application for anticipatory bail had to be first filed In the court of Sessions and then the High Court. However, in Chendrasekhar Rao v. Y.V Kamala kumari it was clarified that an application under Section 438 could be pleaded directly in the High Court, without taking recourse to the Court of Sessions.

Section 438 has a very wide scope. If the offence is non-bailable it is immaterial whether the offence is cognizable or non-cognizable. Further, in B. Kuppa Naidu v. State an anticipatory bail was granted to a person who was accused of committing an offence under the Custom Laws. This shows the wide scope of this Section that it can be invoked not only for offences under the IPC but other codes too. Anticipatory bail can even be granted to a person who is accused of committing a crime has punishment is that of life imprisonment or death.

Gurbaksh Singh Sibbia v. State of Punjab is a landmark case with respect to anticipatory judgement. A constitution bench had passed this judgement.

Following are the pointers of this case:

The difference between a normal bail and an anticipatory bail – The normal bail is granted after the arrest whereas, an anticipatory bail is granted before the arrest. Anticipatory bail is granted in anticipation of an arrest.

There is no restriction on granting anticipatory bail merely because the alleged offence is punishable with imprisonment for life or death.

The imminence of a likely arrest founded on a reasonable belief can be shown to exist even when a FIR is not yet filed. Which is to say that the registration of an FIR is not a condition precedent for applying for anticipatory bail.

Mere fear of being arrested is not a sufficient ground for invoking this section. There have to be substantive grounds.

It is true that the discretion to grant anticipatory bail is to be exercised with care and circumspection. However, it is not true to say that this power to grant anticipatory bail should be exercised only in exceptional cases.

The limitations imposed in Section 437 on granting of bail is not completely implicit in Section 438.

The High court or Sessions Court cannot leave the question behind with respect to anticipatory bail for the decision of the magistrate under Section 437. The High Court must use its own mind to check whether a case has been made out for granting such relief.

Considering the antecedents of the accused, if it appears that he will take advantage of the anticipatory bail and flee from justice, the judge would not pass the order.

In Masroor v. State of U.P, it was held that even though the judges have a wide discretion to grant anticipatory bail, if they do grant, they should mandatorily record the reasons for doing so. The conditions mentioned in sub-section (2) are not exhaustive and the courts may impose other conditions too.

The duration of the effectiveness of the anticipatory bail is not mentioned in this section. As soon as the person is enlarged on bail on the directions of the Anticipatory bail order, it would be deemed by implication that the bail was granted under Section 437.

However, in C.H Siva Prasad v. State of A.P, it was held that the bail shall be effective until the conclusion of the trial, unless it is cancelled by the court taking action under section 437(5) or under Section 439(2) of the code on the grounds known to law and filing of Challan in the court is by itself no ground to cancel the bail.

In Afsar Khan v. State by Girinagar Police, Bangalore, 1992 Cr.LJ 1676, Karnataka High Court observed, A reading of the entire Chapter which deals with the provisions relating to bail, does not say that when a person is released on bail, the Court can also insist upon him to give cash security. After all, the object of granting bail is to see that the liberty of an individual is extended. Of course, when an accusation is made against a person, in the event of his release, it is the duty of the Court to see that the interest of the State and the public is safeguarded. For that purpose, the Court is empowered to insist upon the appearance of the accused whenever so required either by the Police or Court either for investigation or to take up trial. During this period the Court can also warn the accused of his activities or movements in any way causing a fear or resulting in tampering with the prosecution evidence.

While the Court exercises its discretion, whether it is under S. 437 or 438 or 439, it shall exercise the same properly and not in an arbitrary manner. The discretion exercised shall appear a just and reasonable one. It is true that no norms are prescribed to exercise discretion. Merely because, norms are not prescribed for the Court to exercise discretion under Ss. 437, 438 or 439 that does not mean the discretion shall be left to the whims of the Court. Guiding principle shall be as indicated earlier with sound reasoning and in no way opposed to any other law. The Legislature has given this discretion to the Court keeping full faith in the system of administration of justice. While administering justice; it is the duty of the Court to see that any order to be passed or conditions to be imposed shall always be in the interest of both the accused and the State. The conditions shall not be capricious. On the other hand, it shall be in the aid of giving effect to the very object behind the discretion.

Difference between bailable and non-bailable offence

Non-bailable

If the offence committed is non-bailable, the police officer cannot himself grant bail to the accused. Only the magistrate can authorize the bail in a non-bailable offence. An offence is said to be non bailable and when the punishment for it is more than 3 years. It is to be noted that just because the offence is non-bailable does not mean that the person accused will not be granted bail at all. In such cases it is up to the discretion of the court as to whether to grant bail or not.

Bailable

In a bailable offence, the police officer in charge has the power to grant bail to the person accused. An offence is said to be bailable when the punishment for that offence is less than 3 years. It is the right of the accused to be released on bail in a bailable offence. This right is subject to certain conditions which will be discussed later in this paper.

 CONCLUSION

An arrest of a person is a procedure where the liberty of a person is restrained to apprehend him for the commission of a crime. This may also be done in case of suspicion so that the alleged offender could be presented in court. It is important to arrest lawbreakers to ensure peace, law and order in the society. Usually, it is the police which arrests a person but in certain situations, private persons or a Magistrate are also empowered to arrest a person. The Magistrate has the power to order the arrest of a person and under certain situations also order the custody of such a person. Whereas a private person shall hand over the person arrested to the police or nearest police station as soon as possible. He shall take into consideration various factors before arresting an offender as it could be dangerous. Further, after the arrest of the person, the private person should follow the necessary protocol. They need to have a presence of mind as they are not trained to deal with such situations. Although it is dangerous for private persons to arrest offenders, they can do a commendable job by stopping an offender from getting away before the arrival of the police. 

Bail is an important check and balance to ensure that no innocent person is punished until proven guilty. But the complicated system of bail in the country’s criminal law system often fails to appreciate it. Grant or refusal of bail depends on factors that are remotely connected with the merit of the case. The recommendations of the Law Commission in its 268th report on bail reforms are important and they should be implemented so that a  fair and transparent system of bail evolves in our criminal law system. This would go a long way in upholding the rights of life and liberty enshrined in the Indian Constitution.

PROCEDURE OF CUSTOMS UNDER CUSTOMS ACT, 1962

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PROCEDURE OF CUSTOMS UNDER CUSTOMS ACT, 1962

INTRODUCTION:

Customs is an authority or tax collection wing appointed by the Government in every country for controlling and for collecting of tax on the flow of goods into and out of a country. ‘Customs Duty’ refers to the tax imposed on the goods when they are transported across the international borders. Custom Duty is an indirect tax, imposed under the Customs Act formulated in 1962. Following are the types of customs duty in India, 

  • Basic Customs Duty (BCD)
  • Countervailing Duty (CVD)
  • Additional Customs Duty or Special CVD
  • Protective Duty,
  • Anti-dumping Duty

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 law. 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 primary objective behind levying customs duty is to safeguard each nation’s economy, jobs, environment, residents, etc., by regulating the movement of goods in and out of any country. It is also to minimise the smuggling of demerit goods such as cigarettes and alcoholic beverages across borders since these items are usually highly taxed and their tax rates may also vary significantly across borders. The Quantum of Customs duty in India depends upon the provisions of Customs Act, 1962 and Customs Tariff Act, 1975 and related Customs Rules, Notifications, Circulars, case Laws and Annual Union Finance Acts. The Customs Act, 1962 is the principal act 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 India. 

All goods imported into India have to pass through the procedure of customs for proper examination, appraisal, assessment and evaluation. This helps the custom authorities to charge the proper tax and also check the goods against the illegal import. Import and export of goods into and outside a country should undergo a customs clearance process. The importer and exporter of the goods should submit valid documents to clear this process. In this article, we look at some of the major steps and processes in clearing customs in India. Goods are imported in India or exported from India through sea, air or land. Goods can come through post parcels or as baggage with passengers. Procedures naturally vary depending on mode of import or export. Procedures discussed in this are applicable for imports by sea, air or land.

Export customs clearance procedures and formalities in IndiaPROCEDURES FOR IMPORT:

Bill of entry:

Goods imported into the country attract Customs duty and are also required to confirm relevant and corresponding legal requirements. Thus, unless the imported goods are not meant for Customs clearance at the port/airport of arrival such as those intended for transit by the same vessel/aircraft or transshipment to another Customs station or to any place outside India, detailed Customs clearance formalities have to be followed by the importers. In contrast, in terms of Section 52 to 56 of the Customs Act, 1962, the goods mentioned in the IGMor Import Report for transit to any place outside India or meant for transshipment to another Customs station in India are allowed transit without payment of duty. In case of goods meant for transshipment to another Customs station, simple transshipment procedure has to be followed by the carrier and the concerned agencies at the first port/ airport of landing and the Customs clearance formalities have to be complied with by the importer after arrival of the goods at the other Customs station where goods are intended to be delivered to the importer. There could also be cases of transshipment of the goods after unloading to a port outside India. For this purpose, a simple procedure is prescribed and no duty is required to be paid. 

Self-assessment of imported and export goods: 

Section 17 of the Customs Act, 1962 provides that an importer entering any imported goods under section 46 or an exporter entering any export goods under section 50 shall self-assess the duty. Thus, under self-assessment, it is the importer or exporter who will ensure that he declares the correct classification, applicable rate of duty, value, benefit of exemption notifications claimed, if any, etc. in respect of the imported / export goods while presenting Bill of Entry or Shipping Bill. In cases, where the importer or exporter is not able to determine the duty liability or make self assessment for any reason, except in cases where examination is requested by the importer under proviso to Section 46(1), a request shall be made to the proper officer for provisional assessment of duty under Section 18 (1)(a) of the Customs Act, 1962. In such a situation an option is available to the proper officer to resort to provisional assessment of duty by asking the importer / exporter to furnish security as deemed fit for payment of the deficiency, if any, between the duty as may be finally assessed or reassessed, as the case may be, and the duty provisionally assessed.

Examination of Goods:

All imported goods are required to be examined for verification of correctness of description given in the bill of entry. However, a part of the consignment is selected on a random selection basis and is examined. In case the importer does not have complete information with him at the time of import, he may request for examination of the goods before assessing the duty liability or, if the Customs Appraiser/Assistant Commissioner feels the goods are required to be examined before assessment, the goods are examined prior to assessment. The importer has to request for a first check examination at the time of filing the bill of entry or at data entry stage. The reason for seeking First Appraisement is also required to be given. On the original copy of the bill of entry, the Customs Appraiser records the examination order and returns the bill of entry to the importer/CHA with the direction for examination, who is to take it to the import shed for examination of the goods in the shed. Shed Appraiser/Dock examiner examines the goods as per examination order and records his findings. 

After assessment by the appraising group or for cases where examination is carried out before assessment, a bill of entry needs to be presented for registration for examination of imported goods in the import shed. The proper officer of customs examines the goods along with requisite documents. The shipments, found in order are given clearance order by the proper officer of customs in the Import Shed.

Execution of Bonds:

Wherever necessary, for availing duty free assessment or concessional assessment under different schemes and notifications, execution of end use bonds with Bank Guarantee or other surety is required to be furnished. These have to be executed in prescribed forms before the assessing Appraiser.

Payment of duty:

The duty can be paid in the designated banks or through TR-6 challans. Different Custom Houses have authorised different banks for payment of duty. It is necessary to check the name of the bank and the branch before depositing the duty. Bank endorses the payment particulars in challan which is submitted to the Customs.

Amendment of Bill of Entry: 

Bonafide mistakes noticed after submission of documents, may be rectified by way of amendment to the Bill of Entry with the approval of Deputy/Assistant Commissioner. The request for amendment may be submitted with the supporting documents. 

Prior Entry for Bill of Entry:  

For faster clearance of the goods, provision has been made in section 46 of the Act, to allow filing of bills of entry prior to arrival of goods. This bill of entry is valid if a vessel/aircraft carrying the goods arrives within 30 days from the date of presentation of the bill of entry. The importer is to file 5 copies of the bill of entry and the fifth copy is called Advance Noting copy. The importer has to declare that the vessel/aircraft is due within 30 days and they have to present the bill of entry for final noting as soon as the IGM is filed. Advance noting is available to all imports except for into the bond bill of entry and also during the special period.

Bill of Entry for bond/warehousing:

A separate form of Bill of Entry is used for clearance of goods for warehousing. All documents, as are required to be filed with a Bill of Entry for home consumption are also required with the Bill of Entry for Warehousing which is assessed in the same manner and duty payable is determined. However, since duty is not required to be paid at the time of warehousing, the purpose of assessing the duty at this stage is only to secure the duty by way of execution of Bond. The duty is paid at the time of ex-bond clearance of goods for which an Ex-Bond Bill of Entry is filed. In terms of Section 15 of the Customs Act, 1962, the rate of duty applicable to imported goods cleared from a warehouse is the rate in- force on the date of filing of the Ex-Bond Bill of Entry. 

PROCEDURE FOR EXPORTS:

Shipping bill: 

For clearance of export goods, the exporter has to obtain an Importer- Export Code (IEC) number from the DGFT prior to filing of Shipping Bill. Under the EDI System, IEC number is received online by the Customs System from the DGFT. The exporter is also required to register authorized foreign exchange dealer code (through which export proceeds are expected to be realized) and open a current account in the designated bank for credit of Drawback incentive, if any. All the exporters intending to export under the export promotion scheme need to get their licenses etc. registered at the Customs Station. For such registration, original documents are required. 

Waiver of GR form: 

Generally the processing of Shipping Bills requires the production of a GR form that is used to monitor the foreign exchange remittance in respect of the export goods. However, there are few exceptions when the GR form is not required. These exceptions include export of goods valued not more than US $25,000/- and export of gifts valued upto Rs.5 lakhs. 

Arrival of goods to the dock:

The goods brought for the purpose of examination and subsequent ‘let export’ are allowed entry to the Dock on the strength of the checklist and other declarations filed by the exporter in the Service Center. The Port authorities have to endorse the quantity of goods actually received on the reverse of the Checklist.

Customs examination of export goods:

After the receipt of the goods in the dock, the exporter/CHA may contact the Customs Officer designated for the purpose present the check list with the endorsement of Port Authority and other declarations as aforesaid along with all original documents such as, Invoice and Packing list, AR-4, etc. Customs Officer may verify the quantity of the goods actually received and enter into the system and thereafter mark the Electronic Shipping Bill and also hand over all original documents to the Dock Appraiser of the Dock who many assign a Customs Officer for the examination and intimate the officers’ name and the packages to be examined, if any, on the check list and return it to the exporter or his agent. The Customs Officer may inspect/examine the shipment along with the Dock Appraiser. The Customs Officer enters the examination report in the system. He then marks the Electronic Bill along with all original documents and checklist to the Dock Appraiser. If the Dock Appraiser is satisfied that the particulars entered in the system conform to the description given in the original documents and as seen in the physical examination, he may proceed to allow “let export” for the shipment and inform the exporter or his agent.

Drawal of samples:

Where the Appraiser Dock (export) orders for samples to be drawn and tested, the Customs Officer may proceed to draw two samples from the consignment and enter the particulars thereof along with details of the testing agency. There is no separate register for recording dates of samples drawn. Three copies of the test memo are prepared by the Customs Officer and are signed by the Customs Officer and Appraising Officer on behalf of Customs and the exporter or his agent.

Stuffing / loading of goods in containers: 

In case of container cargo the stuffing of containers at Dock is done under Preventive supervision. Further, loading of both containerized and bulk cargo is to be done under Preventive supervision. The Customs Preventive Officer supervising the loading of container and general cargo into the vessel may give “Shipped on Board” endorsement on the Exporters copy of the Shipping Bill.  

Amendments: 

Any correction/amendment in the check list generated after filing of declaration can be made at the Service Centre provided the documents have not yet been submitted in the EDI system and the Shipping Bill number has not been generated. Where corrections are required to be made after the generation of the Shipping Bill number or after the goods have been brought into the Export Dock, the amendments will be carried out in the following manner: 

(i) If the goods have not yet been allowed to “Let Export” the amendments may be permitted by the Assistant / Deputy Commissioner (Exports). 

(ii) Where the “Let Export” order has already been given, amendments may be permitted only by the Additional/Joint Commissioner in charge of Export. 

Drawback claim:  

After actual export of the goods, the Drawback claim is processed through the EDI system by the officers of the Drawback Branch on a first come first served basis. There is no need for filing separate drawback claims. The status of the shipping bills and sanction of DBK claim can be ascertained from the query counter set up at the service center. If any query has been raised or deficiency noticed, the same is shown on the terminal. A print out of the query/deficiency may be obtained by the authorized person of the exporter from the service center. The exporters are required to reply to such queries through the service center. The claim will come in the queue of the EDI system only after reply to queries/deficiencies are entered by the Service Center.

Export General Manifest(EGM):

All the shipping lines/agents need to furnish the Export General Manifests, Shipping Bill wise, to the Customs electronically within 7 days from the date of sailing of the vessel. Apart from lodging the EGM electronically the shipping lines need to continue to file manual EGMs along with the exporter copy of the shipping bills as per the present practice in the export department. The manual EGMs need to be entered in the register at the Export Department and the Shipping lines may obtain acknowledgements indicating the date and time at which the EGMs were received by the Export Department. The above is the general procedure for export under EDI Systems. However special procedures exist for specified schemes, details of which may be obtained from the Public Notice/Standing Orders issued by the respective Commissionerates.

Facility 24×7 Customs Clearance:  

In order to faster Customs clearance of imported and export goods to reduce dwell time and lower the transaction cost, CBE & C, vide Circular No. 19/2014-Customs, dated 31.12.2014 has made facility of 24×7 Customs Clearance for specified imports, namely, goods under ‘facilitated “Bills of Entry and specified exports, namely factory stuffed containers and goods exported under free shipping Bills have made available in 18 sea ports. Similarly, facility of 24×7 Customs clearance for specified imports, namely, goods covered by facilities Bills of Entry and all exports viz. goods covered by all shipping Bills has been extended at 17 air cargo complexes.

Sealing of Export Goods: electronic sealing facility:

Board has laid down a simplified procedure for stuffing and sealing of export goods by introducing self-sealing subject to certain conditions.

CONCLUSION:

In line with Government’s policy “Ease of Doing Business “ the Central Board of Excise and Customs  has taken-up the various measures to facilitate trade and commerce to bring hassle free working environment as well as  reduction of transaction costs of goods and services to make them competitive in the domestic and international market.  The various initiatives taken by the Board are welcome steps and this will reduce the prices of Goods and services in the GST regime. The initiatives for “ease of doing of business certainly will boost the economic growth of the country in the coming days.

 

Written by –Gokul Abimanyu.O.R

Edited By – Aaditya Bhatt Advocate, Chandni Joshi Advocate 

Radio Chip and Competition Law(Competition Act)

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Radio Chip and Competition Law(Competition Act)

Introduction

Most smartphones have chipsets installed in them that provide integrated wireless services, such as Bluetooth, Wi-Fi, and Radio services. However, the telecom service providers and mobile companies disable this feature, due to which we cannot avail radio services on our handsets. This may be because, unlike other apps that charge subscription fee, radio services are available free of cost. Due to which mobile companies cannot charge any commission from them. In Indian context, this move of the mobile companies can raise serious questions from competition law point of view because this ‘concerted practice’ has become a widely followed trend. As a result, neither the pre-existing, nor the new entrants are providing radio services on the handsets, which is ultimately hampering consumer welfare. Additionally, it is creating barriers for radio service providers thereby denying market access to them.Guest Post] Competition Act, 2002: An Overview of Competition Law in India by Prakhar Bhardwaj | Law Notes

Aiming to rectify the damage caused to consumers by restricting access to a free of cost service provider i.e. the radio, the US and the Canadian government insisted the enabling of the radio-chip feature installed in the phones. It is crucial to provide radio services in mobile phones because radio travels way farther than an LTE broadcast. Especially, in emergencies, it makes it much easier to get a signal, and reaching as many people as possible.  Relevantly, it is also free and can be accessed without the use of cellular data and hence consumes lesser battery and provides wider opportunities to consumers.

Anti competitive Practices?

In United States, telecommunication services are governed by the Federal Communications Commission (FCC). Likewise, in India, Telecom regulatory Authority of India (TRAI) along with Department of Telecommunications (DoT) and Ministry of Information and Broadcasting (MIB) regulate telecom and radio services. However, it is absolutely the company’s prerogative, whether to enable the radio chips in handsets or not. Therefore, in this article the author questions the activities of mobile companies in India.  

Almost all handsets in India have radio chips installed in them but the mobile companies opt to disable them due to various reasons such as rise in demand for mobile streaming apps, leading to very low demand for FM services. However, it is also criticised that the mobile companies are intentionally trying to keep FM service providers out of the market and are denying proper market access to them. This act of mobile companies can be adjudged as anti-competitive, by following ways:

  1. Tacit collusion: however there exists no proof of any express agreement between the mobile companies to exclude radio service providers from the market, but it can also be looked at from the concerted action of each individual mobile company. To explain it better, In the case of Interstate circuit v. US (1969), there were two kinds of theatres functioning in the US, First-run theatres and Subsequent-run theatres. The first-run theatres got into an agreement with each individual distributor to impose price restrictions on the subsequent-run theatres in order to drive them out of the market. Subsequently, concerted action among competitors for section 1 can be inferred from evidence that each gave its assent to the same proposal and adhered to it knowing that concreted action was contemplated and invited at least where they stood to suffer financial loss absent unanimous action.

Therefore, even though there was no express agreement between the distributors but it was held that their exists and tacit agreement amongst them as all of them were agreeing making sure that all of them agrees. It was also noted that, all the distributors were acting against their self interest as if anyone of them would not have agreed with the conditions then they would have gained larger market access and subsequently would have earned larger profits. This act was held to be anti-competitive.

Similarly, in the present case, although there exists no evidence of express agreement between mobile companies but they have tacitly agreed to disable radio services from their handsets in order to drive private radio service providers from the market of providing entertainment and tele broadcasting services. It won’t be completely wrong to assume that this act is done to promote other OTT applications, to name a few: Jio Saavan, Spotify, Jio News, which provides similar services to the consumers. This act of mobile companies is anti-competitive as it is denying market access to the radio service providers and is also hampering consumer welfare by barring them from using free radio services. Likewise, they are also acting against their individual self interest because if any one of the mobile company would have allowed radio services on their handsets, their demand would have rose in comparison of others as other manufacturers are not providing the same service. But in the present case, all the major market players in the mobile industry opted for disabling the same and is therefore anti-competitive.

  1. Public welfare: “Amidst the ruins and in the face of an emergency, the radio is often the first medium for survival” says Irina Bokova, Director-General of UNESCO. “It’s durability is an incomparable advantage, often enabling it to resist shocks and re-transmit messages of protection and prevention to as many people as possible, better and faster than other media, saving lives.”

In Indian context, whether it be the super cyclone of Orissa in 1999, or the killer Tsunami, 2004, or the Kosi floods in Bihar in year 200, radios have acted like a lifeline and played a crucial role during various natural disasters. During the Uttarakhand crisis, when all the mobile towers were shattered, the radio headquarters in Delhi started an SMS service for relatives of the victims to pass on plain or voice messages for broadcasting them over radio.

Keeping the safety of public during emergencies, TRAI also recommended DOT to mandate GPS in phones in order to trace exact locations of individuals in need. Similarly, after the Delhi gangrape case, DOT in its report of April, 2016 mandated the Panic button/ Emergency call feature in every smartphone, which automatically calls the police on the multiple tapping of lock button in handsets. Likewise, during natural calamities when mobile towers are also shattered, radios can function without the use of internet and can help in providing necessary news to the people who require urgent help.

Consumer Welfare as the Goal of Competition Policy 

Consumer welfare is generally defined as the maximisation of consumer surplus, which is the part of total surplus given to consumers. This is realised through, ‘direct and explicit economic benefits received by the consumers of a particular product as measured by its price and quality’.

The consumer welfare model argues that the ultimate goal of competition law should be to prevent increases in consumer prices, restriction of output or deterioration of quality due to the exercise of market power by dominant firms. Competition policy generally has as its aim to increase the overall material welfare of society through maintaining rivalry among firms. The ultimate goal is to increase overall economic efficiency while providing consumers with a fair share of this total wealth. While society’s total welfare is usually the ultimate goal of competition policy it is rarely its exclusive goal. Competition policy usually focuses on a specific reconciliation of the overall interest of society with the particular interests of consumers. The difference between competition policies lies in the particular way in which they reconcile these interests. Whether a given competition policy strives to achieve pure economic goals, in particular economic efficiency, or whether it includes non-economic goals, like income distribution, diffusion of economic and political power or fostering business opportunity, as well depends on the economic goals of the political system it is part of. Three approaches are possible. First, competition policy may ignore consumer interests and focus solely on total welfare and economic efficiency. Second, it may recognise the immediate and short-term interests of consumers as the primary aim of competition policy. Third, competition policy might recognise consumer welfare as an essential long-term goal where the immediate interests of consumers are subordinated to the economic welfare of the society as a whole.

Merger Cases 

It is in merger cases that the balancing of efficiencies and anticompetitive effects is the most explicit and therefore the outcome of competition enforcement depends very much on the chosen welfare standard. This has been illustrated by Williamson’s famous trade-off model.The consumer welfare standard is concerned with direct welfare of the purchasers in the relevant output market. While a competition authority operating on the basis of the total welfare standard makes full trade-offs between consumer and producer benefits in merger cases, a competition authority pursuing the consumer welfare standard does not weigh producer benefits against consumer losses. In this sense it favours consumers to producers. The total welfare standard considers transfers from consumers to producers as not being harmful from an efficiency point of view. There are several relevant questions: does the total welfare standard favour producers to the disadvantage of consumers, does the consumer welfare standard have a distributional bias in favour of consumers, and, ultimately, which welfare standard leads to more efficient market performance? 

In other words, does it matter which welfare standard is applied and do they lead to significantly different results in terms of welfare? The following alternative welfare standards imply that the actual outcome of merger decisions depend more on the way a given welfare standard is enforced than on the fact which welfare standard has been chosen as the basis of the competition policy.

Conclusion

The market for mobile phones in India is driven by few major players, namely Xiaomi, Samsung, Vivo & Oppo. Quarter2 results of 2019 shows 52% of the total sales followed by Quarter3 results of 2020 shows that around 50% of the total sales of mobile phones is grabbed by the later 3 companies which also have a radio chip installed in them but would need an external application to run that radio. Here, the companies are using their collective dominance in the market of mobile phones to leverage into the market of telecommunication and thereby fabricating the purpose of radios and providing advantage to OTT platforms.    

Analysis of Video Conferencing (Part 3)

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Analysis of Video Conferencing (Part 3)

47B  Appearances or submissions by video link, audio link or other appropriate means

(1)  The Court or a Judge may, for the purposes of any proceeding, direct or allow a person:

(a)  to appear before the Court or the Judge; or

(b)  to make a submission to the Court or the Judge;

by way of video link, audio link or other appropriate means.

Note:      See also section 47C.

 (2)  The power conferred on the Court or a Judge by subsection (1) may be exercised:

(a)  on the application of a party to the proceedings; or

(b)  on the Court’s or Judge’s own initiative.

(3)  This section applies whether the person appearing or making the submission is in or outside Australia, but does not apply if the person appearing or making the submission is in New Zealand.

Canada

– Check the current status

As per the order issued by the chief justice of Ontario; notwithstanding provisions in the Rules of Civil Procedure and the Family Law Rules, it is not necessary to obtain consent, or a court order, for a hearing to proceed by virtual means.

Guidelines 

The Superior Court of Justice in Ontario has issued guidelines for ‘Guidelines on Access to Hearings During the COVID-19 Pandemic’

The Advocates Society Paperless Trials Manual, the Manual’s focus is on ways of making trials paperless, other aspects of fully electronic trials (e.g. use of real time transcription; witness testimony via videoconference) are beyond the Manual’s scope but should be investigated by interested parties.

United Kingdom

England and Wales https://rm.coe.int/ceeli-institute-the-use-of-video-conferencing-in-courts-by-mr-stephen-/16809f2785 

The legal basis for video conferencing in courts in England and Wales Policing and Crime Act 2017, section 74 (regarding live links) Coronavirus Act 2020, sections 53 – 57; Schedules 25, 26, 27 Makes a range of modifications to courts and tribunal practice to permit and facilitate remote working in circumstances that would usually require physical attendance. Sections 53 to 56 make provision specifically in relation to the operation of courts and tribunals. Sections 53 – 56 provide for an expansion of the use of live links in criminal proceedings and, in relation to civil proceedings, for public participation in proceedings conducted remotely by video or audio. Schedule 25 provides detailed amendments to the Courts Act 2003 to enable the public to see and hear proceedings conducted wholly as audio or video proceedings and to regulate the recording of those proceedings. Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, S.I. No. 350.

Participation by persons outside the United Kingdom

5 (1) A direction under paragraph 2 may be given in respect of a person whether the person is in the United Kingdom or elsewhere.

(2) A statement made on oath by a person outside the United Kingdom and given in evidence through a live link in accordance with a direction under paragraph 2 is to be treated for the purposes of Article 3 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I. 19)) as having been made in the proceedings in which it is given in evidence.

CIVIL JUSTICE IN ENGLAND and WALES PROTOCOL REGARDING REMOTE HEARINGS 

Case Law

Blackfriars Ltd, Re [2020] EWHC 845 (Ch) 

High Courts allowing trial via video conferencing in India

 

S no.StateRules
Allahabadhttp://www.allahabadhighcourt.in/event/event_7403_11-04-2020.pdf 
Andhra Pradeshhttps://districts.ecourts.gov.in/sites/default/files/E-FILING%20AND%20VIDEO%20CONFERENCING%20GUIDELINES%20FOR%20THE%20SUBORDINATE%20COURTS%20IN%20THE%20STATE%20OF%20ANDHRA%20PRADESH.pdf 
Chattisgarhhttps://highcourt.cg.gov.in/rule/2020/vc_rule2020.pdf 
Delhi http://delhihighcourt.nic.in/writereaddata/Upload/PublicNotices/PublicNotice_CQ84SWB5.PDF 
Guwahatihttps://ghconline.gov.in/index.php/notification-dated-18-05-2020-regarding-gauhati-high-court-rules-for-video-conferencing-for-courts/ 
Himachal Pradeshhttps://hphighcourt.nic.in/pdf/VC%20_Guidelines_HP_HC.pdf 
Jharkhandhttps://www.jharkhandhighcourt.nic.in/sites/default/files/FinalRulesVideoCOnferencing_15062020.pdf 
Kerala https://indiankanoon.org/search/?formInput=recording%20evidence%20by%20video%20conferencing+doctypes:kerala 
Madhya Pradesh https://www.indialegallive.com/constitutional-law-news/courts-news/madhya-pradesh-high-court-issued-guidelines-for-video-conferencing-and-e-filing-in-view-of-exigency-caused-by-covid-19/#:~:text=Video%2DConferencing%3A&text=The%20link%20provided%20by%20the,the%20matter%20may%20be%20adjourned. 
Madrashttp://www.hcmadras.tn.nic.in/rules.html 
Manipurhttps://hcmimphal.nic.in/Documents/Guidelines%20for%20email%20filing%20and%20VC%20for%20HC%20and%20DC%20of%20Manipur%20during%20Covid-19.pdf 
Meghalayahttps://www.indialegallive.com/top-news-of-the-day/news/meghalaya-hc-issues-guidelines-e-filling-video-conferencing-covid-19-lockdown2/#:~:text=The%20participants%20shall%20refrain%20from,shall%20intervene%20in%20the%20proceedings. 
Orissahttps://www.orissahighcourt.nic.in/CorrectedNOTICE.pdf 
Patnahttp://patnahighcourt.gov.in/techcorona.aspx 
Rajasthanhttps://hcraj.nic.in/hcraj/hcraj_admin/uploadfile/latestupdates/notification23102060.pdf 
Sikkimhttps://districts.ecourts.gov.in/rules-video-conferencing-court2020 
Telanganahttps://tshc.gov.in/documents/admin_17_2020_10_27_13_24_46.pdf 
Tripurahttps://thc.nic.in/pdfs/video%20conferencing%20rules.pdf 
Uttrakhandhttps://highcourtofuttarakhand.gov.in/upload/contents/File-737.pdf 

 

High Courts not yet Acquainted with the process of video conferencing as on 16-06-2021

S no.State
Bombay
Calcutta
Jammu & Kashmir
Punjab & Haryana
Karnataka

 

Conclusion

In the present day and age where there is in fact an inevitable dependence on technology, there is a need for development of laws in a way so as to enable a more fluent transition to online mode. Recording of evidence through video conferencing, with proper law and procedure in place, will make the process more time and cost efficient. Further, it’ll become easier to record expert evidence. Supreme Court and various High Courts have repeatedly availed the aid of technology whenever the need and its possibility have coincided, hence a clear and elaborate rules and procedure for such processes is the need of the hour.

 

Written by – Prakhar Suryavanshi

Edited By – Aaditya Bhatt Advocate, Chandni Joshi Advocate 

Analysis of Video Conferencing (Part 2)

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Analysis of Video Conferencing (Part 2)

E-courtroom video conferencing rules (Supreme Court)

Chapter-1 

Part (2) Definitions 

(iv) “Court” includes a physical court and a virtual Court or tribunal.

(v) “Court Point” means the courtroom or one or more places where the Court is physically convened, or the place where a Commissioner or an inquiring officer holds proceedings pursuant to the directions of the Court.

(vi) “Court User” means a user participating in court proceedings through video conferencing at a Court Point.

(vii) “Designated Video Conferencing Software” means software provided by the High Court from time to time to conduct video conferencing. 

(viii) “Live Link” means and includes a live television link, audio-video electronic means or other arrangements whereby a witness, while physically absent from the courtroom is nevertheless virtually present in the courtroom by remote communication using technology to give evidence and be cross-examined. 

(ix) “Remote Point” is a place where any person or persons are required to be present or appear through a video link. 

(x) “Remote User” means a user participating in court proceedings through video conferencing at a Remote Point. 

(xi) “Required Person” includes: 

  1. the person whose deposition or statement is required to be recorded; or 
  2. person in whose presence certain proceedings are to be recorded or conducted; or 
  3. an Advocate who intends to examine a witness; or 
  4. any person who is required to make submissions before the Court; or 
  5. any other person who is permitted by the Court to appear through video conferencing

 

Courts to conduct hearings through video calls, says SC | Latest News India - Hindustan Times

 

Chapter 2

Part 4. Minimum Requisites for Video Conferencing 

The following equipment is recommended for conducting proceedings by video conferencing at the Court Point and at the Remote Point: 

(i) Desktop, laptop or smartphone with internet connectivity and printer; 

(ii) Device ensuring uninterrupted power supply;

(iii) Camera; 

(iv) Microphones and speakers; 

(v) Display unit; 

(vi) Document visualizer; 

(vii) Adequate seating arrangements ensuring privacy; 

(viii) Adequate lighting; 

(ix) Availability of a quiet and secure space; and 

(x) Provision of a firewall. 

 

Part 5. Preparatory Arrangements

5.3 The Coordinator at the Remote Point may be any of the following

 

Sub RuleWhere the Advocate or Required Person is at the following Remote Point:-The Remote Point Coordinator shall be:-
5.3.1Overseas An official of an Indian Consulate / the relevant Indian Embassy / the relevant High Commission of India
5.3.9When a Required Person is at any of the Remote Points mentioned in Sub Rules 5.31 to 5.38 and video conferencing facilities are not available at any of these placesThe concerned Court will formally request the District Judge, in whose jurisdiction the Remote Point lies to appoint a Coordinator for and to provide a video conferencing facility from proximate and suitable court premises.

 

Chapter 3 – Procedure for Video Conferencing 

Part 6. Application for Appearance, Evidence and Submission by Video Conferencing

 

Part 11. Judicial remand, framing of charge, examination of accused and Proceedings under Section 164 of the Criminal Procedure, 1973. 

11.1 The Court may, at its discretion, authorize detention of an accused, frame charges in a criminal trial and examine the accused under Section 313 of the Criminal Procedure, 1973 by video conferencing. However, judicial remand in the first instance or police remand shall not be granted through video conferencing.

11.2 The Court may, at its discretion, examine a witness or an accused under Section 164 of the Criminal Procedure, 1973 by video conferencing. 

11.3 Wherever any proceeding is carried out by the Court under these Rules by taking recourse to video conferencing, this shall specifically be mentioned in the order sheet. Furthermore, it shall not be necessary to obtain the physical signature/thumb impression on any document, of any person who is not physically present before the Court

 

Guideline and rules regarding video conferencing in other sectors

 

  1.  Ministry of Corporate Affairs Regulations regarding extraordinary general meeting (EGM), 2020.

In the wake of the COVID-19 pandemic, the Ministry of Corporate Affairs (MCA) has allowed companies to conduct EGMs through video conferencing and other audio-visual means (OAVM). In furtherance of the requirement, the MCA laid down certain guidelines about the conduct of video conferencing and OAVM. 

 

  1. Office of the Controller General of Patents, Design and Trade Marks guide to video conferencing.

This set-up guide provides systemic requirements for carrying out video conferencing. The guide provides minimum requirements such as the need for a Windows operating system, web camera, microphone, speakers, internet speed of 256 kbps, etc. during the video conference. The guide suggests the use of InstaVC Desktop Sharing Extension for conducting video conferencing. Further, the guide provides screen-by-screen details of how the platform can be used by the user.

 

  1. Income Tax Appellate Tribunals (ITAT) Regulations regarding video conferencing, 2012.

The ITAT has passed detailed regulations prescribing the manner in which video conferencing should be conducted. As per the Regulations, the hearing of appeals has to be notified by the President of the tribunal from time to time. These regulations state that the hearing would proceed in the same manner as in a regular tribunal. Apart from hearing of appeals, video conferencing can also utilised for recording of evidence. Pronouncement of orders can be done via video conferencing and once the order is signed, it has to be uploaded on the website as is usually done in a regular hearing 

 

International Standards ( Regulations/Rules/Acts and Judgements)

 

India is in accession with United States on the Convention of  the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Evidence Convention) provides a framework that may be used to facilitate the taking of evidence via video conference in countries that have acceded to that Convention

 

The Evidence Convention establishes methods of co-operation for the taking of evidence abroad in civil or commercial matters, between States Parties. The Convention provides an effective means of overcoming the differences between civil law and common law systems with respect to the taking of evidence, via (i) Letters of Request, and (ii) diplomatic or consular agents and Commissioners

 

  1. UN Human Rights Council, in a resolution adopted by consensus in July 2020:

 

“Urges States to ensure that judiciaries have the necessary resources and capacity to help to maintain functionality, accountability, transparency and integrity, and to ensure due process and the continuity of judicial activities, including efficient access to justice consistent with the right to a fair trial and other fundamental rights and freedoms, during extraordinary situations, including the COVID-19 pandemic and other crisis situations;

 

Encourages States to make available to judiciaries current information and communications technology and innovative online solutions, enabling digital connectivity, to help to ensure access to justice and respect for the right to a fair trial and other procedural rights, including in extraordinary situations, such as the COVID19 pandemic and other crisis situations, and to ensure that judicial and any other relevant national authorities are able to elaborate the necessary procedural framework and technical solutions to this end;”

 

  1. The European Court of Human Rights 

 

The European Court of Human Rights has held that participation by videoconferencing may generally be acceptable in criminal appellate hearings and hearings in civil matters, if certain conditions and safeguards are in place (with a secure means of confidential communication between the affected person and his or her lawyer being particularly important in this regard, as will be described in a later section of this paper).

 

  1. International Covenant on Civil and Political Rights (ICCPR)

ICCPR, article 14(1) provides for the right to a “public hearing” in all determinations of criminal charges or of a person’s “rights and obligations in a suit at law.”

 

United States

 

Under the CARES Act (pdf), this finding allows chief district judges, under certain circumstances and with the consent of the defendant, to temporarily authorize the use of video or telephone conferencing for certain criminal proceedings during the COVID-19 national emergency.

 

Respective Court Guidelines

 

Despite the early developments, many states within the US still allow for judicial discretion in deciding whether a video conference is required. The debate in the US has evolved to include discussions on the best practices in terms of electronic usage of documents while looking into video conferences. For instance, automation is suggested to allow for judicial authorisation of documents. To address privacy concerns, certain courts like Florida, Pennsylvania, and Michigan are using automated redaction software facilities.These software options work in tandem with e-filing, case management, and document management software. Certain courts in the state of Michigan are advanced in their handling of the video conferences and allow for live streaming of the same. As regards the platforms used, courts are amenable to using networks like Zoom. Certain other courts specify other applications. For instance, in certain courts in the state of Montana, applications are specified to be downloaded by the participants of the video conferences. 


Section 15002(b)(1) of the CARES Act authorizes the federal courts, upon a proper finding by the Judicial Conference of the United States that the national COVID-19 emergency “will materially affect the functioning of either the Federal courts generally or a particular district court of the United States,” to conduct video teleconferencing, or telephone conferencing if video conferencing is not reasonably available, in a host of criminal proceedings, including detention hearings, initial appearances, preliminary hearings, waivers of indictment, arraignments, and misdemeanor pleas and sentences. The Act also contains a separate subsection, Sec. 15002(b)(2), which authorizes the federal courts, upon a proper finding of emergency by the Judicial Conference, a specific finding by the chief judge of the district court that pleas or sentencings “cannot be conducted in person without seriously jeopardizing public health and safety,” and a specific finding by the assigned district court judge that there are “specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice,” to conduct felony plea and sentencing hearings by video conference, or by telephonic conference if video proceedings are not reasonably available.

 

Australia – Overseas video conferencing rules

 

If you are seeking to examine a witness who is outside Australia via videoconference, you must first consider the relevant legislation and requirements in Australia, and the relevant legislation and laws in place in the country where the witness is to give his or her evidence.

Complementary legislation has been enacted in Australia and New Zealand[6] which enables courts in each country to take evidence via video conference from a witness in the other country. In addition, the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Evidence Convention) provides a framework that may be used to facilitate the taking of evidence via video conference in countries that have acceded to that Convention. However, prohibitions or restrictions may exist in some of these countries. Parties should also be familiar with the Court’s Overseas Service and Evidence Practice Note (GPN-EXPT) which provides guidance on evidence taken abroad generally.

1.12 If there is any doubt about this, information can be obtained by contacting the Private International Law Section of the Attorney-General’s Department.

Australia lower courts usage of video conferencing rules

 

In appropriate cases and subject to any conditions or procedures that must or may apply, the Court may direct or allow for testimony being given and appearances and submissions being made to the Court by video (see ss 47A to 47F of the Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) for video link in Australia; see also s 47 to 54 of the Trans–Tasman Proceedings Act 2010 (Cth) (“TTPA”) for video link from New Zealand.

 

The Court may make a direction or order in relation to taking evidence or receiving a submission by video link as it considers appropriate[2] at any time on the application of a party or on its own initiative. Such a direction or order can be made in open court or in Chambers.[3] For any hearing by video link from New Zealand, provisions of Division 34.4 of the Federal Court Rules 2011 (Cth) (“Federal Court Rules“) apply.

Relevant Provisions from Federal Court of Australia Act 1976 No. 156, 1976

47  Oral, video link, telephone and affidavit evidence

Civil proceedings other than trials of causes

(1)  In a civil proceeding, not being the trial of a cause, testimony shall be given by affidavit or as otherwise directed or allowed by the Court or a Judge.

Note:      For testimony etc. by video link, audio link or other appropriate means, see sections 47A to 47F.

Civil trials of causes

(2)  At the trial of a cause, proof may be given by affidavit of the service of a document in or incidental to the proceedings in the cause or of the signature of a party to the cause or of his or her solicitor to such a document.

(3)  The Court or a Judge may at any time, for sufficient reason and on such conditions (if any) as the Court or Judge thinks necessary in the interests of justice, direct or allow proof by affidavit at the trial of a cause to such extent as the Court or Judge thinks fit.

(4)  Notwithstanding any order under subsection (3), if a party to a cause desires in good faith that the maker of an affidavit (other than an affidavit referred to in subsection (2)) proposed to be used in the cause be cross‑examined with respect to the matters in the affidavit, the affidavit may not be used in the cause unless that person appears as a witness for such cross‑examination or the Court, in its discretion, permits the affidavit to be used without the person so appearing.

(5)  If the parties to a cause so agree and the Court does not otherwise order, testimony at the trial of the cause may be given by affidavit.

(6)  Subject to this section and section 47A and without prejudice to any other law that would, if this subsection had not been enacted, expressly permit any testimony to be otherwise given, testimony at the trial of causes shall be given orally in court.

Note:      For testimony etc. by video link, audio link or other appropriate means, see sections 47A to 47F.

(7)  Subsections (1) to (6) do not apply in relation to criminal proceedings.

Criminal proceedings

(8)  Testimony in criminal proceedings must be given orally unless:

(a)  the testimony is given in another form:

(i)  agreed to between the parties; and

(ii)  to which the Court does not object; or

(b)  the testimony is given in accordance with this or any other Act, or with any law applying under subsection 68(1) of the Judiciary Act 1903 in relation to the proceedings.

Note:      For testimony etc. by video link, audio link or other appropriate means, see sections 47A to 47F.

47A  Testimony by video link, audio link or other appropriate means

(1)  The Court or a Judge may, for the purposes of any proceeding, direct or allow testimony to be given by video link, audio link or other appropriate means.

Note:      See also section 47C.

(2)  The testimony must be given on oath or affirmation unless:

 (a)  the person giving the testimony is in a foreign country; and

(b)  either:

(i)  the law in force in that country does not permit the person to give testimony on oath or affirmation for the purposes of the proceeding; or

(ii)  the law in force in that country would make it inconvenient for the person to give testimony on oath or affirmation for the purposes of the proceeding; and

(c)  the Court or the Judge is satisfied that it is appropriate for the testimony to be given otherwise than on oath or affirmation.

(3)  If the testimony is given:

(a)  otherwise than on oath or affirmation; and

 (b)  in proceedings where there is not a jury;

the Court or the Judge is to give the testimony such weight as the Court or the Judge thinks fit in the circumstances.

Note:      In proceedings where there is a jury, the Judge may warn the jury about the testimony (see section 165 of the Evidence Act 1995).

(4)  The power conferred on the Court or a Judge by subsection (1) may be exercised:

 (a)  on the application of a party to the proceedings; or

(b)  on the Court’s or Judge’s own initiative.

(5)  This section applies whether the person giving testimony is in or outside Australia, but does not apply if the person giving testimony is in New Zealand.

Note:      See Part 6 of the Trans‑Tasman Proceedings Act 2010.

 

Written by – Prakhar Suryavanshi

Edited By – Aaditya Bhatt Advocate, Chandni Joshi Advocate 

Analysis of Video Conferencing

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Analysis of Video Conferencing

INTRODUCTION

Videoconferencing is “the holding of a conference among people at remote locations by means of transmitted audio and video signals.”

Through these conferences, individuals meet one another in a real-time virtual manner as if they “were in the same room” without the hassle and the expense of traveling.

While slight limitations remain “depending on the quality of the equipment” employed by courts, the general facial and physical expressions communicated by witnesses are rarely inhibited by the use of such technology.

Videoconferencing systems contain four key components: a 

  1. transmission system, 
  2. camera/microphone, 
  3. CODEC (encoder/decoder), and 
  4. compression/decompression hardware and software

More advanced systems commonly used in courtrooms also include remote controls with “zooming, panning, and tilting functions,” and varying screen options, such as “multiple split-window displays.” Split-window displays present images of several individuals, physically separated by distance, together on one screen. One of the newest and most innovative forms of VCT uses cameras that track a specific type of badge. While wearing these unique badges, courtroom participants are followed by cameras as they move, thus allowing a more dynamic interaction to take place. As with most technology, each feature is “expected to become more refined and less expensive over time.”

Courts to conduct hearings through video calls, says SC | Latest News India - Hindustan Times

Reason due to which video conferencing can be granted as a method for criminal proceedings

  1. Threat to life
  2. Unknown expenses
  3. Delay in procedure (time constraint)
  4. Due to job creating impossibility 
  5. Health constraints
  6. Family issues

 

Indian Provisions Related to video conferencing

Section 273 CrPC

  1. Evidence to be taken in presence of accused.—Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.

[Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.]

Explanation.—In this section, “accused” includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.

 

Gujarat STATE AMENDMENTS- [Vide Guj. Act 31 of 2017, S. 2, dt. 8-9-2017]

Gujarat.—In Section 273, after the words “in the presence of his pleader”, the words “or, as the case may be, through the medium of Electronic Video Linkage when the court on its own motion or on an application so directs in the interests of justice” shall be added. 

 

Section 285(3) CrPC

(3) If the witness is in a country or place outside India and arrangements have been made by the Central Government with the Government of such country or place for taking the evidence of witnesses in relation to criminal matters, the commission shall be issued in such form, directed to such Court or officer, and sent to such authority for transmission as the Central Government may, by notification, prescribed in this behalf.

 

Section 3 Indian Evidence Act (Interpretation Clause)

“Evidence.”— “Evidence” means and includes–

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2)6[all documents including electronic records produced for the inspection of the Court;] such documents are called documentary evidence.

Case Laws In which video conferencing was allowed

The fast changing speed of technology in the modern 21st century, requires us to keep pace with it. Not only do our needs change but our ability to adapt to these requirements matter a lot. At this stage the words of Justice Bhagwati in the case of National Textile Workers’ Union v. P.R. Ramakrishnan, at page 256, need to be set out. They are:

“We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree. It will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the more adapting itself to the fast changing society and not lag behind.”

The Salem Advocate Bar Association, Tamil Nadu v. Union of India was one of the first cases that broadly interpreted the provisions of the Civil Procedure Code, 1908 (C.P.C) and allowed for the use of electronic media during the evidence stage. The Supreme Court while interpreting order 18 of the Civil Procedure Code ‘Hearing of the suit and Examination of witnesses’, held that the word mechanically indicates that evidence can be recorded with the help of electronic media including audio or audio-visual apparatus.

Recently in another civil proceedings, in the case of Krishna Veni Nagam vs. Harish Nagam MANU/SC/0273/2017, the court held that it may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. The court in para 14 stated;

“One cannot ignore the problem faced by a husband if proceedings are transferred on account of genuine difficulties faced by the wife. The husband may find it difficult to contest proceedings at a place which is convenient to the wife. Thus, transfer is not always a solution acceptable to both the parties. It may be appropriate that available technology of video conferencing is used where both the parties have equal difficulty and there is no place which is convenient to both the parties. We understand that in every district in the country video conferencing is now available, In any case, wherever such facility is available, it ought to be fully utilized and all the High Courts ought to issue appropriate administrative instructions to regulate the use of video conferencing for certain category of cases. Matrimonial cases where one of the parties resides outside court’s jurisdiction is one of such categories. Wherever one or both the parties make a request for use of video conference, proceedings may be conducted on video conferencing, obviating the needs of the party to appear in person. In several cases, this Court has directed recording of evidence by video conferencing.”

This subject matter has been previously dealt with by the Indian Courts briefly in terms of criminal trials as well. Below is the summary of their holdings and ratio relevant to the case at hand. 

The interpretation of the term Physical Presence as prescribed in Section 273 of the Code of Criminal Procedure, 1973 has been liberalised through consecutive supreme court judgments. 

The most landmark holding on this subject matter has been by the Supreme Court in the year 2003 in the case of State of Maharashtra v. Dr. Prafull B. Mehta, 2003 4 SCC 601. Where the issue of validity of video conferencing was challenged and upheld. It was held the recording of such evidence would be as per ‘procedure established by law’.  The court held that Section 273 contemplates constructive presence. This shows that actual physical presence is not a must. This indicates that the term “presence”, as used in this section, is not used in the sense of actual physical presence. Further the court held that Further, evidence can be both oral and documentary and electronic records can be produced. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video-conferencing. The court in this judgment clarified that adopting such a procedure may not be possible if the witness is out of India and not willing to give evidence.  

The court reaffirmed this judgment and the permissibility of recording of evidence by way of video conferencing vis-a-vis Section 273 Cr.P.C in the case of in Sakshi and Ors. vs. Union of India, AIR 2004 SC 3566

In the case of Kalyan Chandra Sarkar v. Rajesh Ranjan and Ors; AIR 2005 SC 972 the court acknowledged the possibility of video conferencing trial and stated in para 43

“It is true that in a normal trial the Criminal Procedure Code requires the accused to be present at the trial but in the peculiar circumstances of this case a procedure will have have to be evolved, which will not be contrary to the rights given to an accused under the Criminal Procedure Code but at the same time protect the administration of justice.”

 

Safeguards provided by multiple Courts

Indian Courts have also provided the need for safeguard to be in place for such virtual video conferencing proceedings. 

In 2003, the high court of Karnataka provided safeguards for Audio-Video Link in light of Civil Procedure Code amendments. 

“10. In the light of these two judgments and in the light of the amendment to CPC, the observation of the learned trial Judge requires my interference. At the same time this Court is of the view that sufficient safeguards have to be provided for the purpose of recording evidence through Audio-Video I Link. The safeguards are :

  1. Before a witness is examined in terms of the Audio-Video Link, witness is to file an affidavit or an undertaking duly verified before a notary or a Judge that the person who is shown as the witness is the same person as who is going to depose on the screen. A copy is to be made available to the other side. (Identification affidavit).
  2. The person who examines the witness on the screen is also to file an affidavit/undertaking before examining the witness with a copy to the other side with regard to identification.
  3. The witness has to be examined during working hours of Indian Courts. Oath is to be administered through the media.
  4. The witness should not plead any inconvenience on account of the time difference between India and USA.
  5. Before examination of the witness, a set of plaint, written statement and other documents must be sent to the witness so that the witness has acquaintance with the documents and an acknowledgement is to be filed before the Court in this regard.
  6. Learned Judge is to record such remarks as is material regarding the demur of the witness while on the screen.
  7. Learned Judge must note the objections raised during recording of witness and to decide the same at the time of arguments.
  8. After recording the evidence, the same is to be sent to the witness and his signature is to be obtained in the presence of a Notary Public and thereafter it forms part of the record of the suit proceedings.
  9. The visual is to be recorded and the record would be at both ends. The witness also is to be alone at the time of visual conference and notary is to certificate to this effect.
  10. The learned Judge may also impose such other conditions as are necessary in a given set of facts.
  11. The expenses and the arrangements are to be borne by the applicant who wants this facility.”

In the case of State of Maharashtra v. Dr. Prafull B. Mehta, 2003 4 SCC 601, the court stated that;

“an officer would have to be deputed, either from India or from the Consulate/Embassy in the country where the evidence is being recorded who would remain present when the evidence is being recorded and who will ensure that there is no other person in the room where the witness is sitting whilst the evidence is being recorded. That officer will ensure that the witness is not coached/tutored/ prompted.’

The Calcutta High Courts in the case of Amitabh Bagchi v. Ena Bagchi, AIR 2005 Cal. 11, provided elaborative requirements of safeguards necessary for proceeding matters on virtual platforms. The court in para 10 stated 

“10. In addition to the above I fully agree with Supreme Court and Karnataka High Court at least to such extent that if the Law Courts do not permit technology development in the Court proceedings it would be bagging behind compared to other sectors. Technology is definitely a tool. But the following safe guards are to be taken for purpose of recording evidence through Audio-Video Link : 

(1) Before action of the witness under Audio-Video Link starts the witness will have to file an affidavit or an undertaking duly verified before a Judge or a Magistrate or a Notary that the person who is shown as the witness is the same person as who is going to depose on the screen with a copy of such identification affidavit to the other side. 

(2) The person who wishes to examine the witness on the screen will also file an affidavit or an undertaking in the similar manner before examining the witness with a copy of the other side with regard to identification before hand. 

(3) As soon as identification part is complete, oath will be administered through the media as per the Oaths Act, 1969 of India. 

(4) The witness will be examined during working hours of Indian Courts. Plea of any inconvenience on account of time difference between India and other country will not be allowed. 

(5) The witness action, as far as practicable, be proceeded without any interruption without granting unnecessary adjournments. However, discretion of the Court or the Commissioner will be respected. 

(6) Witness includes parties to the proceedings. 

(7) In case of non-party witness, a set of plaint, written statement and/or other papers relating to proceeding and disclosed documents should be sent to the witness for his acquaintance and an acknowledgement in this regard will be filed before the Court. 

(8) Court or Commissioner must record any remark as is material regarding the demur of the witness while on the screen and shall note the objections raised during recording of witness either manually or mechanically. 

(9) Depositions of the witness either in the question answer form or in the narrative form will have to sign as early as possible before a Magistrate or Notary Public and thereafter it will form part of the record of the proceedings. 

(10) Mode of digital signature, if can be adopted in this process, such signature will be obtained immediately after day’s deposition. 

(11) The visual is to be recorded at both the ends. The witness alone can be present at the time of video conference, Magistrate and Notary is to certify to this effect.

(12) In case of perjury Court will be able to take cognizance not only about the witness gave evidence but who induced to give such evidence. 

(13) The expenses and the arrangements are to be borne by the applicant who wants to this facility. 

(14) Court is empowered to put condition/s necessary for the purpose.”

In the current case at hand, the petitioner is both willing to cooperate and seek presence before the courts. Certain factors as briefly discussed do not allow him to travel to India from his place of stay in order to present himself before this court. Therefore the court must in the interest of justice provide the petitioner the right to present himself in court virtually

 

Supreme Court and High Court Guidelines

Below is the relevant portion of the guidelines including necessary definitions, minimum requisites of video conferencing, preparatory arrangements (for overseas and remote point). 

The video conferencing guidelines provided by Gujarat High Court and Delhi high court are in the lines of the guidelines provided by Hon’ble Supreme court of India. 

 

Written by – Prakhar Suryavanshi

Edited By – Aaditya Bhatt Advocate, Chandni Joshi Advocate 

Electricity Act,2003: Critical Analysis

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Electricity Act,2003: Critical Analysis

Introduction

The technology revolution has brought electricity to the forefront. To regulate the generation, supply and use of electricity, the first legislation was the Electricity Act of 1887 which provided for the protection of person and property, from injury and risks, attendant to the supply and use of electricity for lighting and other purposes. This Act was repealed and replaced by the Indian Electricity Act, 1903 (3 of 1903). Many practical, electro technical and commercial difficulties were realised during the period of 1903 to 1909. To deal with these difficulties a bill viz. The Indian Electricity Bill was introduced in the Central legislation to amend the law relating to the supply and use of electrical energy.

Power shortage may very well be one of the major bottlenecks threatening the economic growth of India. Thus power, and particularly electricity, assumes top priority in maintaining a stable growth rate and ensuring energy security. 

For the purpose of distancing state governments from tariff determination, The Electricity Regulatory Commissions Act was enacted in 1998. So as to reform the electricity sector further by participation of the private sector and to bring in competition, the Electricity Act was enacted in 2003. 

Electricity Act 2020: Analysis and Perspectives - The Daily Guardian

Role and purpose of  State authority

The Central government, on its part, has formed a central authority with responsibility to develop a national power policy and coordinate activities of various agencies or state electricity boards. The authority advises the Department of Power on technical, financial and economic matters. The country has been demarcated into five regions – North, West, South, East and North-east. Regional electricity boards were set up in 1964-65 in each of these regions.

  1. The Northern Region covers Haryana, Himachal Pradesh, Jammu & Kashmir, Punjab, Rajasthan, Uttar Pradesh, Chandigarh and Delhi.
  2. Western Region covers Gujarat, Madhya Pradesh, Maharashtra, Goa, Daman and Diu and Dadra and Nagar Haveli.
  3.  The Southern Region covers Andhra Pradesh, Karnataka, Kerala, Tamil Nadu and Pondicherry.
  4. Eastern Region covers Bihar, Orissa, West Bengal and Sikkim.
  5. North-Eastern Region covers Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura.

These boards are merely advisory bodies. They review the progress of power development schemes in the region; plan and ensure integrated operation of all the power systems in the region; prepare a coordinated overhaul and maintenance programme for the generating plants in the region; determine the operation schedules to be followed by all the plants in the region; determine the amount of surplus power available for exchange between the states; and determine tariff struc­tures governing exchange of power within the region. No single state can possibly solve the problem of energy deficiency and hence has arisen the need for the formation of regional power grids.

Development and growth

Significant progress has been made in the expansion of transmission and distribution facilities in the country. Fairly well interconnected systems are presently available in all regions of the country except the north-eastern region. Inter-state and inter-regional transmission lines would form part of the national power grid. It will promote integrated operation and transfer of power from one system to another with the ultimate objective of ensuring optimum utilisation of resources.

Every successive Five-Year Plan has added to the energy capability of the nation and the national and regional power grids have resolved the power shortage crisis in underdeveloped states. Moreover it has helped in rapid and uniform industrial development of the country. The states feel reassured of their energy requirements and are inviting global investments on the basis of this infrastructural facility of the grids.

The functioning of electricity before and after the introduction of the Privatisation sector in the Power sector.

ProcessThenNow
GenerationSlow growth in capacity addition. Difficulties in coal availability.Phenomenal growth in capacity addition. Surplus electricity. Renewables have grown. Declining PLF’s(Plant load factor) however.
TransmissionMonopoly.

 Regional grids 

Competition. National grid implemented
DistributionAlarming losses Restructuring. Losses minimised

 

Regulatory framework

The Constitution of India places electricity on the concurrent list, that is, both the centre and state legislatures are authorised to enact law and make policies to promote the electricity sector.

The Electricity Act 2003 (Electricity Act) framed by the central legislature covers major issues involving generation, distribution, transmission and trading of power.

The main regulatory authorities that regulate the tariff of generating companies are CERC and SERC.

CERC is responsible for:

  • Determining and regulating tariffs for generating companies owned or controlled by the central government.
  • Generating companies other than those owned or controlled by the central government, if those companies have entered into a composite scheme for generation and sale of electricity in more than one state.

SERCs determine and regulate tariffs for intra-state generation, supply, transmission and wheeling of electricity in the relevant states. The Electricity Act governs the following, among other things:

  • Generation. Licensing requirements were removed for the generation of electricity (except for permission for certain hydro projects) (Electricity Act). Anyone can therefore develop a generating station in accordance with the applicable Indian laws. Generating companies are now permitted to sell electricity to any trading and distribution licensee and to consumers directly (subject to getting open access approvals).
  • Transmission. Transmission is a regulated activity that requires a licence from the appropriate regulatory commission (CERC or SERC), unless exempted in accordance with the Electricity Act or if deemed a licensee under the Electricity Act. The Central Government must designate one government company as the central transmission utility (CTU), which would be deemed a transmission licensee (Electricity Act). Similarly, each state government designates one government company as a state transmission utility (STU), which would also be deemed as a transmission licensee. CERC and SERC are the regulators and licensors for anyone seeking to undertake transmission activities. CTUs are prohibited from generating electricity or trading in electricity (Section 38, Electricity Act). The prohibition on STUs, however, is only for engaging in trading in electricity. Transmission licensees can also engage in any other business in addition to transmission (except trading), provided prior notice is given to the appropriate regulatory commission (Section 41, Electricity Act).
  • Trading. Trading of electricity is a licensed activity, which is defined as the purchase of electricity for resale to any person (Electricity Act), which can involve either:
    • wholesale supply (that is, purchasing power from generators and selling to the distribution licensees); or
    • retail supply (that is, purchasing from generators or distribution licensees for sale to end consumers).

 

  • The regulatory authorities responsible for granting a trading licence are CERC (if the trading is proposed to be inter-state) and SERC (if the trading is proposed to be intra-state). A trading licensee must keep the accounts of the trading business separate from any other business carried out by it.
  • Distribution and retail supply. The Electricity Act does not make any distinction between distribution and retail supply of electricity. Distribution is a licensed activity and distribution licensees are allowed to undertake trading without any separate licence. A distribution licensee can engage in any other business with prior notice to the appropriate commission (Section 51, Electricity Act).

 

   Regulatory authorities

 Companies involved in the four main functions of Electricity 

 

  • Generation: The main companies involved in electricity generation are the National Thermal Power Corporation, National Hydro Power Corporation, Damodar Valley Corporation, GMR Energy, Torrent Power, Essar Power, Tata Power, Reliance Power, Adani Power, Lanco Power and Jaypee Power Ventures.

  • Transmission: The main companies involved in transmission are the Power Grid Corporation of India (CTU), STUs (such as Delhi Transco), Powerlinks Transmission Pvt, Kalpataru Power Transmission, Sterlite Technologies and Isolux Infrastructures.

  • Distribution and supply: The main distribution and supply companies include Tata Power, BSES Rajdhani Power and BSES Yamuna Power.

 

Insolvency under power sector

The Insolvency and Bankruptcy Code 2016 (IBC) consolidated the law in relation to insolvency and reorganisation of (among others) companies. The IBC also applies to the insolvency framework with respect to the electricity sector.

 

Unlike other infrastructure sectors such as highways, airports, metro railways etc., where the revenue collection risk is dispersed amongst a multitude of users, in the power generation sector, the entire offtake and revenue risk is concentrated on single buyers that are state-owned monopolies.

 

IBC, however, is prescriptive in nature and mandates a certain course of action without making any distinction between sectors or indeed the causes leading to the financial situation. If corporate insolvency resolution process under Chapter II of Part II of the IBC is initiated against a company or the company initiates voluntary liquidation proceedings under the IBC, the most desirable outcome is that the debts of the creditors are satisfied and there is a change in the management of the company so that after resolution, the company does not go back into the hands of the promoters or directors who have led to its downfall in the first place.

 

Given the sectoral inefficiencies that can directly be attributed to the state, and are responsible for the sectoral stress in private power production, there is an urgent need for creating a special dispensation for the power sector within the IBC framework.In light of this, it would seem that applying a purely commercial framework for resolving stress in the power sector seems inequitable at the very least and, in fact, presents a compelling argument as to why there should be reconsideration on the blanket applicability of the IBC on the power sector.

 

In this context, it also relevant to note that, in addition to IBC, there are other pieces of legislation that are perhaps more suited to this sector such as the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 which enables lenders to enforce the security interest put forward by the borrowers in order to recover their loan amounts, without necessarily derailing the management and essentially bringing the entire company to the ground. This also provides a chance to the company to revive itself, base the remaining assets and continue its business operations as a going concern, which, in the context of the power sector, would be in the best interest of the economy of the consumers.

Conclusion

There is little doubt that the power sector has come a long way in the last two decades. The power sector has opened doors to private participation, increasing competition and transparency in the process and greater certainties in the policy-level interventions today. While the power demand is expected to slowly limp back to high-single digits in tandem with GDP growth, several overarching fundamental trends are expected to drive the sector transformation in 2021.

The sector has grown and developed itself in several segments and with the introduction of Privatisation in the sector, it has changed drastically and in an unimaginable way. While the sector has been undergoing an overhaul over the last few years, the coronavirus pandemic underscored the need for accelerated technological upgradation. Going forward, the focus on implementation of smart technologies like an evolved grid system, smart metering, digital asset management will help transform the seemingly traditional, manpower-heavy sector into a smarter, more efficient power system with each element in the value chain re-imagining their processes and streamlining infrastructure. 

Author: Pooja Shukla

Editor: Adv. Aditya Bhatt & Adv. Chandni Joshi

Notification of an Act in the Official Gazette- A Prerequisite

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Notification of an Act in the Official Gazette- A Prerequisite

 

Introduction

 

Notification in the legal terminology refers to a publication in the official gazette, the legal newspaper of a country that publishes the text of new laws, decrees, regulations, treaties, legal notices and court decisions. Most of the acts contain a clause that necessitates its notification in the official gazette by an organ of the government without which, the act cannot come into force. The following article aims to scrutinise the clause, its constitutional validity and the consequences and possible course of action in the event of the failure to notify such an act.

It also looks at section 243 of the IBC, a classic instance of the same and analyses its possible aftermath.

Government Work Suspension on December 26 | Official Gazette

 

Section 5 of the General Clauses Act 

 

Section 5 of the General Clauses Act states that 

  1. Where a central act is not expressed to come into operation of a particular day, it shall come into force on the day it receives the assent of the 
    1. Governor General in the case of an act made before the commencement of the constitution. 
    2. President in the case of an act before the act of the parliament.
  2. Unless contrary expressed, an act would come into operation immediately on the expiration of the day preceding its commencement.

Section 5 is only applicable when the act, in any of its provisions, does not expressly provide for a date of commencement. The words ‘unless the contrary is expressed’ in section 5(3) simply mean that only when such an express provision is not stated will the act come into force on the date it received presidential assent. In such cases, the act is said to be enacted on the night immediately before it receives the assent of the president.

 

Constitutional Validity of Delegating Legislative Functions

 

The practice of upholding the constitutional validity of provisions delegating legislative functions dates back to Privy Council Decisions. Post independence, in the case of Re Delhi Laws Act (1951), The judges unanimously accepted these decisions, permitting conditional legislation by the legislature to an outside agency.

As held by a ratio of 3:2 in the case of AK Roy, provisions necessitating the publication of such an act in the official gazette is neither contradictory to, nor ultra vires to the constitution of India. Such provisions merely regulate  the manner in which the act or provisions are brought into force. There is no harm in the constitutional body itself appointing a specific date on which the act comes into force. The law making agency does not lose its power by empowering or conferring upon another organ of the State such as the executive to bring a legislation into force. 

 

Whether publication in the gazette is mandatory?

 

Acts containing a provision empowering the state government to appoint a date to notify the same in the official gazette cannot come into force unless the same is complied with. Further, as long as the acts do not contemplate different dates of its commencement, the obvious intention of the legislature is to let the State Government appoint the date of the same. This principle is not unique to India; It can be seen in the legal practices of England as well as France where ‘promulgation’ or reasonably and publicly enacting an act to make it known to the public is an important aspect of enforcing an act. Similarly, it was also held in Atar Singh v. State of Allahabad that though the Arms Act was passed by the parliament and received the assent of the president, it did not become a law until its notification was issued and published in the official gazette. This stance was reiterated while deciding the date of enforcement of the Arbitration and Conciliation Act, Karnataka Industrial Areas Development Act and Nagaland Work-Charged and Casual Employees Regulation Act, 2001. 

Therefore, publication of such notifications in the official gazette is mandatory and such acts come into force only from such date of notification in the gazette.

Whether a writ of Mandamus directing the government to notify a statute can be issued?

It was held in the case of A.K. Roy that such provisions leave the question of the time within which such provisions should be brought into force to the unfettered judgement of the body entrusted to do so and hence, it was not for the court to cue the Central Government to act in a particular manner upon a matter that was left entirely to its discretion. An order of mandamus on the ground that the government has failed to act would create an anomaly in the sense that it would be equally permissible that the time was not yet ripe for notifying such an act. Unless the parliament lays down an objective standard or test directing the central government to act in a prescribed time limit, it is impossible for the judiciary to examine the cause of inaction.

However, in the case of Aeltemesh Rein v. Union of India, it was held that while it may not be open to the court to issue a writ of mandamus compelling the central government to bring a statutory provision into force, issuing a mandamus directing the government to consider whether the time for bringing an act into force is not hinged upon. Considering the fact that more than two decades had passed since the act had received president’s assent, a writ of mandamus was issued to the Central Government to consider within a period of six months whether the act should be brought into force or not. 

Be that as it may, if the executive intent behind delaying the notification of such an act is based on bonafide considerations and delays, neither a mandamus to bring the act into force nor a mandamus to prescribe a time limit for the same can be issued. 

Notification of Insolvency and Bankruptcy Code

Section 243 of the Insolvency and Bankruptcy code in its clause 1 states that the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920 are hereby repealed. Its sub-section 2 begins with a non-obstante clause, stating that all proceedings pending under the two acts immediately before the commencement of the shall continue to be governed by those acts. Similarly, any order, rule, notification, regulation, appointment, conveyance, mortgage, deed, document or agreement made, fee directed, resolution passed, direction given, proceeding taken, instrument executed or issued, or thing done under or in pursuance of any repealed enactment shall, if in force at the commencement of this Code, continue to be in force, and shall have effect as if the aforementioned Acts have not been repealed.

However, this particular section of the IBC has not been notified in the official gazette yet; therefore, the Ministry of Finance advised stakeholders to pursue their insolvency cases under existing laws rather than approaching debt-recovery tribunals. Sub section 2 of the act makes it very clear that pending proceedings under the acts repealed will be continued in accordance with the same provision. The non obstante clause in section 243 would mean that once notified, this code would override these acts. This might be one reason why the section has not been notified yet. 

The concluding and prevailing position of law therefore, is that if there is any initiation of proceedings under the IBC, it would effectively put the pending proceedings as well under the ambit of IBC. These proceedings will then not be governed under the Presidency Towns Insolvency Act, 1909 and Provincial Insolvency Act 1920.

Conclusion

From a thorough reading of the cases listed above, it can be concluded that clauses necessitating the publication of the notification in the official gazette are constitutionally valid and need to be complied with. Further, as long as the executive government does not unreasonably delay the publication of the same without any well-founded reasons, writ of mandamus cannot be issued. However, if the delay is unreasonable, the court can issue a writ of mandamus directing the executive organ to decide a time limit within which such an act must be notified.

Written by – Jhanvi Shah 

Edited By – Aaditya Bhatt Advocate, Chandni Joshi Advocate 

DIVORCE,  MAINTENANCE AND APPEALS UNDER THE HINDU MARRIAGE ACT

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DIVORCE,  MAINTENANCE AND APPEALS UNDER THE HINDU MARRIAGE ACT

 

Introduction

 

India is a country with a plethora of ethnicities and religions. Not surprisingly, it has developed different personal laws for communities residing therein. The Hindu Marriage Act was enacted in 1955 with the purpose of codifying and streamlining various religious specific practices that existed among Hindus, Buddhits, Jains, Sikhs and anyone domiciled in India who was not a Muslim, Christian, Parsi or Jew. It defines the conditions for a marriage, establishes the grounds for divorce, provides for maintenance and lays down the laws governing appeal to decrees and orders passed under this act.

This article aims to scrutinise mental cruelty and desertion as grounds for divorce, factors relevant for determining the amount of maintenance and the general rules applicable in appealing a decree passed under the Hindu Marriage Act.List of stages in a contest divorce proceedings and the grounds for divorce - iPleaders

 

Divorce 

 

Section 13 (1) of the Hindu Marriage Act allows for the dissolution of marriage on the grounds of adultery, cruelty, desertion, religious conversion and insanity.

  1. CRUELTY

Cruelty may be mental or physical. Section 12(1)(ia) states 

‘Any marriage solemnized, whether before or after the commencement of this act, may on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party has, after the solemnization of the marriage, treated the petitioner with cruelty.’

Cruelty is a conduct that inflicts such acute mental pain, agony and suffering that it makes it impossible for the other party to live with the other. It includes, but is not limited to abusive behaviour, humiliation, torture, allegation on the character of the spouse and undergoing a vasectomy or such procedures without the consent of spouse. It necessitates wilful cruel treatment of the party in a manner rendering continued living together of the spouses harmful and injurious.

Mere coldness or lack of affection, trivial irritations, quarrels, normal wear and tear of the married life cannot be adequate to invoke the grounds of mental cruelty. Similarly, mere outings and meetings with the opposite gender cannot be reasonably placed under acts of mental cruelty by inferring adulterous relationships from the same. On the contrary, such uncorroborated and untruthful allegations of infidelity themselves serve as acts of cruelty. 

 

In Vishal singh v. Priya and Anr., the husband alleged his newly wedded wife of mental cruelty through her ‘rude’ behaviour after marriage, her picking up quarrels with family members, keeping herself secluded and showing disinclination to participate in household chores. However, the court held that such conduct can, in no stretch of imagination, be described as cruel treatment. Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in day to day life would not be adequate for grant of divorce on the ground of mental cruelty.

 

  1. DESERTION

 Under explanation to Section 13(1), desertion is defined as the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage. It requires two essential elements:

  • Factum deserendi – The presence of the fact of separation. This would be drawn from the facts and circumstances of the case. 
  • Animus deserendi– The intention to bring the cohabitation to an end. This entails the absence of consent of the spouse or the absence of conduct resulting in such a cause of action.

The mere fact that the parties were living separately is not sufficient to establish desertion. There must be a definite intention to put an end to marital obligations. In instances where the wife is maltreated by the husband and lives in a non congenial environment, desertion cannot be inferred from the mere fact that she left the husband’s house. Desertion is a total repudiation of marital obligations and cannot include trivial matters. 

 

 

Maintenance

 

A wife is eligible to claim maintenance post divorce as well as during the divorce proceedings  in order to meet her financial expenditure on basic amenities. A husband may fulfil these obligations either in the form of a lump sum amount or in the form of a fixed monthly amount.Section 25 of the Hindu Marriage Act states that 

‘If an application is made to the court by either the husband or the wife, the respondent shall pay to the applicant for maintenance and support such gross sum or such monthly or periodical sum for a term not extending the life of the applicant and having regards to the respondent’s own income and other property and income and other property of the applicant, it may seem to the court to be just and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.’

 However, this maintenance amount awarded must be reasonable and realistic. Albeit the cort should ensure that it’s not exorbitant and unbearable on the husband, it should not be too meagre that it drives the wife to penury. 

Maintenance should be calculated on the basis of status of the parties, reasonable wants of the claimant, income and property of the claimant, number of persons he/she has to maintain, amount that suffices the applicant to live in a similar lifestyle as he/she enjoyed in the matrimonial home, non-applicant’s liability, provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant, Payment capacity of the non-applicant.

In Vejendla Sugunamma and Ors. vs. Vejendla Irmeiah and Ors. (15.04.2021 – APHC) : MANU/AP/0453/2021, where the wife did not know any skill and specialised work to earn her livelihood and was given the custody of her daughter, the court fixed the amount of maintenance to be Rs. 8000 per month each. However, the maintenance for the daughter was only until she got married/employed. 

In Jaiveer Singh vs. Sunita Chaudhary (05.04.2021 – DELHC) : MANU/DE/0621/2021, the wife was unable to sustain herself and needed maintenance from her husband. Looking at the financial state of the husband, the court ordered the amount of maintenance to be fixed at Rs. 17,000/- per month.

In Neelam vs. Yashpal (08.03.2021 – DELHC) : MANU/DE/0493/2021, despite their own earning of Rs. 2000 per month, the party was entitled to permanent maintenance of Rs. 1,16,000/-, keeping in view the increasing prices of essential goods.

 

Appeal to a decree of divorce 

 

An appeal to a decree of divorce should be made within the limitation period. Limitation period refers to a time period within which a legal action can be brought about by a party. It begins when the cause of action arises. 

The limitation period for appealing against a decree under the Hindu Marriage Act was extended from thirty days to ninety days by Act 50 of 2003. This was pursuant to various judgements by courts that pointed out that the time period of 30 days prescribed for filing the appeal are insufficient and inadequate, considering the potential distance, geographical conditions, the financial position of the parties and therefore, a minimum period of 90 days may be prescribed for filing the appeal against any judgment and decree under the Act and any marriage solemnised during the aforesaid period be deemed to be void.

 

 

Conclusion 

 

Therefore, it is evident that Indian Legal system acknowledges and upholds the sanctity of marriage by setting up a high threshold for establishing cruelty and desertion. Further, it also allows for a reasonable amount of maintenance to be granted to either party in cases where he/she is not able to maintain him/herself. Lastly it provides a 90 months period of limitation to parties for challenging decrees of divorce. The very objective of setting up such a period is that a party cannot ‘sleep over their rights’.Therefore, it is only prudent to initiate legal actions as soon as the cause of action arises. 

 

Written by – Jhanvi Shah 

Edited By – Aaditya Bhatt Advocate, Chandni Joshi Advocate