30 Dec 2009

"Workmen" in today's context: Bombay High Court reexamines the law

In a recently delivered decision, the Bombay High Court has defined the meaning of 'workmen' in the context of industrial relations in the modern day context. The call for revival and rethink of the industrial disputes legislation in the country has been in vogue for long ever since the liberalization era redefined the parameters and symbolism associated with the working culture in which the archaic legislation were framed. The High Court in this recent decision has clarified and sought to adopt the meaning of workmen to define the contours of the term in a manner befitting the current era. 

The High Court was dealing with a challenge to the decision of an industrial tribunal which had directed Standard Chartered Bank to reinstate an employee in employment with back wages. It was argued in the High Court that since the said employee could not be considered as a workmen therefore the decision of the Tribunal could not be sustained. It was shown that the said employee had been employed in management cadre wherein the job description included “achieving allocated business targets, ensuring high quality customer service, ensuring external and internal compliance on all branch transactions, handling difficult customer situations and contributing to the overall achievement of business growth”. 

The High Court declared that it was settled law that a well settled principle of law that the burden lies on the person who asserts the status of a workman to establish with reference to the dominant nature of his / her duties that the work which is performed falls within one of the stipulated categories viz. manual, unskilled, skilled, technical, operational, clerical or supervisory. Thereon the High Court declared that a Personal Financial Consultant cannot be regarded as work of a clerical nature. The High Court inter alia declared as under;
On the contrary the work which was assigned to the First Respondent clearly shows that she was intrinsically associated with the provision of a high level of customer service to the customers of the bank. At one level the First Respondent constituted a public interface for the bank with its customers while at another level the First Respondent had to ensure that all the processes and mechanisms of the bank were duly complied with in relation to banking transactions. ... What the Court must have due regard to, however, is the overall nature of the duties and responsibilities that are attached to the job. The duties and responsibilities that were attached to the job of the First Respondent were not of a clerical nature. As an employee engaged in contributing to the business of the bank the First Respondent was recruited to perform duties which cannot be regarded of a clerical nature.
Virtual offices are now a reality and paperless transactions are no longer a novelty. Managerial organisation today is radically different from the preliberalization era. Tests of control which were appropriate to a society thirty years ago have become relics of an era which India has left behind in the annals of history. The law has kept pace with the times by recognizing that in order to determine whether a person is a workman under Section 2(s), contemporary notions of business cannot bestratified by notions of economic organisation developed for an era which is no more.
The fact that in an organizational structure the employee, in the course of the decision making process, is subject to checks and balances is not a matter which would establish that she / he is a workman within the meaning of Section 2(s). Modern forms of business in corporate organizations put into place a carefully crafted process of checks and balances. Rarely, if ever, would an employee have authoritarian control over business decisions. Employees are made subject to checks and balances both at the lateral and vertical level. Managerial decisions are subject to verification and approval. The fact that decisions of an employee are subject to verification or subject to a system of controls and balances does not establish that the employee is a workman within the meaning of Section 2(s). Managers do not become workmen because their decisions are structured by processes and approvals. Absolute autonomy is not the norm in managerial decision making. Nor does the law insist on absolute discretion or absolute autonomy for a person to be a manager. Basically the answer to the question must depend upon the dominant nature of the duties and responsibilities.

28 Dec 2009

Lack of truth in litigation: Rues the Supreme Court

Noting the woeful misrepresentation of facts made by a party, a recent decision of the Supreme Court emphatically asserts the degeneration which has taken places in the masses in this land of Buddha and Mahavira in as much as truthful conduct is concerned. The Court rued the fact that the citizens have resorted to hide or misstate the truth before the Courts and declared that such parties are not entitled to any relief/sympathy from the Court as under 
1. For many centuries, Indian society cherished two basic values of life i.e., `Satya' (truth) and `Ahimsa' (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of justice delivery system which was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has over-shadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. In last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.
2. In Hari Narain v. Badri Das AIR 1963 SC 1558, this Court adverted to the aforesaid rule and revoked the leave granted to the appellant by making the following observations: "It is of utmost importance that in making material statements and setting forth grounds in applications for special leave made under Article 136 of the Constitution, care must be taken not to make any statements which are inaccurate, untrue and misleading. In dealing with applications for special leave, the Court naturally takes statements of fact and grounds of fact contained in the petitions at their face value and it would be unfair to betray the confidence of the Court by making statements which are untrue and misleading. Thus, if at the hearing of the appeal the Supreme Court is satisfied that the material statements made by the appellant in his application for special leave are inaccurate and misleading, and the respondent is entitled to contend that the appellant may have obtained special leave from the Supreme Court on the strength of what he characterizes as misrepresentations of facts contained in the petition for special leave, the Supreme Court may come to the conclusion that in such a case special leave granted to the appellant ought to be revoked."

3. In Welcome Hotel and others v. State of Andhra Pradesh and others etc. AIR 1983 SC 1015, the Court held that a party which has misled the Court in passing an order in its favour is not entitled to be heard on the merits of the case.

4. In G. Narayanaswamy Reddy and others v. Governor of Karnataka and another AIR 1991 SC 1726, the Court denied relief to the appellant who had concealed the fact that the award was not made by the Land Acquisition Officer within the time specified in Section 11-A of the Land Acquisition Act because of the stay order passed by the High Court. While dismissing the special leave petition, the Court observed: "Curiously enough, there is no reference in the Special Leave Petitions to any of the stay orders and we came to know about these orders only when the respondents appeared in response to the notice and filed their counter affidavit. In our view, the said interim orders have a direct bearing on the question raised and the nondisclosure of the same certainly amounts to suppression of material facts. On this ground alone, the Special Leave Petitions are liable to be rejected. It is well settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. If he fails to do so and suppresses material facts, his application is liable to be dismissed. We accordingly dismiss the Special Leave Petitions."

5. In S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs. and others JT 1993 (6) SC 331, the Court held that where a preliminary decree was obtained by withholding an important document from the court, the party concerned deserves to be thrown out at any stage of the litigation.

6. In Prestige Lights Ltd. V. State Bank of India (2007) 8 SCC 449, it was held that in exercising power under Article 226 of the Constitution of India the High Court is not just a court of law, but is also a court of equity and a person who invokes the High Court's jurisdiction under article 226 of the Constitution is duty bound to place all the facts before the court without any reservation. If there is suppression of material facts or twisted facts have been placed before the High Court then it will be fully justified in refusing to entertain petition filed under Article 226 of the Constitution. This Court referred to the judgment of Scrutton, L.J. in R v Kensington Income Tax Commissioners (1917) 1 K.B. 486, and observed: "In exercising jurisdiction under Article 226 of the Constitution, the High Court will always keep in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the Court, then the Court may dismiss the action without adjudicating the matter on merits. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of Court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible."

7. In A.V. Papayya Sastry and others v. Government of A.P. and others, AIR 2007 SC 1546, the Court held that Article 136 does not confer a right of appeal on any party. It confers discretion on this Court to grant leave to appeal in appropriate cases. In other words, the Constitution has not made the Supreme Court a regular Court of Appeal or a Court of Error. This Court only intervenes where justice, equity and good conscience require such intervention.

8. In Sunil Poddar & Ors. v Union Bank of India (2008) 2 SCC 326, the Court held that while exercising discretionary and equitable jurisdiction under Article 136 of the Constitution, the facts and circumstances of the case should be seen in their entirety to find out if there is miscarriage of justice. If the appellant has not come forward with clean hands, has not candidly disclosed all the facts that he is aware of and he intends to delay the proceedings, then the Court will non-suit him on the ground of contumacious conduct.

9. In K.D. Sharma v. Steel Authority of India Ltd. And others (2008) 12 SCC 481, the court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the Writ Court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G. Jayshree and others v. Bhagwandas S. Patel and others (2009) 3 SCC 141.
Have a look at the decision.

Stamp duty payable on corporate amalgamation: Delhi High Court

In a recently delivered comprehensive decision, the Delhi High Court has declared that a scheme of amalgamation of companies is also an instrument in terms of the Stamps Act and therefore liable for payment of stamp duty. The Court in arriving at this conclusion extensively discussed the nature of amalgamation in terms of its implications on corporate legal personality and also examined the nature of transfer of interest which takes place between the corporate entities upon the amalgamation exercise. The High Court took note of the various decisions of the Supreme Court and High Court on the subject to conclude as under;

The order approving the scheme for amalgamation passed by the Company Court in exercise of jurisdiction under sub-section 2 of Section 394 which have the impact of transferring of all assets and liabilities including the property of the transferor company to the transferee company would be therefore exigible to stamp duty under the Indian Stamp Duty Act.
The Court further declared that;
an approved scheme of amalgamation amounts to a transfer inter-vivos between two companies who were juristic persons in existence at the time of passing of the order and sanctioning of the scheme whereby right, title and interest in the immoveable property of the transferor company are transferred to the transferee company. The transfertakes place in the present and is not postponed to any later date and is covered under the definition of conveyance under sub-section 10 of section 2 of the Stamp Act.

23 Dec 2009

Woman cannot be prosecuted for crime of rape: Supreme Court

Giving a literal meaning to the offence of 'rape' provided for under Section 375 and 376 of the Indian Penal Code, the Supreme Court has declared that a woman cannot be prosecuted for a crime of rape. The Supreme Court declared as under;

7. A bare reading of Section 375 makes the position clear that rape can be committed only by a man. The section itself provides as to when a man can be said to have committed rape. Section 376(2) makes certain categories of serious cases of rape as enumerated therein attract more severe punishment. One of them relates to "gang rape". The language of subsection (2)(g) provides that "whoever commits `gang rape" shall be punished etc. The Explanation only clarifies that when a woman is raped by one or more in a group of persons acting in furtherance of their common intention each such person shall be deemed to have committed gang rape within this subsection (2). That cannot make a woman guilty of committing rape. This is conceptually inconceivable. The Explanation only indicates that when one or more persons act in furtherance of their common intention to rape a woman, each person of the group shall be deemed to have committed gang rape. By operation of the deeming provision, a person who has not actually committed rape is deemed to have committed rape even if only one of the group in furtherance of the common intention has committed rape. "Common intention" is dealt with in Section 34 IPC and provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. "Common intention" denotes action in concert and necessarily postulates a prearranged plan, a prior meeting of minds and an element of participation in action. The acts may be different and vary in character, but must be actuated by the same common intention, which is different from same intention or similar intention. The sine qua non for bringing in application of Section 34 IPC that the act must be done in furtherance of the common intention to do a criminal act. The expression "in furtherance of their common intention" as appearing in the Explanation to Section 376(2) relates to intention to commit rape. A woman cannot be said to have an intention to commit rape. Therefore, the counsel for the appellant is right in her submission that the appellant cannot be prosecuted for alleged commission of the offence punishable under Section 376(2)(g).

No PIL on issues of economic policy: High Court

In an emphatic decision, the Bombay High Court declined to interfere on a public interest litigation declaring that no PIL would lie on the issue of economic policy. The petition had prayed for the following reliefs before the High Court;

(a) the issuance of an appropriate writ directing the Reserve Bank to transfer the amount lying with it in the Market Stabilization Scheme Account to the Consolidated Fund of India; (b) a direction to the Comptroller and Auditor General of India to audit the account of the Reserve Bank especially from the accounting year 2004-05 till 2007-08; (c) a direction to the Comptroller and Auditor General to estimate the profit or loss to the country in view of the depletion in the Currency and Gold Revaluation Account of the Reserve Bank and the interest on the Scheme paid over the years and to file a detailed report before this Court and to the President of India for being laid before both the Houses of Parliament.
In regard to the non-maintainability of PILs on such matters, the High Court declared as under;

13. Having examined the grievance that has been urged in the Petition, we have found no reason to grant the reliefs that have been sought before the Court. Before concluding, however, it would be necessary for this Court to define the parameters for judicial intervention in such cases. The parameters which operate in a case such as the present arise both on account of a recourse to legal proceedings being taken in the form of a public interest petition in the first place and the substantive scope of challenge, in the second place, involving as it does a matter which is in the realm of economic policy. The jurisdiction of the Court, when it is invoked in a petition filed in the public interest is exercised with a view to ensuring that there is no dereliction of constitutional or statutory duties by those who are vested with the discharge of such powers. In entertaining such a petition it would be inappropriate for the Court either to supplant the role and functioning of a constitutional authority or to substitute its judgment for the policy making authority or the discretion of a constitutional functionary. Litigation instituted in the public interest is directed towards ensuring governance in accordance with constitutional and statutory mandate. Public interest litigation cannot provide an avenue for substituted governance nor can the Court, in a democratic set up governed by separation of powers assume to itself the task of governance which the Constitution leaves to elected representatives or to expert bodies who are accountable to the collective wisdom of the legislature. The role of the Court is directed towards ensuring that the process of governance accords with the parameters which are laid down by the Constitution and by governing statutory requirements. Once the Court is satisfied that this has been so, there must be an element of deference particularly in matters involving technical expertise or policy making functions, upon which there is a conferment of power to constitutional or statutory authorities. That leads to the second facet of the matter. The consistent thread which underlies our constitutional jurisprudence is that in matters involving economic policy the Court must recognize that there is a wide area of discretion which rests in the executive. Both in the enunciation and in the implementation of economic policy the issues which arise – complex as they may be – are generally not amenable to the application of judicial standards. The law recognizes that there is a large field open for experimentation and for modification of policy in the light of experiences gained and perhaps from the failures reported. Dealing with economic problems cannot be a matter of scientific exactitude. There are successes achieved and, perhaps, failures despite good faith decisions. These in a democratic society are subject to accountability – accountability of the expert functionaries to Government and accountability of Government to Parliament and the people. Judicial learning over the last six decades which defers to the decisions that the Government may take in matters of economic policy is therefore based on a strong foundation. In approaching this case we have borne in mind both of these facets. It has become necessary for the Court to advert to them if only because there is a growing belief that every ill that plagues society can be brought before the Court in the form of a public interest petition. Moreover, rapidly changing economic circumstances and the complex problems of the day are liable to give rise to the belief that the Courts should intervene. The jurisdiction of the Court is exercised where there is a breach of a constitutional or statutory prescription. Absent such a breach the exercise of administration should be left to where it is intended to belong in a democratic set up based on the separation of powers.

21 Dec 2009

Website alone does not create jurisdiction: High Court

Whether the Court can exercise jurisdiction against a person on the ground that such person maintains a website which can be accessed within the jurisdiction of the court was the issue which faced the Delhi High Court in a recent decision. A suit was filed before the High Court for violation of trademark wherein the High Court noted "that neither the plaintiff nor the Defendants is located within the territorial jurisdiction of this court. The Plaintiff is a company having its registered office at Singapore whereas the Defendants 1 and 2 are at Hyderabad. Defendant no. 1 is the promoter of the Defendant no. 2 company." 

It was argued by the side of the plaintiff that "the Defendants have presence in Delhi through their website which is accessible in Delhi. It [was] further contended that the said website is not a passive website. It not only provides contact information but also seeks feedback and inputs from its customers through an interactive web-page. ... Further, ... the services of the Defendants are being offered to the customers in Delhi also because of the ubiquity, universality and utility of the features of the Internet and the World Wide Web and hence the cause of action has arisen within the jurisdiction of this Court.”

On these, the High Court laid the test as under;

42. This Court holds that jurisdiction of the forum court does not get attracted merely on the basis of interactivity of the website which is accessible in the forum state. The degree of the interactivity apart, the nature of the activity permissible and whether it results in a commercial transaction has to be examined. For the "effects" test to apply, the Plaintiff must necessarily plead and show prima facie that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the Plaintiff within the forum state. For the purposes of a passing off or an infringement action (where the plaintiff is not located within the jurisdiction of the court), the injurious effect on the Plaintiff‟s business, goodwill or reputation within the forum state as a result of the Defendant's website being accessed in the forum state would have to be shown. Naturally therefore, this would require the presence of the Plaintiff in the forum state and not merely the possibility of such presence in the future. Secondly, to show that an injurious effect has been felt by the Plaintiff it would have to be shown that viewers in the forum state were specifically targeted. Therefore the "effects" test would have to be applied in conjunction with the "sliding scale" test to determine if the forum court has jurisdiction to try a suit concerning internet based disputes.
58. We summarise our findings on the questions referred for our opinion as under:
Question (i): For the purposes of a passing off action, or an infringement action where the Plaintiff is not carrying on business within the jurisdiction of a court, in what circumstances can it be said that the hosting of a universally accessible website by the Defendants lends jurisdiction to such Court where such suit is filed (“the forum court”)?
Answer: For the purposes of a passing off action, or an infringement action where the Plaintiff is not carrying on business within the jurisdiction of a court, and in the absence of a long-arm statute, in order to satisfy the forum court that it has jurisdiction to entertain the suit, the Plaintiff would have to show that the Defendant “purposefully availed” itself of the jurisdiction of the forum court. For this it would have to be prima facie shown that the nature of the activity indulged in by the Defendant by the use of the website was with an intention to conclude a commercial transaction with the website user and that the specific targeting of the forum state by the Defendant resulted in an injury or harm to the Plaintiff within the forum state.
Question (ii): In a passing off or infringement action, where the defendant is sought to be sued on the basis that its website is accessible in the forum state, what is the extent of the burden on the Plaintiff to prima facie establish that the forum court has jurisdiction to entertain the suit?
Answer: For the purposes of Section 20 (c) CPC, in order to show that some part of the cause of action has arisen in the forum state by the use of the internet by the Defendant the Plaintiff will have to show prima facie that the said website, whether euphemistically termed as “passive plus” or “interactive”, was specifically targeted at viewers in the forum state for commercial transactions. The Plaintiff would have to plead this and produce material to prima facie show that some commercial transaction using the website was entered into by the Defendant with a user of its website within the forum state resulting in an injury or harm to the Plaintiff within the forum state.
Question (iii): Is it permissible for the Plaintiff to establish such prima facie case through “trap orders” or “trap transactions”?
Answer: The commercial transaction entered into by the Defendant with an internet user located within the jurisdiction of the forum court cannot possibly be a solitary trap transaction since that would not be an instance of “purposeful” availment by the Defendant. It would have to be a real commercial transaction that the Defendant has with someone not set up by the Plaintiff itself. If the only evidence is in the form of a series of trap transactions, they have to be shown as having been obtained using fair means. The Plaintiff seeking to establish jurisdiction on the basis of such trap transactions would have to aver unambiguously in the plaint, and also place along with it supporting material, to prima facie show that the trap transactions relied upon satisfy the above test

The High Court in this process under-took a stock-taking exercise of the decisions in the various courts of law. It  took note of the following decisions as reflective of the legal position abroad on the issue. In regard to the origination of law the High Court took note of the following;

United States
(A) Purposeful availment as a test
(i) International Shoe Co. v. Washington 326 U.S. 340 (1945)
(ii) Burger King Corp v. Rudzewicz 471 U.S. 462 (1985)
(iii) Asahi Metal Industries v. Superior Court 480 U.S. 102 (1987)
(iv) Inset Systems Inc. v. Instruction Set Inc. 937 F.Supp. 161 (D.Conn.1996)
(v) Bensusan Restaurant Corp. v. King, 937 F. Supp.295 (S.D.N.Y. 1996)
(vi) Ballard v. Savage 65 F.3d 1495 (1995)
(vii) CompuServe, Inc. v. Patterson, 89 F.3d 1257(6th Cir. 1996)
(viii) Maritz, Inc. v. CyberGold, Inc., 947 F.Supp. 1328 (E.D.Mo.) (1996)
(ix) Neogen Corp. v. Neo Gen Screening, Inc., 282 F.3d 883, 890 (6th Cir. 2002)
(B) "Zippo" sliding scale test
(i) Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119 (W.D.Pa.1997)
(ii) Cybersell, Inc. v. Cybersell. Inc. 130 F.3d 414 (1997)
(iii) Uberti v. Leonardo, 181 Ariz. 565
(iv) Desktop Technologies v. Colourworks Reproduction & Designs Inc 1999 WL 98572 (E.D.Pa. 1999)
(v) People Solutions v. People Solutions 2000 WL 1030619 (N.D.Tex., 2000)
(vi) Mink v. AAAA Development 190 F.3d 333 (5th Cir. 1999)
(vii) Winfield Collection v. McCauley 105 F.Supp.2d 746 (E.D.Mich,2000)
(C) The "Effects" test
(i) Louis Feraud Int’l SARL v. Viewfinder Inc 406 F Supp 2d 274 (SDNY 2005)
(ii) Calder v. Jones, 465 U.S. 783 (1984)
(iii) UJEF et LICRA v. Yahoo! Inc. et Yahoo France, Tribunal de Grande Instance de Paris, No RG:00/0538, May 22, 2000 and November 22, 2000
(iv) Remick v. Manfredy, 238 F.3d 248 (2001)
(v) Noonan v. Winston Comp., 135 F.3d 85, 91 (1998)
(vi) Revell v. Lidov, 317 F.3d 467 (5th Cir. 2002)
(vii) Digital Equipment Corp. v. Alta Vista Technology 969 F.Supp 456 (Mass., 1997)
(viii) Nissan Motor Co. v. Nissan Computer Corp.89 F. Supp. 2d 1154 (C.D. Cal.,2000)
(ix) Toys "R" US, v. Step Two, 318 F.3d 446 (2003)
28. To summarise the position in the US, in order to establish the jurisdiction of the forum court, even when a long arm statute exists, the Plaintiff would have to show that the Defendant “purposefully availed” of jurisdiction of the forum state by “specifically targeting” customers within the forum state. A mere hosting of an interactive web-page without any commercial activity being shown as having been conducted within the forum state, would not enable the forum court to assume jurisdiction. Even if one were to apply the „effects‟ test, it would have to be shown that the Defendant specifically directed its activities towards the forum state and intended to produce the injurious effects on the Plaintiff within the forum state.
(i) Morguard Investments Ltd. V. De Savoye, [1990] 3 SCR 1077
(ii) Pro-C Ltd. v. Computer City Inc. (2000) OJ No. 2823 (Ont.Sup.Ct.), 7 CPR (4th) 193
(iii) Patrick Desjean v. Intermix Media Inc. 2006 FC 1395
(iv) Muscutt v. Courcelles (2002) 213 DLR (4th) 577
 United Kingdom
(i) 1-800 Flowers Inc v. Phonenames [2002] FSR 12 CA
(i) Dow Jones & Company Inc. v. Gutnick, (2002) HCA 56 (10 December 2002)
(i) Casio India Co. Limited v. Ashita Tele Systems Pvt. Limited 2003 (27) PTC 265 (Del)
(ii) Rediff Communication Ltd. V. Cyber Booth, AIR 2000 Bombay 27
(iii) (India TV) Independent News Service Pvt. Limited v. India Broadcast Live Llc And Ors., 2007 (35) PTC 177 (Del.)

Murder versus Culpable Homicide: The distinction revisited

Murder (defined under Section 300) and culpable homicide (defined under Section 299) are two offences under the Indian Penal Code the distinction between which has always been perplexing to the law students. For their benefit, we are referring to a recently reported decision [Jagriti Devi v. State of H.P.] of the Supreme Court wherein these principles have been explained in extensio as under;
18. Section 299 and Section 300 IPC deals with the definition of culpable homicide and murder respectively. Section 299 defines culpable homicide as the act of causing death; (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death or (iii) with the knowledge that such act is likely to cause death. The bare reading of the section makes it crystal clear that the first and the second clause of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not intention. Both the expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e. mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of culpable homicide is said to have been committed. Section 300 IPC, however, deals with murder although there is no clear definition of murder provided in Section 300 IPC. It has been repeatedly held by this Court that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa. Section 300 IPC further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II. The aforesaid distinction between an act amounting to murder and an act not amounting to murder has been brought out in the numerous decisions of this Court.

19. In the case of State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382, this Court observed as follows at page 386: 

"12. In the scheme of the Penal Code, "culpable homicides" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304."
20. Placing strong reliance on the aforesaid decision, this Court in the case of Abdul Waheed Khan v. State of A.P., (2002) 7 SCC 175, observed as follows at page 184: 

"13. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.
14. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist-blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words "likely to cause death" occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury ... sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature.
15. For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature. Rajwant Singh v. State of Kerala is an apt illustration of this point.
16. In Virsa Singh v. State of Punjab Vivian Bose, J. speaking for the Court, explained the meaning and scope of clause (3). It was observed that the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly". First, it must establish quite objectively, that a bodily injury is present; secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further, and fourthly, it must be proved that the injury of the type just described made up of the three elements set out above was sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
17. The ingredients of clause "thirdly" of Section 300 IPC were brought out by the illustrious Judge in his terse language as follows: (AIR p. 467, para 12) "12. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 `thirdly'; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."
18. The learned Judge explained the third ingredient in the following words (at p. 468): (AIR para 16) "The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion."
19. These observations of Vivian Bose, J. have become locus classicus. The test laid down by Virsa Singh case for the applicability of clause "thirdly" is now ingrained in our legal system and has become part of the rule of law. Under clause thirdly of Section 300 IPC, culpable homicide is murder, if both the following conditions are satisfied i.e. (a) that the act which causes death is done with the intention of causing death or is one with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death viz. that the injury found to be present was the injury that was intended to be inflicted.
20. Thus, according to the rule laid down in Virsa Singh case even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.
21. Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons -- being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
22. The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of the court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages."
21. The aforesaid principles have been consistently applied by this Court in several decisions. Reference in this regard may be made to the decision of this Court in Ruli Ram v. State of Haryana, (2002) 7 SCC 691; Augustine Saldanha v. State of Karnataka, (2003) 10 SCC 472; State of U. P. v. Virendra Prasad, (2004) 9 SCC 37; Chacko v. State of Kerala, (2004) 12 SCC 269; and S. N. Bhadolkar v. State of Maharasthra, (2005) 9 SCC 71.

Suit maintainable against liaison office: High Court

In a recent decision the Delhi High Court has held that a party can be prosecuted in India even though it is operating through liaison office in India. The High Court was dealing with a suit for non-performance of various obligations where it was argued on behalf of the defendant that "since it only has a liaison office in New Delhi, this Court lacks territorial jurisdiction to try this suit in terms of Section 20 (a)" of the Code of Civil Procedure. It was argued that the Reserve Bank of India had allowed the defendant only to operate as a liaison office in India. The High Court, after taking note of the various decisions on the issue, held as under;
19. Section 20(a) CPC envisages that every suit shall be instituted in a court within the local limits of whose jurisdiction the Defendant “actually and voluntarily resides, or carries on business, or personally works for gain”. In the context of the present case, the Plaintiff has to show that the Defendant No.1 “carries on business” within the local limits of this Court‟s jurisdiction. 
The question really is whether in view of RBI‟s letter dated 18th February 1997 Defendant No.1 can be said to be carrying on business within the jurisdiction of the court. The said letter no doubt restrains Defendant No.1 “from negotiating any commercial activity and functioning purely as a liaison office without transacting any type of banking business”. However, in terms of the law explained in Re Oriel Ltd. and South India Shipping Corp. Ltd., it cannot be said that Defendant No.1 does not carry on business within the jurisdiction of this Court. The question whether service could be effected on Defendant No.1 by serving notice upon it at its office in New Delhi should, in the considered view of this Court, be answered in the affirmative. As pointed out in Re Oriel Ltd., one test is about the physical location of a business at a specific place also “a degree of permanence or recognisability as being a location in the office business”. On that parameter, it is safe to assume that there would certainly be a name board outside the representative office of Defendant No.1 at New Delhi and business enquiries are not precluded from being made at the said office. It cannot, therefore, be said that the Defendant No.1 does not carry on a business activity within the jurisdiction of this Court. Jurisdiction for the purposes of Section 20 (a) CPC is certainly attracted.

Life imprisonment means imprisonment for life: Supreme Court

The answer to the question, 'whether life imprisonment means one for life' seems to have no bearing on the series of cases which are raised before the Courts time and again. Even though convicted for life, more often than not most convicts seek the garb of the provisions of Code of Criminal Procedure to argue that they be released after 14 years of punishment. Even though the law to this regard is settled, there seems to be a flurry of widely publicized trial convicts who raise this legal plea.

The issue arises due to Chapter 32(E) of the Code of Criminal Procedure which deals with the power of the Government relating to 'Suspension, Remission and Commutation of sentences'. The two relevant provisions of the enactment in this regard, Section 433 and 433A provide that;

433. Power to commute sentence: The appropriate Government may, without the consent of the person-sentenced commute-
(a) A sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);
(b) A sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;
(c) A sentence of rigorous imprisonment for simple imprisonment for any term to which that person might have been sentenced, or for fine;
(d) A sentence of simple imprisonment, for fine.
433A. Restriction on powers of remission or commutation in certain cases: Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishment provided by laws or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.
It is on the basis of these provisions more often than not most convicts are able to get their sentence for life commuted upto 14 years. It is thus (though wrongly) also said that a sentence for life means a sentence of 14 years. The correct law is, however, otherwise. The Supreme Court in 2005 itself declared that a sentence of life imprisonment means imprisonment for life.

In a petition filed by a convict (who had served 21 years imprisonment) it was argued that he be released. He even argued that his further detention was illegal and he compensated for having been imprisoned too long. The Supreme Court, in no less categorical terms, set aside the plea and declared the law as under;
The Prisons' Rules are made under the Prisons Act and the Prisons Act by itself does not confer any authority or power to commute or remit sentence. It only provides for the regulation of the prisons and for the terms of the prisoners confined therein. Therefore, the West Bengal Correctional Services Act or the West Bengal Jail Code do not confer any special right on the petitioner herein. 
In Godse's case (supra), the Constitution Bench of this Court held that the sentence of imprisonment for life is not for any definite period and the imprisonment for life must, prima facie, be treated as imprisonment for the whole of the remaining period of the convict person's natural life. It was also held in paragraph 5 as follows:

" ..It does not say that transportation for life shall be deemed to be transportation for twenty years for all purposes; nor does the amended section which substitutes the words "imprisonment for life" for "transportation for life" enable the drawing of any such all-embracing fiction. A sentence of transportation for life or imprisonment for life must prime facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life."
Summarising the decision, it was held in para 8 as under:
"Briefly stated the legal position is this : Before Act XXVI of 1955 a sentence of transportation for life could be undergone by a prisoner by way of rigorous imprisonment for life in a designated prison in India. After the said Act, such a convict shall be dealt with in the same manner as one sentenced to rigorous imprisonment for the same term. Unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison. The rules framed under the Prisons Act enable such a prisoner to earn remissions ordinary, special and State and the said remissions will be given credit towards his term of imprisonment. For the purpose of working out the remissions the sentence of transportation for life is ordinarily equated with a definite period, but it is only for that particular purpose and not for any other purpose. As the sentence of transportation for life or its prison equivalent, the life imprisonment, is one of indefinite duration, the remissions so earned do not in practice help such a convict as it is not possible to predicate the time of his death. That is why the rules provide for a procedure to enable the appropriate Government to remit the sentence under S. 401 of the Code of Criminal Procedure on a consideration of the relevant factors, including the period of remissions earned. The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under S. 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release."
We are bound by the above dicta laid down by the Constitution Bench and we hold that life imprisonment is not equivalent to imprisonment for fourteen years or for twenty years as contended by the petitioner.

Have a look at the decision

In fact it is in the light of this legal position (that even though the law provides for imprisonment for the full life-time of the law the Government may commute the sentence after 14 or 20 years), that the Supreme Court has begun a new trend of imposing mandatory sentences. For example, in this recent decision the Supreme Court imposed a sentence of 35 years on the accused observing thus;

21. That leaves us with a question as to what sentence should be passed. Ordinarily, it would be the imprisonment for life. However, that would be no punishment to the appellant/accused, as he is already under the shadow of sentence of imprisonment for life, though he has been bailed out by the High Court. Under the circumstance, in our opinion, it will be better to take the course taken by this Court in the case of Swamy Shraddananda @ Murly Manohar Mishra v. State of Karnataka [AIR 2008 SC 3040], where the Court referred to the hiatus between the death sentence on one part and the life imprisonment, which actually might come to 14 years' imprisonment. In that case, the Court observed that the convict must not be released from the prison for rest of his life or for the actual term, as specified in the order, as the case may be. We do not propose to send the appellant/accused for the rest of his life; however, we observe that the life imprisonment in case of the appellant/accused shall not be less than 35 years of actual jail sentence, meaning thereby, the appellant/accused would have to remain in jail for minimum 35 years.
The Supreme Court in another recent case has traced the history of how the concept of life imprisonment came to be one (wrongfully) being understood as one confined to 14 years of actual punishment. The decision delineates the same as under;
6. In Dalbir Singh and others vs. State of Punjab [(1979) 3 SCC 745], three Judges of this Court had occasion to consider the awarding of death penalty. Following the decision in the case of Rajendra Prasad vs. State of U.P. [(1979) 3 SCC 646], V.R. Krishna Iyer and D.A. Desai, JJ, observed that life imprisonment strictly means imprisonment for the whole of the man's life, but in practice amounts to incarceration for a period between 10 and 14 years which may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large.
7. In State of Punjab and others vs. Joginder Singh and others [(1990) 2 SCC 661], which was heard along with three other matters, this Court was called upon to consider the relevant provisions of the Manual for Superintendence and Management of Jails in Punjab. Considering the grant of remissions and commutations granted in exercise of power under Sections 432 and 433 Cr.P.C., this Court held that such schemes have been introduced to ensure prison discipline and good behaviour and not to upset sentences. If the sentence is of imprisonment for life, ordinarily the convict has to pass the remainder of his life in person, but for remission and commutations granted in exercise of the aforesaid powers. Even in such cases, Section 433-A of the Code or the executive instructions of 1976 do not insist that the convict pass the remainder of his life in prison but merely insists that he shall have served time for at least 14 years. 
8. The next decision to which we may refer in this regard is that of the Constitution Bench in the celebrated case of Maru Ram vs. Union of India & Ors. {(1981) 1 SCC 107}, which was a writ petition under Article 32 of the Constitution and was heard along with several other writ petitions on the same issue, namely, the length of imprisonment of a convict in respect of an offence carrying a life sentence, in view of the amended provisions of Section 433-A Cr.P.C., which was introduced into the Code by the Amendment Act of 1978. By the said Amendment, a full 14 year term of imprisonment was made mandatory for prisoners sentenced to life imprisonment and those who were sentenced to death, but the sentence was commuted to life imprisonment under Section 433 Cr.P.C. The Constitution Bench held that Section 302 IPC or other like offence fixes the sentence to be life imprisonment and 14 years' imprisonment under Section 433A is never heavier than the life term. Remission vests no right to release when sentence is life imprisonment. No greater punishment is inflicted by Section 433A than the law applicable to the crime. Nor is there any vested right to remission cancelled by compulsory 14 year jail life since a life sentence is a sentence for life. The Constitution Bench repelled the challenge to the vires of Section 433A and, inter alia, affirmed its supremacy over the remission rules and short sentencing statement made by the various States. Following Godse's case (supra), the Constitution Bench held that imprisonment for life lasts until the last breath and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by the Government. One other important observation that was made is that Section 433A does not forbid parole or other release within the 14 year span.
9. In the case of Ashok Kumar vs. Union of India [(1991) 3 SCC 498], together with the interpretation of Section 433-A of the Code, a Three Judge Bench of this Court also had occasion to consider the provisions of Sections 45 and 57 of the Indian Penal Code. The Hon'ble Judges were of the view that the provisions of Section 57 were to be reckoned as 20 years only for the purpose of working out the fraction of the terms of imprisonment the convict had already undergone. Their Lordships also held that the expression "imprisonment for life" would have to be read in the context of Section 45 IPC. Read in the light of Section 45, the aforesaid expression would ordinarily mean imprisonment for the full or complete span of life. In that context it was mentioned in Godse's case (supra) that Section 57 of the Indian Penal Code has no real bearing on the question raised and only for the purpose of calculating fractions of terms of punishment, the Section provides that transportation for life shall be for 20 years for all purposes. 
10. The question of premature release cropped up in the case of Laxman Naskar vs. Union of India [(2000) 2 SCC 595], which was heard with several other writ petitions. It was held that although there was no right of premature release in the convict when rules or guidelines have been framed in that behalf, the convict has a right to have his case put up before the prison authorities for considering the same in exercise of powers under Article 161 in accordance with those rules, schemes or guidelines. In that case, Their Lordships were dealing with a situation where all the "life convicts" were claiming premature release under the relevant provisions of the West Bengal Jail Code. Their Lordships were not only dealing with Articles 161, 21 and 32 of the Constitution, but even the provisions of paragraphs 591(4) and 591(2) of the West Bengal Jail Code. Applying the provisions of the West Bengal Jail Code relating to grant of premature release, this Court was of the view that all the life convicts in the said case had completed continued detention of 20 years including remission earned. On receipt of the said report, it was observed that life sentence is nothing less than life-long imprisonment and by earning remissions a life convict could not pray for premature release before completing 20 years of imprisonment, including remission earned. Having held as above, this Court went on further to hold that if according to the Government policy/ instructions in force at the relevant time the life convict had already undergone the sentence for the period mentioned in the policy/instructions, then the only right which a life convict could be said to have acquired is the right to have his case put up by the prison authorities in time before the authorities concerned for exercise of power under Article 161 of the Constitution. That will have to be done consistent with the legal position and the Government policies/instructions prevalent at that time.
11. In the case of Subash Chander vs. Krishan Lal and others [(2001) 4 SCC 458], along with the awarding of the death sentence, the period of imprisonment in case of a life sentence or a death sentence commuted to a life sentence also came to be considered. It was observed that when two views were possible about the quantum of sentence, the view which favoured the grant of life in comparison with death is generally accepted for the exercise of the powers by the High Court in commuting the death sentence. It was further observed that a "life imprisonment" means imprisonment for whole of the remaining period of the convicted person's natural life, unless the appropriate Government chose to exercise its discretion to remit either the whole or a part of the sentence under Section 401 Cr.P.C.
12. A slightly different view was expressed by this Court in the case of Shri Bhagwan vs. State of Rajasthan [(2001) 6 SCC 296]. This Court, after considering the facts and circumstances of the case, reiterated that ordinarily "imprisonment for life" means sentence of imprisonment for whole of the remaining period of the convicted person's natural life and that the rules framed under the Prisons Rules do not substitute a lesser sentence for a sentence for life.
13. The debate as to what would constitute "life imprisonment" once again surfaced in the case in the case of Mohd. Munna vs. Union of India [(2005) 7 SCC 417], which was disposed of along with another writ petition filed by one Kartick Biswas, where it was reiterated that life imprisonment was not equivalent to imprisonment for 14 years or 20 years. Life imprisonment means imprisonment for the whole of the remaining period of the convicted person's natural life. This Court observed that there was no provision either in the Indian Penal Code or in the Criminal Procedure Code, whereby life imprisonment could be treated as either 14 years or 20 years without there being a formal remission by the appropriate Government. The contention that having regard to the provisions of Section 57 of the Code of Criminal Procedure a prisoner was entitled to be released on completing 20 years of imprisonment under the West Bengal Correctional Services Act, 1992, and the West Bengal Jail Code, was rejected following the decision in Godse's case (supra).
14. In a more recent case, Swamy Shraddananda vs. State of Karnataka [(2008) 13 SCC 767], this Court was called upon to consider as to what would constitute "life imprisonment" in a case where death sentence was commuted to life sentence. Swamy Shraddananda was convicted under Section 302 and 201 IPC and was sentenced to death for the offence under Section 302 IPC. In appeal the High Court affirmed the conviction and the death sentence awarded to the appellant by the learned 25th City Sessions Judge, Bangalore City and accepted the reference made by the trial Court without any modification in the conviction or sentence. The matter then travelled to this Court and again came up for disposal before a Bench of three Judges. While one of the learned Judges took the view that the appellant deserved nothing but death, the others made it clear that life imprisonment, rather than death, would serve the ends of justice. But the Hon'ble Judges also made it clear that the appellant would not be released from prison till the end of his life. Having examined various decisions on the point which have also been referred to hereinabove, the Hon'ble Judges substituted the death sentence given to the appellant by the Trial Court and confirmed by the High Court with imprisonment for life with a direction that the convict would not be released from prison for the rest of his life.
15. What ultimately emerges from all the aforesaid decisions is that life imprisonment is not to be interpreted as being imprisonment for the whole of a convict's natural life within the scope of Section 45 of the aforesaid Code. The decision in Swamy Shraddananda's case (supra) was taken in the special facts of that case where on account of a very brutal murder, the appellant had been sentenced to death by the Trial Court and the reference had been accepted by the High Court. However, while agreeing with the conviction and confirming the same, the Hon'ble Judges were of the view that however heinous the crime may have been, it did not come within the definition of "rarest of rare cases" so as to merit a death sentence. Nevertheless, having regard to the nature of the offence, Their Lordships were of the view that in the facts of the case the claim of the petitioner for premature release after a minimum incarceration for a period of 14 years, as envisaged under Section 433-A Cr.P.C., could not be acceded to, since the sentence of death had been stepped down to that of life imprisonment, which was a lesser punishment.
16. On a conjoint reading of Sections 45 and 47 of the Indian Penal Code and Sections 432, 433 and 433A Cr.P.C., it is now well established that a convict awarded life sentence has to undergo imprisonment for at least 14 years. While Sections 432 and 433 empowers the appropriate Government to suspend, remit or commute sentences, including a sentence of death and life imprisonment, a fetter has been imposed by the legislature on such powers by the introduction of Section 433A into the Code of Criminal Procedure by the Amending Act of 1978, which came into effect on and from 18th December, 1978. By virtue of the nonobstante clause used in Section 433A, the minimum term of imprisonment in respect of an offence where death is one of the punishments provided by laws or where a death sentence has been commuted to life sentence, has been prescribed as 14 years. In the various decisions rendered after the decision in Godse's case (supra), "imprisonment for life" has been repeatedly held to mean imprisonment for the natural life term of a convict, though the actual period of imprisonment may stand reduced on account of remissions earned. But in no case, with the possible exception of the powers vested in the President under Article 72 of the Constitution and the power vested in the Governor under Article 161 of the Constitution, even with remissions earned, can a sentence of imprisonment for life be reduced to below 14 years. It is thereafter left to the discretion of the concerned authorities to determine the actual length of imprisonment having regard to the gravity and intensity of the offence.
Have a look at the decision.

Countering International Tax Evasion: A stock-taking by OECD

In a recently released report entitled Overview of the OECD’s Work on Countering International Tax Evasion, the OECD has undertaken a stock-taking exercise on its work on the politically ticklish issue of International Tax Evasion. It inter-alia states that;

The Report shows that real progress has been made, both in terms of how widely the standards are accepted and the extent to which they have been implemented. Nonetheless, a great deal of work remains to make sure that all jurisdictions accept these principles, and to guarantee that jurisdictions that have made a commitment to implement the standard now follow through. The Global Forum will have to adapt to these new demands by providing a monitoring process that takes all relevant factors into account.
The Report takes into account the veracity of the measures adopted by the various jurisdictions and then prepares a report card to classify them on the basis of the diligence with which the various countries have pursued the demands for installing in place a system which avoids tax evasion at an international plane. Overall, the report provides interesting insights on the issue.

Prudential regulation and competition in financial markets: Latest from OECD

In a recent paper, titled "Prudential Regulation and Competition in Financial Markets" the Organisation for Economic Cooperation and Development (OECD) has written extensively on the aspect of Prudential regulation and competition in financial markets. The abstract of the paper states as under;

This paper examines how a range of stability-oriented regulatory policies for banking and insurance are related to selected stability and competition outcomes in these sectors. Based on survey information on financial market regulation, policy indicators for eight areas of prudential banking regulation are constructed, in addition to indicators for the insurance sector. Despite incomplete information on some areas that turned out to be important in the context of the recent financial crisis, the indicators correlate well with different measures of financial stability, both during the recent crisis and beyond. Furthermore, the results do not support the view that there is a general trade-off between stability-oriented regulatory policies and competition in banking and insurance. Only few trade-offs are identified, with some areas of prudential regulation – most notably the strength of the banking supervisor – even associated with greater competition in banking. Overall, the results suggest that stability-enhancing regulatory reform does not necessarily come at the expense of competition. Although much of the analysis is based on pre-crisis regulatory settings which have been undergoing substantial change, the empirical evidence in this paper can provide useful insights in the context of ongoing financial regulatory reform.

20 Dec 2009

Right of representation by Counsel of choice: A new dimension

In a recent case, dealing with the confirmation of a death sentence, the High Court of Delhi stated in no unclear terms that the right to be represented and defended by an able counsel was a well-established right in the common law jurisdiction. The High Court inter-alia observed as under;
107.     None can belittle the right of every accused to be fairly and adequately represented in a criminal trial, especially where capital sentence is involved. Counsels play an important role in the resolution of issues in an adversarial system. Every accused has a right to meet the case of the prosecution on even terms. Following observations of the U.S. Supreme Court in the decision reported as Jon Richard Argersinger v Raymond Hamlin (1972) 407 US 25 as approved by our Supreme Court in the decision reported as Madhav Hayawadanrao Hoskot v State of Maharashtra (1978) 3 SCC 544 epitomize the quintessence of this processual facet:
         " The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate or those of feeble intellect. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries but it is in ours. From the very beginning our State and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him."

108.      Fair assessment of a counsel's performance has many inherent difficulties. Different counsels would defend not in the same way. No mechanical rule can be applied. To our mind, the test in the decision of US Supreme Court reported as Strickland v Washington (1984) 466 US 68 as laid down by Justice O'Connor is the one to be applied; as extracted from the head note:- 

A.          The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct fall within the wide range of reasonable professional assistance.
B.          With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional efforts, the result of the proceeding would have been different. A Reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.
C.       A number of practical considerations are important for the application of the standards set forth above. The standards do not establish mechanical rules; the ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. A court need not first determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed."