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Retail Store Franchise Agreement in India

By Team Legal Helpline India, September 21, 2020

Download Free Retail Store Franchise Agreement in India

The legal points related to the Retail Store Franchise Agreement in India explained briefly:

A Retail Store Franchise Agreement in India contains the important ingredients of the major important set of laws applicable. The list of such important applicable Acts which regulate and govern the Retail Store Franchise Agreement is given below for reference:

The Indian Contract Act, 1982- to determine the nature of contract being created under the franchise agreement.

The Trademarks Act, 1999- to deal with the aspects of the legal rights and the user rights over the trade mark. A franchise agreement mainly regulates the user aspects of the Trade Mark which is a valuable business asset.

The Designs Act, 2000- determine the righst of the Retail Store Franchise Agreement in India with regard to the design of the product and the legal rights associated with the same.

The Patents Act, 1970- determines the rights of the frenchise parters in a Retail Store Franchise Agreement in India for using the patent of the product and the legal rights arising out of the same.

The Copyright Act, 1957- determines the rights of the parties in the event of any literary or artistic creation. The Agreement should take into consideration all the important aspects of the Copyright Act as well.

The Competition Act, 2002 – it regulates the non competition clause of a Agreement as the frenchise partners are not supposed to compete in the business.

The Foreign Exchange Management Act, 1999- to regulate the flow of funds from abroad as RBI regulates all such money coming to India.

Income Tax Act, 1961- to determine the tax liability of the partners in the Retail Store Franchise Agreement in India as it is mainly based on the sharing of income between the partners.

The Consumer Protection Act, 1986- to determine the liability of the franchise partners in a Franchise Agreement in case of defective goods or services. This is a very important aspect of any franchise agreement.

The Arbitration and Conciliation Act, 1996- mandates and determines the method of resolution of the dispute between the frenchise parters under a Retail Store Franchise Agreement in India.

TIPS ON DRAFTING A RETAIL STORE FRANCHISE AGREEMENT IN INDIA

The Retail Store Franchise Agreement in India is a vital and important document regulating the terms and conditions of both the partners under the franchise agreement. The Agreement must have the following important subheads to make the Franchise Agreement comprehensive and workable under law.

The recital containing the details of both the parties to the frenchise agreement under the Retail Store Franchise Agreement in India.

The Agreement should also contain a specific and unequivocal grant of the franchise by the Franchisee to the Franchiser.

One of the most important and crucial aspects of the Retail Store Franchise Agreement in India is the warranties that the franchisee is able to take on the franchise.

Retail Store Franchise should clearly define and mandate the obligations of the franchisor to the franchisee- both initially and on-going

Fees and payment terms of the franchise should also be clearly spelt out in the Retail Store Agreement.

Rights to renewal is a crucial aspect of the Retail Store Franchise Agreement. It should be clearly mentioned in the agreement.

The issue regarding data Protection and law compliance is also to be clearly spelt out and mentioned in the Retail Store Agreement in India.

Franchisee’s undertakings- the undertaking by the franchisee is very crucial and important as he bound by the same and has to follow the same under all circumstances as written in the agreement.

Transfer terms: including pre-emption rights for the franchisor to acquire the business in the event of any transfer of the business.

Terms relating to the corporate structure of the franchisee are the most important aspects as the nature of the legal entity will determine the future interaction of the Retail Store Franchise. In case of a sole proprietorship, partnership, it is different and in the case of incorporated bodies like a private limited company, public limited company, it is quite different. It also determines the nature and status of the relationship are maintained with the change of the nature of the corporate entity.

Termination clause- is one of the most important clauses under the Retail Store Agreement in India as it determines the choice of the parties to terminate the agreement and to come out of it. 

Insurance– the liability of getting the insurance of the goods, products, raw material, plant, machinery, building etc is to be defined well in the franchise agreement specifically.

Status of subcontractors and sub letting- in a Retail Store Franchise Agreement in India, this is the most important and crucial aspect as most of the businesses are based on the sub contracting and sub letting of various activities of business. This aspect should be dealt specifically in the franchise agreement to avoid any complexity in the future.

Intellectual property rights- Now with the growth of the consciousness about the brand and safeguarding the processes, the protection of intellectual property rights has become a very important aspect. This aspect is to be specifically dealt in Retail Store Franchise in all respects. 

Confidentiality- is a clause related to the information related to the business process, clients, sourcing and all other activities which are also terms as trade secrets. It is very important to deal with the issue of confidentiality in details in the agreement.

Limitation of liability- In any Retail Store Franchise Agreement in India, the important and crucial aspect of limitation and liability is well defined. It includes the determination of the limitation of the parties qua each other thereby determining what can be done by him and what can not be done by him. This regulates the Agreement hence is a very essential ingredient.

Publicity- It is related to the issue of IPR as well as it determines the nature and extent of publicity to be undertaken by the parties. It thus determines the display boards, the banners, the online publicity material and process in details.

Indemnity is an essential ingredient of the Retail Store as it determines the liability of the parties under the franchise agreement.

Dispute resolution- the process of dispute resolution is an important and crucial aspect of the Retail Store Franchise Agreement in India. Most of the parties mention arbitration as the mode of dispute resolution. The appointment of arbitrators, the process and place of arbitration is also determined under the agreement.

Besides the aforesaid important aspects of the Retail Store Franchise Agreement in India, there are several important and crucial legal paragraphs which are required to be incorporated in the agreement based on the nature of business and other aspects between the parties.

How to get stay on demolition of property?

By Team Legal Helpline India, September 15, 2020

How to get stay on demolition of property or sealing of property explained with the legal concepts and procedure. Explanation of the legal issues related to How to get stay on demolition of property by the experts.

The issue of demolition of the property on the ground of unauthorized construction, illegal construction and encroachment is in news now days after the Kangana Ranaut episode. We need to understand the aforesaid concepts so that we can take any timely action when faced with such situation. Once we understand the legal provisions and the related issues, we can very well understand how to get stay on demolition of property. This will go long way in handling such eventualities.

The dispute of unauthorized construction, illegal construction and encroachment is a common dispute in the urban area and more particular in the metropolitan cities like Delhi and Mumbai. It is compounded by the fact when the Government or the officials concerned very often decide to take selective action on a particular property. Mostly, the officials the municipal corporation single out any property for their own considerations. We find the same currently in the case of Kangna Ranaut issue being reported by the media widely.

In the urban areas, municipalities regulate all types of construction coupled with the land use and other related aspects. In big cities the urban area is mainly handed over the Urban Development Authority for developing and providing the civic amenities and then to be handed over back to the municipality or the municipal corporation for providing the civic services and regulating the building activities.

Any construction in the urban area is to be done in accordance with the building bye laws as prescribed by the municipality or the state government. The plot owner applies for the sanction of the map for the proposed building in accordance with the building bye laws and the Unified Building Bye Laws as prescribed by the Urban Ministry of the central government. Once the building plan is sanctioned, the owner of the plot has to comply with the conditions and construct the building as per the sanction. Several aspects related to the construction are regulated by the local authorities such as Fire Department, Lift
Department, Electricity Department, Water Supply Department, Severe Disposal Department, and Ground Water Authority etc.

Once the construction of the building is completed, the owner has to seek the occupancy or the completion certificate from the local authority which is mainly the building department of the municipality. It involves the inspection of the building from structural safety point, compliance of the building bye laws etc. The completion certificate to the building is issued thereafter which make the house fit for human habitation. The water supply connection, sewer connection, electricity connection are granted only thereafter by the concerned departments.

Read NowReal Estate Laws in India

Demolition of Property – Important Words & Concept Explanations

Layout plan: The plan for the plot showing its lay out and location of the building and other facilities.

Building plan: The plan showing the entire technical details of the proposed building with its dimensions. It also includes the depiction of the electrical wiring, location of kitchen, toilets, shafts, lifts, staircase and all other specific details.

Key plan: It is part of the building plan showing all the technical details and dimensions of the building.

Compounding: The permitted deviations which can be compounded by paying penalty or some extra charges.

Unauthorized construction: The construction carried on beyond plan for a building.

Illegal construction: The construction done without sanction plan of the building.

Encroachment: Constructing beyond the plot mainly on government land adjoining the plot.

Demolition of building: It is done by the building department of the municipality or the municipal corporation under the law for demolishing the offending parts of the building which are in deviation of the sanctioned building plan.  

Deviations: The constructions or location of facilities that are in deviations of the building from the sanctioned plan which are not permitted.

BUILDING BYE LAWS:

The sanctioned map becomes the basic as well legal document to determine any construction in the building. If subsequently the owner or occupier of the building makes any additions and alterations in the building from the sanctioned building plan, the same is illegal. Of course the owner or the occupier has the right to seek modification, addition and alteration in the constructed building after seeking permission from the building department of the municipality or the municipal corporation.

The building bye laws are notified documents having statutory force and the building plan is sanctioned strictly in accordance with the same. Any deviation or addition or alteration in the sanctioned plan, not in accordance with the building bye laws would lead to action by the municipal authorities.

Thus it is clear that the building bye laws regulate the entire building and the sanction plan of the building is the sacrosanct document which is to be followed under all circumstances.

DEVIATION, ADITION AND ALTERATION IN THE BUILDING:

The building bye-laws permit nominal deviation by way of addition and alteration in the sanctioned building plans which are also regulated. In most of the cities, specific permission is to be taken from the building department before the renovation, addition, and alteration in the already constructed building. Furthermore, in some cities like Delhi, there are permitted deviations which do not need any permission or sanction if done in accordance with the notifications issued by the building departments.

If there is a case any deviation, addition, or alteration is noticed in the building at any stage, the municipal authorities are empowered to take action against the offending building.

PROCESS OF ACTION BY MUNICIPALITY

In most of the cities, there are specific provisions with regard to the process of handing any deviation from the building bye laws or the sanctioned building plan. The offending building is inspected by the officials from the Building Department. A notice describing the deviations and violations is issued mostly along with a map of the building and the deviations made therein. The offending building owner or the occupier is asked to submit his reply. After the receipt of the reply or after the period prescribed under the notice is lapsed, action for demolition of the offending part of the building is ordered. The final order of demolition or sealing is also served on the building owner or the occupier.

The owner of the building or the occupier has a right to challenge the action initiated against him before the courts. Mostly in cities there are Tribunals created to handle such cases or the party can directly approach the High Court by filing a writ petition.

HOW TO GET STAY ON DEMOLITION OF PROPERTY

The process of getting stay on demolition of property is mainly guided by law which is in form of the municipal corporation Acts or the bye laws prescribed by the municipalities.

In metropolitan cities, there are municipal corporations Acts which regulate the entire process.

In most of the cases, the building department issues a notice, mentioning the encroachments, deviations, illegal construction or unauthorized construction. There is a map attached to the notice which depicts the deviations.

In most of the cases, there is a description of the deviation and the unauthorized construction by narration.

The occupier or the owner of the building is asked to submit their reply to the same or stop the ongoing construction as the case may be.

If the owner or occupier is able to submit the reply, then it is considered by the authorities however in most of the cases, it is treated like a ritual only.

The authorities thereafter pass an order in accordance with the Act which can be either stoppage of work order or demolition order.

The authorities can also pass order for sealing of the premises if such grounds are made by them.

The owner or occupier of the building has the right to approach the Tribunal or the court as per the provisions of the applicable Act. In some cases he can also approach the High Courts under writ jurisdiction under extraordinary circumstances.

The courts mostly entertain the challenge and ask the authorities to submit a status report.

In some cases, courts also seek evidence if required and based on which it proceeds.

The matter is then decided by the courts based on the facts of the case and the provisions of the municipal Act.

If it is noticed by the court that there is some irregularity in the process or service of notice, the court restrains the municipal authorities from taking any action.

In some cases, the civil courts also issue stay order on such processes and the property is protected from demolition.

For getting a stay on demolition of the property, it is always better to get the services of the best lawyer for filing the appeal, writ or the civil suit before the court.  

LEGAL ISSUES INVOLVED:

It has been observed that the authorities very often initiate action against the offending building without describing the status of the construction.

It has also been observed that the authorities do not take care to ensure the service of the notice on the owner or occupier of the building.

In most of the cases, we find that sufficient time to reply the notice is not given by the authorities and the orders on stoppage of construction, demolition, sealing is passed hurriedly even without waiting for the reply. This is a clear violation of the Rules of Natural Justice and most of the courts accept the challenge to such orders.

As in news now a days, the proceedings against the offending building is very often initiated on selective basis and on extraneous reasons which can be political as well.

DIRECTIONS BY COURTS – Demolition or Property

The Supreme Court has elaborately dealt with this subject on several occasions and has issued comprehensive directions to deal such situations. It is to be followed in such cases by the municipal authorities and in case there is any violation of the said directions, the affected person is at liberty to take up the matter before courts.

Supreme Court has determined and issued specific directions prescribing the process for the authorities of Maharashtra to follow in such cases. Civil Appeal Nos. 7627 and 7626 of 2019, decided On: 24.10.2019 titled as “Municipal Corporation of Greater Mumbai  Vs.  Sunbeam High Tech Developers Private Ltd.” The court had issued specific directions for handling such cases by the Mumbai Municipal Corporation, the relevant part of the directions issued by the Supreme Court is reproduced hereunder:

“23. We also would like to give further directions regarding the manner in which the evidence of illegal construction/reconstruction etc., is collected and notices are issued and served. We, therefore, issue the following directions:

(1) It will be obligatory for all Municipal Corporations in the State of Maharashtra where the population is 50 lakhs or more to get geomapping and geo-photography of the areas under their jurisdiction done within a period of one year. Geomapping will also be done of an area of 10 Kms. from the boundary of such areas. The records should be maintained and updated by the Municipal Corporations within such time period as the Municipal Corporation deems fit, keeping in mind the specific circumstances of the area under its jurisdiction.

(2) Whenever any new area, which is not already geomapped, is brought under the jurisdiction of a particular municipality, it will be the duty of the concerned Municipal Corporation to ensure that geomapping of the area is conducted and the geomapping records of such area are created at the earliest.

(3) In cases where buildings are already existing and it is alleged by the Municipal Corporation that the building has been constructed in violation of applicable laws:

3.1. The Commissioner/Competent Authority on coming to know that an illegal building has been constructed, shall issue a show cause notice giving 7 days in terms of Section 351 to the owner/occupier/builder/contractor etc. Along with this notice the Commissioner/Competent Authority shall also send photographs and visual images taken on the site clearly depicting the illegal structure. Photographs and images should digitally display the time and date of taking the photographs;

3.2. In case the notice is not replied to within the time prescribed, i.e., 7 days, then the building shall be immediately demolished by the Municipal Corporation;

3.3. In case the owner files a reply to the notice, the Commissioner/Competent Authority of the Municipal Corporation shall consider the reply and pass a reasoned order thereon. In case the reply is not found satisfactory then the order shall be communicated in the manner laid down hereinafter to the owner/occupier/builder/contractor etc. giving him further 15 days’ notice before demolition of the property. During this period the owner/occupier/builder/contractor etc. can approach the appellate/revisional authority or the High Court.

(4) In those cases where according to the municipal corporation there is ongoing construction which is being carried on in violation of the applicable laws:

4.1. The Commissioner/Competent Authority on coming to know that there is ongoing construction in violation of the applicable laws shall issue a show cause notice giving 24 hours in terms of Section 351 to the owner/occupier/builder/contractor/architect etc. Along with this notice the Commissioner/Competent Authority shall also send photographs and visual images taken on the site clearly depicting the illegal structure. Photographs and images should digitally display the time and date of taking the photographs;

4.2. The Commissioner/Competent Authority can also issue an interim ‘stop-construction’ order along with the notice or any time after issuing the notice. Such order shall also include the relevant pictures of the alleged violation(s). Photographs and images should digitally display the time and date of taking the photographs;

4.3. In case the notice is not replied to within the time prescribed, i.e., 24 hours, then the building shall be immediately demolished by the Municipal Corporation;

4.4. In case the owner/occupier/builder/contractor/architect etc. files a reply to the notice, the Commissioner/Competent Authority of the Municipal Corporation shall consider the reply and pass a reasoned order thereon. In case the reply is not found satisfactory then the order shall be communicated in the manner laid down hereinafter to the owner/occupier/builder/contractor/architect etc. giving him further 7 days’ notice before demolition of the property. During this period the owner/occupier/builder/contractor/architect etc. can approach the appellate/revisional authority or the High Court.

(5) In regard to service of notice we direct as follows:

5.1. Wherever possible notice shall be served personally on the person who is raising or has raised the illegal structure including the owner/occupier/builder/contractor/architect etc.;

5.2. Notice, in addition to the traditional mode, can also be sent through electronic means, both by e-mail and by sending a message on the mobile phones. Even a message to a foreman or person in-charge of the construction at the site will be deemed to be sufficient notice;

5.3. In the notice, the municipal authorities shall also give an e-mail ID and phone number where the noticee can send his reply through e-mail or messaging services. This will hopefully do away with all disputes with regard to alleged non-service of notice.

(6) Till the State frames any laws in this regard, we direct that before any construction/reconstruction, or repair not being a tenantable repair is carried out, the owner/occupier/builder/contractor/architect, in fact all of them should be required to furnish a plan of the structure as it exists. They will also provide an e-mail ID and mobile phone number on which notice(s), if any, can be sent. This map can be taken on record and, thereafter, the construction can be permitted. In such an eventuality even if the demolition is illegal it will be easy to know what were the dimensions of the building. This information should not only be in paper form in the nature of a plan, but should also be in the form of 3D visual information, in the nature of photographs, videos etc.”

IMPORTANT NOTE:

For any contingent requirements of good lawyers for getting services related to stay on demolition on the property, send us the relevant documents on mail with brief facts. Our team will evaluate and get back to you.

CBI enquiry in Sushant Singh Rajput case

By Team Legal Helpline India, August 5, 2020

A brief write up on CBI enquiry in Sushant Singh Rajput case by our experts.

Currently the Indian media is filled with the news related to CBI enquiry in Sushant Singh Rajput case and various legal aspects related to the same are being reported widely. We will try to examine the legal issues involved with the demand of CBI enquiry in Sushant Singh Rajput case. The facts related to CBI enquiry in Sushant Singh Rajput case are mainly centered around the issue of territorial jurisdiction in a criminal case which is generally considered as the place where the crime took place. We will examine various provisions of the Code of Criminal Procedure which regulate the process of conducting the investigation by police outside the territorial jurisdiction and the powers of the court beyond its territorial jurisdiction.

The factum suicide by Sushant Singh Rajput is now being seen as his murder after several aspects of the matter are reported by the media. Mumbai Police has commenced the investigation in the matter as the suicide was reported within its jurisdiction. Now a FIR has been registered at Patna, Bihar and investigation taken up by Bihar Police on the complaint filed by the father of Sushant Singh Rajput. With this, the events have taken a new turn and demand for CBI enquiry in Sushant Singh Rajput case is being made to avoid the conflict of the working of the police of two states of Bihar and Maharashtra. The events in this regard have further taken very interesting turn after the refusal by the Maharashtra police to share the details of the investigation conducted previously in the case. 

We can understand the provisions related to the Criminal Procedure Code of India regarding the jurisdiction issue in such cases.

Chapter XIII of the Code of Criminal Procedure provides for the jurisdiction of the criminal courts in inquiries and trials.

Section 177 provides for ordinary place of enquiry and trial. It has been contemplated that every offense shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed.

Section 178 provides for place of inquiry or trial in relation to the offenses when it is uncertain in which of several local areas an offense was committed, or where an offense is committed partly in one local area and partly in another, or where an offense is a continuing one and continues to be committed in more local areas than one, or where it consists of several acts done in different local areas. It has been provided that in all such cases the offense may be inquired into or tried by a Court having territorial jurisdiction over any of such local areas. 

Section 179 makes it clear that if anything happened as a consequence of the offence, the same may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued.

From the provisions as contained in Sections 178 to 179 Cr.P.C. it is clear that the normal rule is that the offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed. However, when it is uncertain in which of the several local areas an offence was committed or where an offence is committed partly in one local area and partly in another or where an offence is a continuing one, and continues to be committed in more than one local area and takes place in different local areas as per Section 178, the Court having jurisdiction over any of such local areas is competent to inquire into and try the offence.

Under law, the absence of territorial jurisdiction does not prevent the Police from recording information about the cognizable offence and forwarding the same to the police station having jurisdiction over the area in which the crime was said to have been committed. In the present case, since a FIR has been registered at Patna, the police has Patna has undertaken the investigation. The law further contemplates that  the power of the police is wide enough to arrest any suspect without warrant and then produce him before the court. If the person has been arrested by the police within the area of commission of crime, he would be presented before the court within 24 hours of his arrest. If the person has been arrested beyond the territorial area of the place of occurrence of the crime, he can be produced before the magistrate of that area and transit remand can be sought. The rationale behind all such arrangements is to ensure the presence of the accused person before a magistrate within 24 hours of his arrest.

The police is also empowered to conduct seizure even in any part of the country under Section 78 of the CrPC . Police is further empowered to arrest any person in any part of the country under Section 78 of CrPC as there are provisions to issue warrant under the said section. The courts can direct the police officer of another police station falling beyond its jurisdiction to arrest some one. The police has powers to seize property even in the area beyond its territorial jurisdiction under Section 102 of the CrPC. The provisions of law under the entire scheme of arrangement of the Code of Criminal Procedure in this regard are sweeping and wide enough to grant full powers to police to deal with the crime not only within the territory of its police station but also outside the territory in connection with the crime committed in its jurisdiction.

In the present case Sushant Singh Rajput committed suicide at his flat at Mumbai. So far as the jurisdiction of the crime whether it is suicide or murder falls within the jurisdiction of the Mumbai police and the courts of Mumbai enjoy the territorial jurisdiction to try the case in terms of the provisions of Section 178 of the CrPC. As reported in media,  other aspects of conspiracy behind his murder or abetment of suicide have surfaced hence  the exclusive jurisdiction of the Mumbai police would be diluted and the police from other states can also investigate and take action in the matter if it is noticed that the persons behind the same are operating from other areas or were located at areas outside the jurisdiction of Mumbai police.

As the turn of events have taken place, after the death of Sushant Singh Rajput, the owner of his bank account shall be his father as the proceeds of his bank account and all his other assets and valuables are inherited by his family and become the property of his family. Since the family of Sushant Singh Rajput is located at Patna, and if they notice any criminal activity and then choose to lodge a complaint with the police at Patna regarding the theft, misappropriation of the aforesaid goods or the murder of Sushant Singh Rajput for grabbing the aforesaid valuables, then Patna police has the power and authority to register the FIR and investigate the matter. The courts at Patna have the jurisdiction to try the said case and to issue warrant of arrest, direction for producing the evidence, documents etc at Patna court. As reported in media, the transfer from the account of Sushant Singh Rajput has been effected online after his death thus gives a clear jurisdiction to the Patna police to take action as the owner of the said account after the death of Sushant Singh Rajput is his father who is based at Patna. His valuable security is stolen, so he has every right to lodge a FIR at Patna and the Patna police as well as courts at Patna would derive the jurisdiction over the matter fully. Needless to state that if the transfer of money from his account has been done after his death, it is not only criminal misappropriation but also impersonation and hacking of his account as the password of the account after his death becomes only a code and no one has a right to use the same.

A careful reading of the provisions of CrPC and various judgements by courts show that the police has powers to investigate the matter in any part of the country and even abroad.  The police has powers to collect evidence, arrest any one in other states as well. Even the courts have powers to issue arrest warrants outside their territorial jurisdiction.

In the present case of Sushant Singh Rajput, the FIR registered at Patna on the complaint of the family of Sushant Singh Rajput is thus valid and competent.  Patna police is fully empowered and authorized to take up the investigation in the matter in any part of the country or to detain or arrest any suspect in any part of the country or to recover any valuables from any part of the country. The provisions of Section 179 of Code of Criminal Procedure contemplates so. The case related to his suicide as reported to Mumbai Police can be investigated by Mumbai Police but the allegations of murder, abetment of suicide or criminal misappropriation of his money, cheating, forgery, hacking happened in consequence or independently can be very well enquired by the Patna Police.

Since the matter is now taken before Supreme Court of India. The Supreme Court of India has the power and authority to transfer any criminal case under the provisions of Section 406 of Code of Criminal Procedure. Now the Supreme Court  will decide this issue but on the face of it the registration of FIR and investigation by Patna police is valid. As the Supreme Court mainly delves on equity and administration of justice, the FIR at Patna may be transferred to Mumbai by it to keep a coordination of the investigation. More likely, the Supreme Court may now assign the matter to CBI under exercise of its powers, which is being demanded by many.

KNOWING CBI:

Now looking at the constitution and CBI and its powers, we find that   CBI traces its origin to the Special Police Establishment (SPE) which was set up in 1941 by the then British Government to investigate cases of bribery and corruption in transactions in the War & Supply Department of  India during World War II. Subsequently, The Delhi Special Police Establishment Act (DSPE) was enacted in 1946 for the investigation of the cases related to all government offices and UTs. In 1963 central government passed a resolution dated 1/4/1963  and named it as  Central Bureau of Investigation (CBI) and all central government offices, PSUs, as well as nationalized banks, were subsequently brought within the ambit of investigations of CBI. Through time, CBI became the national investigative agency taking up various cases of corruption, irregularities in central government offices on a selected basis and through time and acquired a special status and importance by the nature of cases it handled. 

Looking at the matter of Sushant Singh Rajput, since the crime as reported is complex as it is not a simple case of suicide as was reported earlier in the media. Now traces of huge amount of money and transfer of the amount from his account to various unknown accounts has been tracked and even the ED has booked its case, it more likely that CBI being a specialized agency can be assigned the case by Supreme Court looking at the complexities of the matter.

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Salary Dispute in Lockdown

By Team Legal Helpline India, July 14, 2020

Salary dispute in Lockdown or wage dispute in lockdown has erupted due to sudden and unprecedented lockdown of the country under the orders of the Central Government.

The lockdown has been triggered due to COVID-19 under the notification dated 24 March 2020 issued by the Ministry of Home Affairs. Subsequently, several other notifications, orders, circulars were issued by Central Government, NDMA, MHA, and other departments during this period.

The Central Government issued an order under Section 10(2) of the Disaster Management Act on March 29 on the issue of payment of wages.  All notifications were based on the NDM Act. Strangely the notifications dealt only with the various government offices and their activities. No mention initially was made regarding the salary, wages, and remuneration of the employees not working in the government sector or the employees working in the private sector.

This created confusion in the minds of the people leading of eruption of salary dispute in lockdown or the wage dispute in lockdown at various places which still the lockdown continues.

We have tried to explain the entire legal preposition related to the salary dispute in lockdown or the wage dispute in lockdown in the backdrop of the notifications of the government in this regard. We need to understand the nature and scope of the Disaster Management Act, on the basis of which most of the notifications have been issued.

DISASTER MANAGEMENT ACT, 2005 AND SALARY DISPUTE IN LOCKDOWN:

The Disaster Management Act, 2005 provides special powers to the central government in the event of any disaster. The Disaster Management Act, 2005 has an overriding effect on all other laws of the land. The Central government derives its special powers to declare lockdown and to do all the other actions for preventing the spread of the pandemic. This act has special powers over all other acts. It, however, does not deal with any kind of wage dispute in lockdown.

Also Read – Section 138 of Negotiable Instruments Act

Ministry of Labour & Employment, Government of India through its letter dated 20/03/2020, advised all the employers of Public and Private Establishments not to terminate the services of the employees during COVID or to resort to any wage cut or reduction of wages. It was also clarified that if the workers availing leave should be deemed to be at work without any substantial wage cut during the lockdown.

It was also mentioned that if the establishment of the employer remained non-operational due to the COVID-19 lockdown, the workers of such units shall be deemed to be on duty.  This was in fact intended to wage dispute in lockdown. Most of the state governments issued their own order and advisories to avoid wage dispute in lockdown which further created confusion instead of giving clarity on all such issues. In most such orders, the core issue of legal entitlement and legal obligation of the employer and employee has not been dealt specifically thereby leaving the employer and the employees to contest their claims.

WHAT IS SALARY?

The term salary has not been defined under any of the legislations. The term “Wages” has been defined in different Acts. Most relevant is the definition of the term wages as given under the Section 2 (iv) of the Payment of Wages Act, 1936. It reads as under:

“wages” [sec 2 (iv)] means all remuneration (whether by way of salary allowances or otherwise) expressed in terms of money or capable of being so expressed which would if the terms of employment express or implied were fulfilled by payable to a person employed in respect of his employment or of work done in such employment and includes –

(a) any remuneration payable under any award or settlement between the parties or order of a court;

(b) any remuneration to which the person employed is entitled in respect of overtime work or holidays or any leave period;

(c) any additional remuneration payable under the terms of employment (whether called a bonus or by any other name);

(d) any sum which by reason of the termination of employment of the person employed is payable under any law contract or instrument which provides for the payment of such sum whether with or without deductions but does not provide for the time within which the payment is to be made;

(e) any sum to which the person employed is entitled under any scheme framed under any law for the time being in force, but does not include –

(1) any bonus (whether under a scheme of profit sharing or otherwise) which does not form part of the remuneration payable under the terms of employment or which is not payable under any award or settlement between the parties or order of a court;

(2) the value of any house-accommodation or of the supply of light water medical attendance or other amenity or of any service excluded from the computation of wages by a general or special order of the State Government;

(3) any contribution paid by the employer to any pension or provident fund and the interest which may have accrued thereon;

(4) any travelling allowance or the value of any travelling concession;

(5) any sum paid to the employed person to defray special expenses entailed on him by the nature of his employment; or

(6) any gratuity payable on the termination of employment in cases other than those specified in sub-clause (d).

The term “wages” has also been defined under the Industrial Disputes Act, 1947 in Section 2 (gg) (rr) . The definition as given there is similar to the definition given under the Payment of Wages Act.  It can be safely said that the use of the term wages or salary are the same.

The Payment of Wages Act, Section 3 mandates that the employer is obligated to pay wages to “all persons employed by him.” According to Section 3(2) of the Act, this covers permanent, temporary, casual & badli workers. Section 3(2) further specifies that it shall be the responsibility of the employer to make payment of all wages in case a contractor fails to make the payment. Section 21 of the Contract Labour (Regulation & Abolition) Act, 1970, provides the same. Thus it is clear that all employees working in private employment are entitled to be treated as Workman and the scheme of the legislation mandates the payment of the wages under the Payment of Wages Act. It also casts an obligation on the employer to pay the wages besides declaring the workman entitled to the wages on a monthly basis instead of creating any wage dispute in lockdown.

WHO IS AN EMPLOYEE:

Indian laws on employment are limited only for employees falling under the category of “Workman” as defined under Section 2 (s) of the Industrial Disputes Act which is wide enough also to encompass almost all employees in private employment. The term “Workman” as defined under the Industrial Disputes Act 1947 broadly includes any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, but excludes those employed mainly in a managerial or administrative capacity. This definition excludes those workers who are employed in a supervisory capacity & those who draw wages exceeding Rs 10,000 per men sum.

DATE OF PAYMENT OF SALARY:

Under law the due date for the payment of the wages has been prescribed under Section 5 of the Payment of Wages Act which is 7th of every month for establishments with less than 1000 employees and by the 10th day of the subsequent month for establishments with more than 1000 employees. It is important to take note that the recent circular issued by the MHA has not altered or changed the said date in any manner so it remains the same. So any wage dispute in lockdown would be dealt with under the existing provisions only.

THE NO WORK, NO PAY PRINCIPLE AND THE WAGE DISPUTE IN LOCKDOWN:

There is no law describing the sudden closure of the establishments, factories, offices etc. except for the eventuality as described as “Lay Off” in the Industrial Disputes Act, 1947 which can be pressed into service to get more clarification on the issue of lockdown.  Section 2 (kkk) of Industrial Disputes Act, 1947, defines “lay off”, if an employer is unable to provide employment to an employee due to a natural calamity or for any other connected reason, then the same would fall within the definition of “Lay off”. Section 25C of the IDA mandates employers employing 50 or more workers who lays off workmen to pay compensation equivalent to 50 percent of the wages. Section 25M (1) of the Industrial Disputes Act, requires an industrial establishment with more than 100 workmen to seek prior permission from the appropriate government or such authority.

LAW RELATED TO SALARY DISPUTE IN LOCKDOWN EXPLAINED:

The law related wage dispute in lockdown due to the situation arising out of the lockdown can be seen in the Industrial Disputes Act where adequate provisions have been made in favour of the employees to protect their interest during such eventualities like lockdown.

 Section 2 (kkk) contemplates “lay-off” (with its grammatical variations and cognate expressions) means the failure, refusal or inability of an employer on account of shortage of coal, power or raw materials or the accumulation of stocks or the breakdown of machinery 6[or natural calamity or for any other connected reason] to give employment to a workman whose name is borne on the muster rolls of his industrial establishment and who has not been retrenched;

Read Next – Rent Dispute in lockdown

Explanation.- Every workman whose name is borne on the muster rolls of the industrial establishment and who presents himself for work at the establishment at the time appointed for the purpose during normal working hours on any day and is not given employment by the employer within two hours of his so presenting himself shall be deemed to have been laid-off for that day within the meaning of this clause:

Provided that if the workman, instead of being given employment at the commencement of any shift for any day is asked to present himself for the purpose during the second half of the shift for the day and is given employment then, he shall be deemed to have been laid-off only for one-half of that day:

Provided further that if he is not given any such employment even after so presenting himself, he shall not be deemed to have been laid-off for the second half of the shift for the day and shall be entitled to full basic wages and dearness allowance for that part of the day;

If we read it further in context of the other provisions of the Industrial Disputes Act, we find that lay off is prohibited under the Industrial Disputes Act however, some conditions for permission to lay off has been postulated. The relevant Section 25 M reads as under:

25M. Prohibition of lay-off.- (1) No workman (other than a badli workman or a casual workman) whose name is borne on the muster rolls of an industrial establishment to which this Chapter applies shall be laid-off by his employer except 3[with the prior permission of the appropriate Government or such authority as may be specified by that Government by notification in the Official Gazette (hereafter in this section referred to as the specified authority), obtained on an application made in this behalf, unless such lay-off is due to shortage of power or to natural calamity, and in the case of a mine, such lay-off is due also to fire, flood, excess of inflammable gas or explosion].

(2) An application for permission under sub-section (1) shall be made by the employer in the prescribed manner stating clearly the reasons for the intended lay-off and a copy of such application shall also be served simultaneously on the workmen concerned in the prescribed manner.

Another provision in this regard as given under the Industrial Disputes Act is under Section 2 (l) “lock-out” means the [temporary closing of a place of employment] or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him;

This provision is further regulated under Section 24 of the Industrial Disputes Act where the conditions have been described for declaring any lock out as legal or illegal. Although lockdown can be a cause of the closure of the place of employment as contemplated under Section 2 (l) of the Industrial Disputes Act and the employers can take the plea that they had to close their place of employment due to lockdown.

CONCLUSION ON SALARY DISPUTE IN LOCKDOWN:

The issue of the salary dispute during lockdown is unique due to the unprecedented circumstances which no one had visualized ever. Even the lawmakers had never visualized such a situation hence it needs a special definition now which the courts will do only after some dispute is brought before them. But as the law exists, it casts an obligation on the employer to pay the wages to the employees. The term salary has nowhere been defined but it connotes the term wages hence same meaning can be attributed to it. In fact, the salary dispute in lockdown is the wage dispute in lockdown in legal terms.

Since the notifications as issued by the central government does not suspend or override any of the sections of the ID Act or the Payment of Wages Act hence the liability of the employer remains and he is under obligation to pay the wages or the salary despite closure due to lockdown. The situation where the employer has taken permission of lay off or has declared lock out due to closure can be the situations where there can be dispute and the same would be decided by the courts on their merits.

So far as the question of the employees not falling under the category of workman are concerned, they can also invoke the provisions of the Industrial Dispute Act or the Payment of Wages Act or they can go to the civil court for recovery of their salary based on the terms of their employment.

In conclusion it can be said that the employee was prevented from working due to the lockdown and he was willing to work so he is entitled to the salary. However, as mentioned in the circular of the central government, the employers were directed not to remove or terminate the employees during this period hence it is clear that the central government wanted to maintain status quo on the matter. In view of the same, the employees are entitled to the salary for the period of lockdown keeping in view the above discussion.

Another situation may emerge where the employer has sought permission to lay off for the said period but the law is very clear on the point as the employer is under obligation to seek the permission of lay off and without the same, he can not deny work and the resultant salary to the employee. In case the employer has made all the compliance and has declared a lock out due to the situation, the matter can be contested by the employees on merits in view of the circular of the central government.

Reference to the order of the Supreme Court on the issue can also be made wherein the Supreme Court has avoided passing any specific orders on the matter on 12/6/2020 and has observed as under:

“We thus direct following interim measures which can be availed by all the private establishment, industries, factories, and workers Trade Unions/ Employees Associations, etc. which may be facilitated by the State Authorities:

i) The private establishment, industries, employers who are willing to enter into negotiation and settlement with the workers/employees regarding payment of wages for 50 days or for any other period as applicable in any particular State during which their industrial establishment was closed down due to lockdown, may initiate a process of negotiation with their employees organization and enter into a settlement with them and if they are unable to settle by themselves submit a request to concerned labour authorities who are entrusted with the obligation under the different statute to conciliate the dispute between the parties who on receiving such request, may call the concerned Employees Trade Union/workers Association/ workers to appear on a date for negotiation, conciliation and settlement. In the event a settlement is arrived at, that may be acted upon by the employers and workers irrespective of the order dated 29.03.2020 issued by the Government of India, Ministry of Home Affairs.

ii) Those employers’ establishments, industries, factories which were working during the lockdown

period although not to their capacity can also take steps as indicated in direction No.(i).

iii) The private establishments, industries, factories shall permit the workers/employees to work in their establishment who are willing to work which may be without prejudice to rights of the workers/employees regarding unpaid wages of above 50 days. The private establishments, factories who proceed to take steps as per directions (i) and (ii) shall publicise and communicate about their such steps to workers and employees for their response/participation.

The settlement, if any, as indicated above shall be without prejudice to the rights of employers and employees which is pending adjudication in these writ petitions.

iv) The Central Government, all the States/UTs through their Ministry of Labour shall circulate  and publicise this order for the benefit of all private establishment, employers, factories and workers/employees.

38. In event, any settlement is entered between the employers and employees in the establishments which are before us, an affidavit giving details shall be filed by next date of hearing.”

Thanks for reading our article on “Salary dispute in lockdown

Read Next –

Rent Dispute in Lockdown

By Team Legal Helpline India, June 19, 2020

A brief write up on rent dispute in lockdown by our legal expert, explaining the issue in details through legal provisions. We have already covered Salary dispute in lockdown in earlier articles.

The ongoing lockdown due to COVID-19 has created unprecedented circumstances wherein all economic activities are at a standstill. The Contractual, as well as the jural relationships between parties, is severely affected due to the lockdown.

The question of payment of the rent or the lease rent has become a moot point. This has lead to a rent dispute in lockdown between the tenant and the landlord.

Watch excellent video on rent dispute in lockdown

The moot question is whether the lockdown would entitle tenants to claim waiver or exemption from payment of rent or suspension of rent. This may lead to rent dispute in lockdown.  Under the existing framework of Indian laws,  there can be no standard law defining the situation which can be prescribed to address the issue of rent dispute in lockdown. 

To understand the rent dispute in lockdown, we have to first understand the relationship between landlord. The relationship of the landlord and the tenant is governed either by contract when there is a lease agreement or by the general law when there is no lease deed or rent agreement between the parties. The following conditions may emerge:

  • Rent dispute in lock down in oral tenancy
  • Rent dispute in lockdown in tenancy containing force majeure clause
  • Rent dispute in lockdown in written lease deed without any force majeure clause
  • Rent dispute in lockdown in lease or rent agreements with revenue sharing agreements
  • Rent dispute in lockdown in the lease agreements with a share in sales
  • Rent dispute in lockdown in lease or rent agreements with some rent and some sharing on sale

The question of waiver, remission or postponement of the rent as well as the rent dispute in lock down is based primarily on these types of lease arrangements. Any type of Rent dispute in lock down can be decided within the for-corners of such arrangements as described above.

UNDERSTANDING THE RENT DISPUTE IN LOCKDOWN LAW:

FORCE MAJEURE CLAUSE:  

‘Force Majeure’ is defined by Black’s Law Dictionary as “an event or effect that can be neither a dictionary, “The term includes both acts of nature (e.g. floods and hurricanes) and acts of people (e.g. riots, strikes and wars)”.

It describes the sudden events which are beyond the control of the parties such as natural calamities, riots, wars and other such eventualities which create a standstill or disruption of the activities. In legal parlance it is the condition that could permit waiver or suspension of the agreed monthly payment.  

 In most of the written contracts, lease agreements, lease deeds, rent deeds the clause of force majeure is included. The event of force majeure is however not in absolute terms, it is conditional and for a limited period of time meaning thereby that it can continue for few months and then the tenant will have the option to terminate or rescind the lease and come out of it. The wordings of the lease determine such force majeure and the construction of the clause as contained is crucial and important in any such rent dispute in lock down.

The concept of Force Majeure under the Indian laws to determine rent dispute in lock down would be governed by Section 32 of the Indian Contract Act, 1872.  This section reads as under:

“32. Enforcement of contracts contingent on an event happening. — Contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has happened.  If the event becomes impossible, such contracts become void.”

In case the contract between the parties contains an express or implied term relating to a force majeure condition, the same shall be governed and interpreted in its terms and in the light of Section 32 and Section 56 of the Indian Contract Act of 1872. These sections deal with impossibility of performance, would apply in cases where a force majeure event occurs outside the contract. The Supreme Court has observed:

“Insofar as it is relatable to an express or implied clause in a contract, such as the PPAs before us, it is governed by Chapter III dealing with the contingent contracts, and more particularly, Section 32 thereof. Insofar as a force majeure event occurs dehors the contract, it is dealt with by a rule of positive law under Section 56 of the Contact Act.”

Thus, in agreements providing for a force majeure clause, the Court would examine the same in the light of Section 32. The said clause could be differently worded in different contracts, as there is no standard draft, application or interpretation. The fundamental principle would be that if the contract contains a clause providing for some sort of waiver or suspension of rent, only then the tenant could claim the same. The force majeure clause in the contract could also be a contingency under Section 32 which may allow the tenant to claim that the contract has become void and surrender the premises. In such kind of rent dispute in lock down, if the tenant wishes to retain the premises and there is no clause giving any respite to the tenant, the rent or the monthly charges would be payable.

FRUSTRATION OF CONTRACT:

Another important provision of law visualising such eventualities is Section 56 of the Indian Contract Act, 1872. In the absence of a contract or a contractual term which is a force majeure clause or a remission clause, the tenant may attempt to invoke the Doctrine of Frustration of contract or `impossibility of performance’, which however would not be applicable in view of the settled legal position set out below. The said doctrine of `impossibility of performance’ is encapsulated in

Section 56 of the INDIAN CONTRACT ACT OF 1872, which reads as under:

“56. Agreement to do impossible act. — An agreement to do an act impossible in itself is void. Contract to do an act afterwards becoming impossible or unlawful. — A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Compensation for loss through nonperformance of act known to be impossible or

unlawful. — Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise.”

There are various conditions that have to be fulfilled to satisfy the conditions of `impossibility’ under Section 56. However, in the context of a tenant’s obligations, the Supreme Court had the occasion to consider this doctrine in the case of Raja Dhruv Dev Chand v. Raja Harmohinder Singh & Anr., AIR 1968 SC 1024. The Supreme Court, after considering the law on `impossibility of performance’ from various jurisdictions, held that in the Indian context Section 56 “lays down a positive rule relating to frustration of contracts and the Courts cannot travel outside the terms of that section”.

The Court held that Section 56 does not apply to lease agreements. The Court drew a distinction between a `completed conveyance’ and an `executory contract’ and observed:

“9. We are unable to agree with counsel  for the appellant in the present case that the relation between the appellant and the respondents rested in a contract. It is true that the court of wards had accepted the tender of the appellant and had granted him a lease on agreed terms of lands of Dada Siba Estate. But the rights of the parties did not after the lease was granted rest in contract. By Section 4 of the Transfer of Property Act the chapters and sections of the Transfer of Property Act which relate to contracts are to be taken as part of the Indian Contract Act, 1872. That section however does not enact and cannot be read as enacting that the provisions of the Contract Act are to be read into the Transfer of Property Act. There is a clear distinction between a completed conveyance and an executory contract, and events which discharge a contract do not invalidate a concluded transfer.

By its express terms Section 56 of the Contract Act does not apply to cases in which there is a completed transfer. The second paragraph of Section 56 which is the only paragraph material to cases of this nature has a limited application to Indian Contract Act of 1872 to covenants under a lease.

A covenant under a lease to do an act which after the contract is made becomes impossible or by reason of some event which the promisor could not prevent unlawful, becomes void when the act becomes impossible or unlawful. But on that account the transfer of property resulting from the lease granted by the lessor to the lessee is not declared void.

THE EVENTS OF LOCK DOWN DESCRIBED:

We can discuss the point wise events of the lockdown to visualize the various events of Rent dispute in lockdown . As given above, we can now describe these events and try to throw some light on such rent dispute in lockdown for understanding of the common man.

Oral tenancy on the month to month basis

In an oral tenancy on the month to month basis without any lease deed, rent deed or any document stipulating the terms of the lease. The rent dispute in lockdown would be decided by the common law of the land as describe above under Section 32 and Section 56 of the Indian Contract Act, 1872. If the tenant is able to prove the circumstances compelling the waiver of the lease rent due to the contingent events happening or impossibility or frustration of contract, he can claim some benefit. These all matters will be decided on the basis of the oral terms between the parties and the nature of the property, nature of occupation and several related factors.

It is however important to state that in such eventualities, the tenant or the lessee  is at disadvantageous position to prove the conditionality’s as described under Section 32 and Section 56 of the Indian Contract Act. He may be burdened with the lease rent under these circumstances or may be required to vacate the property under these circumstances due to non payment of rent.  

Tenancy with force majeure clause

The tenancy with written agreement of with force majeure clause will be regulated by the terms of the force majeure stipulated. A careful reading of the force majeure clause would determine the eventualities but it largely depends upon the nature of property, location of property, nature of business being carried and various government orders related to the lockdown. The tenant may thus claim remission from the lease rent for the period during which the force majeure clause is operative. It is always better to issue a communication or a notice to this effect or to put the invocation of the force majeure clause on records.

Written Lease deed without any force majeure clause

In such lease deeds, the Rent dispute in lockdown would be determined on the basis of the complete reading of the entire lease deed . The issue would be totally governed by the Indian Contract Act, 1872. Section 32 and Section 56 will determine the liability of the tenant or the lesse to pay the rent. It also depends upon the nature of the business of the tenant, the nature of the property and the various government orders, notifications issued from time to time during the lockdown.

Lease or rent agreements with revenue sharing agreements

Such lease rent agreements based on revenue sharing. In most of the cases, the definition of revenue is fixed as the profit generated. During the lockdown there are no sales or there are no chances of sales hence the profit constituting the revenue sharing is bound to come down but the tenant has no liability as such to pay any amount over and above the lease rent. 

Lease agreements with share in sales

During the lockdown, the sales are reduced hence the lease agreement stipulating the share in sales is bound to create Rent dispute in lockdown  but the same shall be decided only on the basis of the lease rent agreement and the Section 32 and Section 56 of the Indian Contract Act, 1872. The doctrine of frustration of contract or impossibility of contract will come into play and the Rent dispute in lockdown and the Rent dispute in lockdown will be determined accordingly.

Lease or rent agreements with some rent and some sharing on sale

In such lease deeds or rent deeds, the sharing of sales can be determined on the basis of the sales , if any happened but the liability to pay the rent would not arise if there are no sales. In any case the terms of the lease deed and the wordings of the lease rent agreement would be very important.

Thanks for reading our article on “Rent Dispute in Lockdown”

Read Next –

Quashing of FIR

By Team Legal Helpline India, May 25, 2020

ATTENTION: We have in house team of online legal experts for all services of the quashing of FIR before High Court. Online legal advice by experts on all matters. Mail your requirements with a copy of the FIR. #firquashingundersection482ofcrpc #onlinelegaladvice

If you are facing a false FIR, read this article on the quashing of FIR explained with specific details of law by our expert for a layman. A simple reading of this blog will give a fair idea of the concept of the quashing of FIR by the High Court. The eventualities and stages of FIR quashing have also been described which will help in understanding the subject very clearly.

STAGES OF FIR QUASHING:

  1. Immediately after registration of the FIR.
  2. After filing of the charge sheet.
  3. Quashing of the proceedings of a complaint case.
  4. Quashing of FIR at any stage of the criminal proceedings.
  5. FIR quashing on the basis of mutual compromise.
  6. FIR Quashing after plea bargaining.
  7. Quashing of any criminal proceedings under Section 482 CrPC.
  8. FIR quashing in matrimonial matters.
  9. Quashing of FIR in financial matters.

DOWNLOAD FORMAT OF FIR QUASHING COMPROMISE DEED

Quashing of FIR is contemplated under the Code of Criminal Procedure in Section 482, which is commonly called as the inherent powers of the High Court. The powers of the quashing of FIR are very wide, even Section 482 of CrPC is wide enough to cover all aspects which the High Court can cover. The provision of Section 482 is resorted to for the quashing of FIR. The parameters for the quashing of FIR are well laid and postulated hence it is better to understand the same before going for the quashing of FIR by the High Court. The said provision can be quoted for instant reading below:

Section 482 in The Code Of Criminal Procedure, 1973

482. Saving of inherent powers of the High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

The broad parameters to be laid down for the quashing of FIR are mainly to prevent abuse of the process of court and secure the ends of justice. Thus we find that the powers of the High Court under Section 482 CrPc are the widest powers under which the High Court can consider all aspects and go for quashing of FIR if it finds fit. The inherent powers under section 482 CrPC for quashing of FIR by the High Court can be exercised only when no other remedy is available. FIR quashing ordinarily based on the facts of defence in advance is not permissible as the appreciation of the evidence can only be done under a trial.  

The Supreme Court in its landmark judgment in Madhu Limaye vs the State of Maharashtra, related to FIR quashing has laid down some very important principles which regulate the exercise of the powers of Section 482 CrPC by the court.  

  1. The exercise of powers under Section 482 CrPC for FIR quashing is not to be resorted to if there is a specific provision in code to redress the grievances of the aggrieved party.
  2. Powers under Section 482 CrPC for quashing should be exercised sparingly and to ensure the abuse of process of any Court or otherwise to secure ends of justice.
  3. The powers under Section 482 CrPC should not be exercised for quashing against the express bar of the law engrafted in any other provision of the code.

CONDITIONS OF QUASHING OF FIR:

In the State of Haryana vs Bhajan Lal (1992 Supp.(1) SCC 335), Supreme Court of India has summarized the law as laid down in Section 482 CrPC for quashing and has laid down 7 important conditions for quashing of the criminal proceedings under Section 482 CrPC. The said points are listed below:

  1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. In that case, the FIR Quashing can be done by the High Court under Section 482 CrPC.
  2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
  3. Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
  4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
  5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
  6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or, where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
  7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

Keeping the above factors in mind, the High Court in the exercise of its powers under Section 482 CrPC and after going through the facts of the case , can go for the quashing if any of the parameters is qualified or the High Court thinks it fit in the interest of justice.

The above criteria are very wide and engulfed in such a manner that all FIRs lodged with some irregularities can be covered under it and the High Court under the exercise of its powers under Section 482 CrPC can quash the FIR. Inherent powers of the High Court under Section 482 CrPC are limitless, it can see perversity, malice, non-application of mind and order for quashing.

The exercise of powers by the High Court under Section 482 CrPC for quashing is based purely on the subjective assessment of the judge. He has to strike a balance between the powers of the courts under Section 482 CrPC and the facts of the case. As such no specific parameters are laid down for the exercise of the powers by the High Court under Section 482 Crpc.

Code of Criminal Procedure contains Section 320 which mandates the compounding of the criminal proceedings before the courts subordinate to the High Court during the trial or during the appeal but provisions of Section 482 CrPC have an overriding effect on the same considering the wide powers vested with the High Court for FIR Quashing.

QUASHING OF FIR AFTER CHARGE SHEET:

The High Court under the exercise of its powers under Section 482 CrPC can very well go for quashing even after the filing of the charge sheet by the prosecution. Either the parties can reach a compromise in the matter or the accused can appraise the court that there is no material against him even after the investigation of the matter.

The accused can also take the pleas of inherent improbability on the basis of the entire facts and the material collected against him in the charge sheet. The High Court can order for FIR quashing on the basis of the same as the provisions of Section 482 CrPC are wide enough and empower the High Court very wide powers of quashing of FIR.

QUASHING OF FIR ON THE BASIS OF COMPROMISE:

The FIR quashing by the High Court can be done at any stage of the case on the basis of compromise. Both the parties, i.e. the complainant or the informant and the accused can enter into a compromise and on the basis of compromise and then file a joint petition under Section 482 CrPC for FIR quashing.

The court can, however, scrutinize all the aspects of the matter and order for the quashing. In case the court is not satisfied with the facts and the compromise, the High Court can refuse the quashing on the basis of compromise. If the FIR is compoundable, the court may again refuse for FIR Quashing as there is an alternate remedy and the parties can approach the trial court.

FIR QUASHING IN MATRIMONIAL CASES COMPROMISE:

The High Court in the exercise of its powers under Section 482 CrPC is liberal in quashing of FIR arising out of matrimonial disputes which are mainly FIRs under Section 498 A and 406 IPC. The parties of the matrimonial dispute enter into a mutual settlement either before any of the courts where the proceedings are going on or independently.

They generally reduce it in writing and prepare a settlement of Mutual Compromise Deed spelling all terms and conditions. Most of the courts accept the same and order for quashing of FIR on the basis of compromise.

The parties are however required to appear before the High Court for their identification and their statement is also recorded in the court. In most of the cases, if the parties are going for mutual divorce, they are required to come to the court after their divorce proceedings are over.

In exceptional cases, courts order for FIR quashing even before the mutual divorce is over. There is no hard and fast rule for the same and the High Court in the exercise of its powers under Section 482 CrPC often try to be very open in such matters as they are matrimonial matters.

Free Download Mutual Compromise Deed for matrimonial cases.

QUASHING IN ECONOMIC OFFENSES:

Quashing is very often resorted to in economic offences when the financial dispute is settled and the parties come to terms. If very serious sections other than the economic offence are not involved, then the parties very often enter into a deed of compromise and go for the quashing on the basis of compromise.

The High Court while exercising its powers under Section 482 CrPC deed of compromise and go for the quashing on the basis of compromise. The High Court while exercising its powers under Section 482 CrPC can thus exercise its powers and order for quashing on the basis of settlement keeping in view the entire facts and circumstances.

IMPORTANT:

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For any contingent requirements mail the brief facts along with the copy of the FIR and other related documents.

Important FAQ about FIR Quashing:

What is FIR quashing?

FIR quashing is the petition filed before High Court for quashing the FIR and all related proceedings against the accused.

Which court has powers of FIR quashing?

High Court has powers for quashing of FIR under Section 482 CrPC.

How FIR quashing can be filed?

FIR quashing can be filed before the High Court by way of a petition through a lawyer.

Can FIR quashing be done on merits or if there is a false FIR?

Yes, FIR quashing can be done if the same is frivolous or bogus or misuse of the process of law or authority by anyone.

Is online legal service for FIR quashing under section 482 crc available?

Online services are available #firquashingundersection482ofcrpc

What to do with a false FIR?

You can go for the quashing of a false FIR.

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Execution of a Will

By Team Legal Helpline India, May 21, 2020

In house expert legal experts for online legal services for Execution of a Will.

Online legal services on Execution of a Will and probate proceedings.

Execution of a Will and the associated concepts of Probate, Succession explained in brief for the understanding of a layman with important tips. If you are planning the execution of a will, great help with clarity on the issue through this article is assured.

Under Indian laws, the Execution of a Will is an important and crucial act. Through a will, any person can determine and mandate the distribution or management of all his assets and properties after his death in the manner prescribed by him through the will.

In other words, a will is a legal document through which one can determine and make provisions for the distribution and management of his properties after his death. The Indian laws do not prescribe any particular process for drafting and the Execution of a Will hence it is done in accordance with the common law of prudence. The process of execution of a will should look natural and logical to give credence to it.

Will is also a very important testamentary document that mandates the distribution of the estate of the deceased as recorded or directed in the will. Under Indian laws, a will is duly granted a valid legal status if the basic procedure has been followed in it.

IMPORTANT TERMS RELATED TO THE EXECUTION OF THE WILL:

TESTATOR: The person who executes or writes the will is called the testator.

ESTATE: The entire property including the movable as well as immovable properties of the person who has died is called estate.

EXECUTOR: The person who is appointed or authorized to execute the will is called the executor.

BENEFICIARY: The person or group of persons in whose  favour the   will has been executed are called the beneficiary.

CODICIL: The document through which additional provisions can be made in the will without changing the will is called Codicil.

SUCCESSION CERTIFICATE: It is the document which is issued by the court validating the will and annexing the same for execution.

PROBATE : It is the process through which the will is executed by the court.

ANCILLIARY PROBATE: When the testator has included the immovable properties situated at various countries, ancillary probate is required after the main probate for the respective property.

LETTER OF ADMINISTRATION: It is the order issued by the court naming the beneficiaries and details of the properties of the deceased,  when there is no will left by the deceased person. 

Pro Bono Supreme Court Lawyer India

IMPORTANT TIPS:

  • The Execution of a Will can be done only by a major having sound state of mind.
  • A will can be registered as per the choice of the testator, it is however not mandatory to register the will under Indian laws after the Execution of a Will .
  • Two attesting witnesses are required to sign on the will testifying that they were present at the time of the Execution of a Will and have seen the person signing on the will without any undue influence in fit state of mind.
  • The person writing his will can write about the distribution of the assets and properties earned by him as per his desire. He cannot include more than the share of the ancestral property which he has inherited while executing the will. 
  • Will should be written in the language known to the person otherwise, a certificate at the end of will that he has understood the contents of the will is required to be given if any other language is used at the time of Execution of a Will.
  • Will can be executed in favour of a minor also and his guardian or custodian for the will can be named.
  • Execution of a Will  can be done for the future children.
  • Future property can not included at the time of execution of a will.
  • A trust can be created under the will and persons can be nominated to the said will.
  • An executor of the will can be appointed at the time of execution of a will who can be any friend, relative or even the beneficiary of the will.
  • Even any NRI as executor or beneficiary can be appointed at the time of execution of a will .
  • It is not necessary to will in favour of descendants, children , relative etc. He can give the properties to any one of his choice, his friends, servants etc.
  • All properties, movable or immovable can be included in the will and distribution of the same can be made by mentioning all this. If any property is not mentioned in the will or any property has been acquired or inherited after the execution of a will, the same will be distributed in accordance with the law of inheritance and not in terms of the will.
  • The properties outside India can also be given through a will but the same needs to be probated from the courts of competent jurisdiction where the property is located. The same can be obtained through ancillary probate . Estate duty is also applicable as per location.
  • Will only operates after the death of the said person; he can change the will at any time.
  • Any addition  in the will can be made through an additional document which is called codicil.
  • Will can be kept under seal without disclosing the contents with the Registrar which can be opened only after the death of the said person. There are special provisions for the same after the execution of a will.
  • Mutual or reciprocal wills between husband and wife or anybody can be made.
  • Joint will can be made by two or more persons.
  • Arbitration can be done in place of Probate proceedings. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased under the laws of India.
  • The law related to execution of a will is similar on Hindus, Buddha, Jains, Sikhs.
  • Indian Muslims are allowed to bequeath 1/3rd of their estate. However, the testator can exceed its limit on testamentary power of 1/3rd to 1/4th in case where heirs give consent or only heir is husband or wife.

ATTENTION: We provide all legal services related to the execution of a will in India. We have a dedicated team of experts for online legal services. Mail us your requirements for a quick response.

How to write a will?

The will should be written or neatly typed with a clear description of all beneficiaries and properties to be distributed between them.

Is Registration of a will mandatory?

No, registration of a will is not mandatory under Indian laws, but it is always better to do do.

How many witnesses required in a will?

At least two witnesses required in a will.

Legal Advice Online By Expert Lawyers

By Team Legal Helpline India, May 15, 2020

ATTENTION: We have excellent arrangements for Legal advice online through Video Conferencing by a team of experts. Contact us for any urgent requirement through the contact us page of our website.

Legal advice online is the new phenomenon in legal services which is after the revolution of Information Technology globally. As such in the true sense,

Legal advice is now spaceless, cutting across the geographical and political boundaries in all respects and can be round the clock for 365 days of the year.

Legal advice online is gaining strength day by day as it is convenient, quick, and transparent besides being cost-effective and affordable in all respects.

Also Reade-filing in Supreme court of India

We can consider and discuss various types of Legal advice online as under:

Legal advice online in India through Video Conferencing:

Legal advice is the latest breakthrough in the field of legal services. Due to the advancement of IT tools such as video calls, ICT gadgets, it is now possible to render

Legal advice through the most effective and convenient methods. Legal advice online through video conferencing ensures a lot of time-saving and face to face interaction between the client and the legal expert.

In fact, Legal advice through video conferencing is just like the physical interaction with the legal expert in a meeting legal conferences and seeking their advice on the legal subject.

The Legal advice online through video conferencing is done by us by asking the client to send all the documents, papers along with the brief of the subject.

Our team is deputed to go through the entire documents and the brief and in this process several rounds of interaction with the client either through phone or through chat or video conferencing.

Once the entire material is collected and compiled, the legal issues identified, we fix a time with the client for Legal advice through video conferencing.

At the given time the legal expert is deputed to advise, in some cases, there is more than one legal expert on the subject for the advice.

The session of Legal advice through video conferencing is totally dedicated to the subject and the client is given full satisfaction of all his legal queries.

This type of Legal advice through video conferencing is very fruitful and several people can join it through any of the tools of ICT like Google meeting, Zoom, Wordsapp meeting, Due Meeting, etc. depending upon the requirement of the client.

Legal advice online through video conferencing is the most satisfactory, effective, acceptable, cost-cutting, transparent method of Legal advice.

It involves no traveling, no wastage of time on several related activities, and ensures focused and qualitative legal advice either through one expert or through several experts connected virtually.

The recording of the session of Legal advice online through video conferencing can be retained and used for future purposes also or for any future clarifications which are a very important aspect of the Legal advice online through video conferencing.

Legal Advice India through e-mail or chatting:

This the most common and convenient Legal advice mode wherein the legal advice online is given through email.

Generally, the process of Legal advice includes the submission of all the relevant documents, papers, and briefs in advance so that the online legal advisor goes through the same as per his convenience in advance.

A chatting session is fixed for the Legal advice during which the legal expert or the team of legal experts interact through chatting either bilaterally or with several persons online.

The benefit of such Legal advice is the quick and effective handling of the situation through chatting which makes things more transparent and certain.

Most of the big corporations, multinationals prefer such types of Legal advice as it saves a lot of their time and gives a definite opinion on the legal issue which can be circulated or quoted to all the concerned persons.

Legal Advice in India Through Teleconferencing:

Legal advice online through Teleconferencing is a well established and prevalent mode of legal service in the modern era. With the advent in the telecommunication modes, multi-user telephone conferences are very easy nowadays without any constraint of location.

This has thus given very important and crucial tools for Legal advice through Teleconferencing in legal services.

For Legal advice through Teleconferencing, the documents and papers along with the brief of the facts are submitted in advance and a team of experts is deputed to prepare the same and do the due diligence on the subject in coordination with the clients.

A time is fixed for the Legal advice through Teleconferencing and all the concerned and taken online who can easily participate in the session of Legal advice online through Teleconferencing.

This is a very effective, easy, and convenient process of legal services which is very important and prevalent.

e-Filing in Supreme Court of India

By Team Legal Helpline India, April 17, 2020

E-filing in Supreme Court of India explained in brief. Efiling in Supreme Court of India is the much awaited process for the legal fraternity.

ATTENTION: For urgent e-filing in Supreme Court of India, send us the details on mail. We will make an assessment and get back immediately.

It is a very good news for the litigant, Indian lawyers and all persons concerned with the legal system of India. The Supreme Court has started the e-filing in Supreme Court of India. Efiling in Supreme Courtwill go a long way in facilitating easy and smooth reach of the people to Supreme Court of India.

As we know, Supreme Court of India is the apex court of country. Supreme Court of India has original, appellate jurisdiction wherein thousands of cases are filed under various categories. Most of the cases as filed before Supreme Court of India are on the appellate side. These are mostly against the orders of High Courts or appellate tribunals or some statutory appeals. Since Supreme Court of India is the final court. It is essential that the access of common man for filing his petition before the Supreme Court of India is given through e filing. This is a step towards online legal services which is a new horizon.

There was no e-Filing in Supreme Court of India earlier. All cases were being filed in hard copies in the Registry of court in the fixed formats. After filing the cases were scrutinised and then listed before the court after removing all defects. This was mainly manual. As a result of this, lot of time was being wasted before listing the matter before the court very often. After the introduction of e-Filing in Supreme Court of India, during the lock down period it is simplified. The hearing of the cases is also being done through video conferencing after the e-Filing in Supreme Court of India.

The earlier system of filing hard copies filing was however being followed in a rigorous manner. It was to prevent any mischief or manipulation in the process. Now with the growing implementation of the e court project and keeping in view the requirements of the time, the court has slowly allowed  e-Filing in Supreme Court of India.

In view of the ongoing sudden lock down due to Corona Virus since March, 23, 2020, e-Filing in Supreme Court of India has been allowed. Standards are prescribed through standard operating process . As per the notification issued by the Supreme Court of India, only very urgent cases can be filed through the e-Filing in Supreme Court of India and can be listed and heard through video conferencing only by the judges. This crisis has thus initiated the much awaited e-Filing in Supreme Court of India which is expected to be followed even during the normal times as well. The introduction of e-Filing in Supreme Court of India is bound to advance the reach of the Supreme Court more and more. The efiling in Supreme Court will also make the access to Supreme Court more easy for a common man.

THE STANDARD OPERATING PROCEDURE OF E-FILING IN SUPREME COURT OF INDIA:

e-Filing in Supreme Court of India at present has been allowed for only matters involving extreme urgency, to be decided by the Presiding Judge designated for the purposes. The person filing the petition has to send the matter in brief and the Presiding Judge considers it on the basis of prayer made by Advocate-on-Record/Party-in-person by way of a signed and verified mentioning-application containing a synopsis of extreme urgency not exceeding one page. This is the first step of efiling in Supreme Court.

In all matters involving extreme urgency for e-Filing in Supreme Court of India, the Advocate-on Record/Party-in-person is first required to file the petition/miscellaneous application, preferably through the e-filing mode available on the Supreme Court website, as per procedure elaborated at the link https://main.sci.gov.in/php/FAQ/5_6246991526434439183.pdf.

MENTIONING APPLICATION FOR E-FILING IN SUPREME COURT OF INDIA:

After the e-Filing in Supreme Court of India, and upon completion of all the formalities, as per rules governing such petition/ miscellaneous application, and upon its due registration the Advocate-on-Record/Party-in-person is permitted to send separately the signed and verified mentioning-application containing a synopsis of extreme urgency not exceeding one page for the purposes of e-Filing in Supreme Court of India.

The mentioning-application for e-Filing in Supreme Court of India shall be submitted only by e-mail at the email address mention.sc@sci.nic.in. Mentioning application received by 5 PM, two days’ preceding the date of hearing shall be processed for such date. The mentioning-applications received thereafter would be processed for the next date of hearing.

The mentioning-application for the e-Filing in Supreme Court of India must inter-alia clearly contain the entire case-details as well as the contact-details of the Advocate-on-Record/Party in-person viz. e-mail ID, mobile number with alternate number etc. address stating Pin Code and Police Station with all other important and relevant particulars;

The mentioning-application for e-Filing in Supreme Court of India shall include a separate paragraph with a prayer for exemption from filing duly attested affidavit in the prevailing circumstances, together with an undertaking to the effect that physical copies of documents relied upon in the petition, deficit court fees or other charges, if any, shall be filed at the earliest. It is very important to note that the parties are not permitted to rely upon any document other than the documents  filed;

For e-Filing in Supreme Court of India the  mentioning-application must also contain a separate paragraph giving consent that the matter may be taken up through the video-conferencing mode.

In the mentioning-application, the Advocate-on-Record/Party-in-Person must specify as to whether he would link to the Bench by video-conferencing through own desktop/laptop/ mobile phone or would prefer to appear at the video-conference facility in the Supreme Court premises.

After the e-Filing in Supreme Court of India and upon the  approval of the urgency by the Competent Authority, the case would be listed before the Bench in due course. The case will be reflected in the cause list of the court and all particulars can be verified from the website of Supreme Court.

In case the application praying for listing on grounds of extreme urgency is declined, the AOR/Party-in-Person would be intimated through e-mail. Re-mentioning of case through landline phone at the residence of the judges or otherwise will not be permitted;

In a matter, where a Senior Advocate/ Arguing Counsel is required to appear appear and conduct the hearing, the Advocate-on-Record is required to additionally indicate the contact details of the Senior Advocate/Arguing Counsel, in the mentioning application for the e-Filing in Supreme Court of India;

 In a matter where the litigant seeks to view the proceedings, the Advocate-on record may additionally indicate the contact details of the litigant, in the mentioning-application for e-Filing in Supreme Court of India;

Only two appearance-links will be provided per party, together with one viewing-link that may be provided for the litigant separately; hence, it is expected that request of such links, if any, should be clearly made in the mentioning-application to enable the Registry to provide the links in time at each point, at the time of the hearing.

CONDUCT OF CASE THROUGH VIDEO CONFERENCING

After the e-Filing in Supreme Court of India, the cases are to be heard only through web-based video-conferencing system on the VIDYO platform hosted on the servers of National Data Centre of National Informatics Centre, Govt. of India. The smooth functioning of the video-conference is purely dependent upon the signal at the end of the user. It is therefore advised that parties may verify the signal strength to avoid any disruption during the hearing.

The user at the other end joining the court hearing through video conferencing has to ensure robust connectivity and bandwidth are available at their end. It is advisable to use broadband connection of minimum 2 mbps/dedicated 4G data connection, and may also ensure that no other device or application is connected to or using the bandwidth when the hearing by video-conferencing is progressing on their Vidyo-enabled computer (preferable) or mobile.

THE PROCESS OF HEARING THROUGH VIDEO CONFERENCING IN SUPREME COURT OF INDIA

Parties are required to  download VIDYO DESKTOP application from the site http://ecourtvc.nic.in   on their laptop or desktop on any compatible operating system. This platform is to be used for the video conferencing.

All other parties may join the video conferencing on VIDYO platform by downloading the VIDYO MOBILE application in a compatible mobile device (phone or tablet) either from https://play.google.com/store/apps/details? id=com.vidyo. VidyoClient Google Play Store (Android device) or from https://apps.apple.com/us/app/vidyomobile/id444062464 Apple  APP Store(iOS device), on the same mobile number as mentioned in their contact-details in mentioning-application;

The Invitation Link for appearance and viewing, as the case may be, will be sent by the Registry to the given mobile through SMS/e-mail/WhatsApp around half-an-hour before the scheduled hearing, and parties may kindly note that each of the link so sent to any device is required to be unique and hence, parties may not share or forward such link(s) to any other device nor shall they enable others to join the hearing through video conference.

Party concerned will be advised to click on the link provided, as received on their computer or mobile device, upon which a window as depicted below in PIC 2 shall open; thereafter, the party is required to click on the “Join Conference” button.

Upon clicking the “Join Conference” button, a ‘VIDYO’ display window as depicted in PIC 3 below shall open, prompting the party to enter the display name before clicking.

“Join” button; the party is required to write his/her name with designation by prefixing item no.(of the cause list) in the space given  thereafter the party is required to click on the ‘JOIN” button; PIC 2 PIC 3.

After having clicked on the ‘JOIN’ button, as in PIC 3 above, the party would join other parties in a virtual waiting room, and parties would be required to wait patiently for being joined to the virtual Court room and wait for their turn like the real court room hearing.

Upon being joined to the virtual Court room, arguing counsel shall introduce himself to the Hon’ble Bench and thereafter, shall wait for the instructions from Hon’ble Bench – on being asked, party may make submissions and on completion of the submissions, shall at once ‘mute’ the MIC of the respective device, if the Hon’ble Bench requires the party to make further submission(s), the party may then ‘unmute’ the MIC of the device and again, on completion of the submission, put the MIC on ‘mute’ mode.

Important dos and don’ts:

It is important for parties to remember to keep their MIC on ‘mute’ at all times, except when the Bench requires them to make submission(s); thus, when one party is making submissions, it is imperative that all other participants shall keep their respective MIC muted failing which the possibility of MIC catching audio feed from the speakers and creating `echo/noise disturbance’ would become very high and may disturb the video conference.

It may be noted that simultaneous submissions by more than one party at any given time should be avoided and each party may indicate requirement to speak/submit by asking for permission from Bench, by raising a hand. Once permitted by the Bench, the party shall first ‘un mute’ the MIC and thereafter make submissions.

During hearing through video-conferencing, the parties may kindly keep in mind that it is a virtual court room proceeding visible to all hence it is expected that they would not resort to any indecorous conduct or dress or comment. The party has to ensure that the proceedings by video conference are neither recorded/stored nor broadcast, in any manner whatsoever, as recording/copying/storing and/or broadcasting, by any means, of the hearings and proceedings before the Supreme Court of India are expressly prohibited.

 Parties are required to stay online till the Bench concludes the hearing of their matter, thereafter the parties may disconnect from video-conference.

After the publication of the cause-list, the Registry may call any party and require to test the device or its connectivity. It is essential for the hearing of the case by video conference may be smoothly conducted;

After the publication of cause list, a WhatsApp group may be created by the Registry. The participants may raise any query related to video conferencing.

The parties may contact the mentioning Helpline Telephone Numbers 011-23381463 and 011-23111428, as per procedure mentioned through the Circular dated 07.04.2020 available on the website of Supreme Court of India.

ATTENTION: We have team of highly expert Supreme Court lawyers for all online legal services of e-filing in Supreme Court of India. Send us the details on mail for quick assessment.

Whether e filing in Supreme Court of India possible?

Yes, e-filing in Supreme Court of India is very much possible now and allowed.

How can I file a petition in Supreme Court of India?

The detailed process of e-filing in Supreme Court of India is described on the website of Supreme Court of India at the link at https://main.sci.gov.in/php/FAQ/5_6246991526434439183.pdf.

Whether hearing of case through Video Conferencing is possible now in Supreme Court of India?

Yes, after the e-filing of petition, the court can have the hearing of the court through video conferencing now.

Infamous Rape Cases in India 2020

By Team Legal Helpline India, March 23, 2020

The law related to rape cases in India 2020 explained in brief by an expert criminal lawyer for the understanding of a common man supported by some infamous rape cases in India.

Rape is an unlawful sexual activity typically involving sexual intercourse done forcibly or under threat of injury against a person’s will. Rape is a worldwide problem.

In India, Rape has been defined in Section 375 of IPC which contemplates various acts which can be termed as rape. This definition has gone several amendments and is now wider to cover various acts of rape.

Section 375 in the Indian Penal Code:

375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape .

The punishment for rape  is given under Section 376 of IPC which has undergone several changes through time.

Section 376 Punishment for rape:

(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,—

(a) being a police officer commits rape—

(i) within the limits of the police station to which he is appointed; or

(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or

(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or

(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or

(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or

(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or

(e) commits rape on a woman knowing her to be pregnant; or

(f) commits rape on a woman when she is under twelve years of age; or

(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

Explanation 1.—Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this sub-section.

Explanation 2.—“Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected woman or children or a widows’ home or by any other name, which is established and maintained for the reception and care of woman or children.

Explanation 3.—“Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.

For the understanding of a common man, Rape is when a person intentionally penetrates female’s vagina, anus or mouth with a penis, without her consent penetrates her vagina or anus with any part of the body other than a penis, or by using an object, without the person’s consent.

The overall definition of sexual or indecent assault is an act of physical, psychological and emotional violation in the form of a sexual act, inflicted on someone without her consent. It can involve forcing or manipulating someone to witness or participate in any sexual acts.

Not all cases of sexual assault involve violence, cause physical injury or leave visible marks. Sexual assault can cause severe distress, emotional harm and injuries which can’t be seen – all of which can take a long time to recover from. This is why we use the term ‘assault’, and treat reports just as seriously as those of violent, physical attacks.

In India, 1,27,800 rape cases are pending until 2017 and the conviction rate of rape is around 27%.

Rape is a social crime hence much hue and cry are made by society when any such case is reported.  Following are some of the infamous rape cases in India which lead to serious thoughts on the rape law and many protests in the society. 

SOME INFAMOUS RAPE CASES IN INDIA 2020:

  • November 1973: Aruna Shanbaug, a 26-year-old nurse in a Mumbai hospital, was attacked and raped by a ward attendant during her night shift by one Sohanlal Bhartha Walmiki, who sodomized and strangled her brutally leaving her in a coma. He was arrested and convicted but the victim Aruna Shanbaug remained in a vegetative state for more than 40 years and died in 2015.
  • 1990: Hetal Parekh, a 14-year-old schoolgirl, was raped and murdered by one Dhananjoy Chatterjee in Kolkata.  He was sentenced to death and hung in 2004. The case raised a lot of protests in society and remains in the minds of the people to date.
  • 1995: Bhanwari Devi,  who worked with the Women’s Development Project in Rajasthan, in 1992 was raped but the accused persons were freed by the court. This matter raised hue and cry and subsequently, a petition is filed in the Supreme Court, which leads to the Vishaka Guidelines being put into place, to protect women against sexual harassment at the workplace.
  • 1996: Priyadarshini Mattoo was found raped and strangled in her Delhi flat. Santosh Kumar Singh, a fellow law student, and son of a former senior police officer were sentenced to death, after being initially acquitted due to a lack of evidence and then re-tried following a public outcry.
  • Dec. 2012: Nirbhaya, a 23-year-old student is beaten and gang-raped on a moving bus in the capital New Delhi and later dies of her injuries. Five men and a juvenile are arrested – four of the men have been sentenced to death and one hanged himself during the trial. The juvenile was freed after completing three years in a reform home. All the convicts were hanged on 20/3/2020 at Tihar jail. This rape crime sparked large-scale protests in India and serious discussions on rape laws as a result of which rape law was amended and fast track cases were established. 
  • Jan. 2018: An 8-year-old Muslim girl is drugged, held captive in a temple and sexually assaulted for a week before being strangled and battered to death with a stone in Kathua in Jammu and Kashmir raising serious political, religious and social issues. Six men, including a Hindu priest and three police officers, were convicted of the crime. Three were given life sentences.
  • Jul. 2018: Eighteen men are charged in Chennai with repeatedly raping a 12-year-old girl over a seven-month period, sedating her with drugs and then taking her to vacant apartments in the block to assault her.
  • Oct. 2018: Catholic bishop Franco Mulakkal is arrested in Kerala after a nun accuses him of raping her repeatedly over two years. He has denied the charges.
  • July 2019: A young woman who accused Uttar Pradesh Legislator  Kuldeep Singh Sengar of raping her in 2017 subsequently she and her lawyer were critically injured in a highway collision when a truck hit the car in which they were traveling.  Sengar was subsequently convicted by the court.
  • Nov. 28, 2019: The charred remains of the veterinarian are found under a flyover near Hyderabad. Four men are arrested on suspicion of gang-rape and murder and were subsequently killed in an encounter when they were trying to escape from police custody.
  • Dec 5, 2019: A 23-year-old rape victim is set ablaze by a gang of men, including the alleged rapist, as she made her way to court to attend a hearing in the case, in Unnao district of Uttar Pradesh, police said.

Discussion on Rape laws in India 2020

The official data related to rape is compiled by the National Crime Records Bureau by the Indian Government. As most of the rape cases go unreported, the actual number of rape cases happening can not be determined but the records of the reported cases of rape show an increase in rape cases in recent times.

This can be due to the reason that the cases are reported to the police now with the strengthening of the law and order and social awareness.

A notable step by the law government is the creation of the National Database on Sexual Offenders (NDSO). It was launched on September 20, 2018, launched the National Database on Sexual Offenders (NDSO). The database contains entries of offenders convicted under charges of rape, gang rape, POCSO, and eve-teasing.

The portal as of now contains 440,000 entries of cases that have been reported since 2008. It’s managed by the National Crime Records Bureau. The database is accessible only to law enforcement agencies for investigation and monitoring purposes.

The rape laws in India 2020 are thus now stringent and effective keeping in view the various cultural and social communities but the paradox is its prosecution which has gone down since last several years thus indicating that more cases are registered but fewer cases being prosecuted. The policymakers need special attention to this aspect as it is indicative of some trend that needs to be deciphered.

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