Gang Rape, Punishment & Rules of Evidence in the Context of The Criminal Law (Amendment) Act, 2013

When a woman is raped by one or more of a group of persons, acting in furtherance of their common intention, each of such person is deemed to have committed gang rape (Section 376 D, IPC).

Punishment for rape: Section 376 of Indian Penal Code (in short IPC) talks about the punishment for rape. The minimum punishment for rape is rigorous imprisonment of either description for a term which shall not be less than 7 years, but which may extend to imprisonment for life, and shall also be liable to fine(Section 376 (1), IPC) and that for custodial rape, rape on a pregnant woman, rape on a woman under 16 years of age is rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine(Section 376(2), IPC ).

Further Section 376A, IPC says that whoever, commits an offence punishable under sub-section (1) or sub-section (2) of Section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death.

Punishment for gang rape under Section 376D, IPC is rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Provided further that any fine imposed under this Section shall be paid to the victim.

Punishment for repeat offenders is given under Section 376E, IPC which reads as whoever has been previously convicted of an offence punishable under Section 376 or Section 376A or Section 376D and is subsequently convicted of an offence punishable under any of the said Sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, or with death.    

Rules of evidence:- Under the Indian Evidence Act,1872, ‘Evidence’ means and include all statements which the Court permit or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59, all facts, except the contents of documents, may be proved by oral evidence. Section 134 says- no particular number of witnesses shall in any case be required for the proof of any fact. Section 118 then tells us who may give oral evidence. According to that Section all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in case of an accomplice Section 133 provides that he shall be competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However illustration (b) to Section 114, which lays down a rule of practice, says that the Court ‘may’ presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), Courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Section 133 and 114, illustration (b).

A woman who has been raped is not an accomplice and therefore she cannot be put on par with an accomplice. Thus, for a conviction for rape, corroboration of the testimony of the raped woman is not necessary. In Bharwada Bhogibhai Hirjibhai vs. State of Gujarat, 1983 Cr LJ 1096, the Gujarat High Court observed- corroboration is not the sine qua non for a conviction in a rape case.  As a rule of prudence, the Court normally looks for some corroboration of her testimony so as to satisfy its conscience that she is telling the truth and that the person accused of rape has not been falsely implicated. 

Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence; unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation. 

The circumstances in which the corroboration of the testimony of the victim of a rape would be necessary have been explained in State of Maharashtra vs. Chandraprakash Kewal Chand Jain AIR 1990 SC 658. The Supreme Court observed: to insist on corroboration except in rarest of rare cases is to equate a woman who is a victim of lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated.

In State of Punjab vs. Gurmit Singh and others, 1996 Cr LJ 1728, the Apex Court observed: the testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases, amounts to adding insult to injury. Why should the evidence of a girl or a woman, who complains of rape or sexual molestation, is viewed with doubt, disbelief or suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in occurrence, which is not found to be self-inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration, notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape.

The importance of medical evidence has been explained by the Supreme Court in Prithi Chand vs. State of H.P, AIR 1989 SC 702. If the evidence of victim does not suffer any basic infirmity, and, the probability-factor does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected, to be forthcoming. Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is likelihood of her having leveled such an accusation on account of the instinct of self-preservation or when the probability-factor is found to be out of tune. 

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Identification of person arrested : Section 54-A Cr PC

Section 54-A of the Code of Criminal Procedure, 1973 empowers the Court to direct specifically the holding of the identification of the arrested person at the request of the prosecution.

Section 54-A of the Code of Criminal Procedure ( in short Cr PC ) reads as follows: 

Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction, may on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit.

Further, Section 53-A of the Code of  Criminal Procedure talks about examination of person accused of rape by medical practitioner which reads as follows:

(1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:-
(i)  the name and address of the accused and of the person by whom he was brought,
(ii)  the age of the accused,
(iii)  marks of injury, if any, on the person of the accused,
(iv)  the description of material taken from the person of the accused for DNA profiling, and
(v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

Explanation of the term 'examination' and 'registered medical practitioner' as it appeared in the Section 53 of the Code of Criminal Procedure are as follows: 

(a) 'examination' shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.

(b) 'registered medical practitioner' means a medical practitioner who possess any medical qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956 and whose name has been entered in a Medical Register.

Relevancy of 'identification' is given under Section 9 of the Indian Evidence Act, 1872.

The object of conducting a 'test identification parade' is two fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence.

Test identification parade must be held at earliest possible opportunity with necessary safeguards and precaution. At the parade people with similar height and features should be mixed up with the accused in proportion of not less than 1 to 9. Magistrate should also take care that there is no occasion for any police officer to be present at the parade to prompt the witness.

The identification parades belong to the stage of investigation and are essentially governed by the Section 162 of the Code of Criminal Procedure. Where an accused himself refuses to participate in a test identification parade, in such case, it is not open to him to contend that the statement of the eye-witnesses made for the first time in Court, wherein they specifically point towards him as a person who had taken part in the commission of crime should not be relied upon ( Munna vs. State AIR 2003 SC 3805 ).

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Attempts to commit Offences : Section 511, IPC.

The word 'attempt' is not defined in the Indian Penal Code. According to Oxford Dictionary 'attempt' means 'earnest and conscientious activity intended to do' or 'accomplish something'.

Every commission of a crime has three stages

1. Intention to commit it;
2. Preparation for its commission; and
3. A successful attempt.

If the attempt to commit a crime is successful, then the crime itself is committed; but where the attempt is not followed by the intended consequences, Section 511 of the Indian Penal Code ( in short IPC ) applies which is read as follows:

Section 511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.- Whoever attempts to commit an offence punishable by this Code with imprisonment for life or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both. 

Ingredient of Section 511  

The ingredient of Section 511 are

1. Offence punishable with imprisonment for life or imprisonment;
2. Does any act towards the commission of the offence;
3. No express provision is made by the Code for the punishment of such attempt.

Attempt is the direct movement towards the commission after the preparation are made. Mere intention to commit a crime, not followed by any act, does not constitute an offence. Only such attempts are punishable under Section 511 for which no express provision is made by the Code.

Section 511 of the Indian Penal Code is a general section that makes punishable all attempts to commit offences punishable with imprisonment for life or imprisonment excepting those punishable with death or with fine only. Section 511, IPC provides for punishment for an attempt to commit an offence under the Penal Code. The very policy underlying in Section 511, IPC seems to be for providing it as a residuary provision. It does not apply to offence under special or local laws.

In Satvir Singh vs. State of Punjab AIR 2001 SC 2828, it was observed that Section 511 of the Indian Penal Code makes attempt to commit an offence punishable. The offence attempted should be one punishable by the Code with imprisonment. The conditions stipulated in the provision for completion of the said offence are- (i) the offender should have done some act towards commission of the main offence; (ii) such attempt is not expressly covered as a penal provision elsewhere in the Code. Thus attempt on the part of the accused is sine qua non for the offence under Section 511, IPC. If the act of the accused asking his wife/victim to go and commit suicide had driven her to proceed to the railway track for ending her life then it is expressly made punishable under Section 498A of the IPC. Section 498A, IPC makes cruelty as a punishable offence. One of the categories included in the Explanation to the said Section (by which the word cruelty is defined) is thus: (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; when it is so expressly made punishable the act involved therein stands lifted out of the purview of Section 511, IPC.

In Abhayanand Mishra vs. State of Bihar AIR 1961 SC 1698, the appellant applied to the Patna University for permission to appear at the 1954 M.A. Examination in the English as a private candidate representing that he was a graduate having obtained his B.A. degree in 1951 and that he had been teaching in a certain school. He attached bogus certificates in this regard. The University gave the permission and issued admit-card. In the meantime, however, the University came to know about the forged application of the applicant.

The issue before the Court was whether appellant was guilty of an 'attempt to cheat' the University, under Section 415, IPC, in as much as he, by making false representation, deceived the University and induced the authorities to issue admit-card. The arguments on behalf of the appellant was that what he did was just a preparation and not an attempt to cheat; further, admit-card was not property and had no pecuniary value in itself.

The Apex Court observed that a personal commits the offence of 'attempt to commit a particular offence' when (i) he, intends to commit that particular offence; and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence.

The Court held that appellant did deceived the University, as a dishonest concealment of facts is a deception and thus cheating under Section 415, IPC. Admit-card is a 'property' as it has immense value to a candidate. It is not true that appellant did not gone beyond the stage of preparation. The preparation was complete when he had prepared the application for the purpose of submission to the University. The moment he dispatched it, he entered the realm of attempting to commit the offence of cheating. He did succeed in deceiving the University and inducing it to issue the admit-card. He just failed to get it and sit for the examination because something beyond his control took place inasmuch as the University was informed about his being neither a graduate nor a teacher.

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Anticipatory Bail : Section 438, Cr.P.C., 1973.

The term anticipatory bail implies a direction to release a person on bail issued even before the person is arrested. The necessity of introduction of Section 438 of the Criminal Procedure Code was arises mainly because sometimes influential person try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

A direction under Section 438 of Criminal Procedure Code was intended to confer conditional immunity from actual touch or confinement of body implicit in the mode of arrest contemplated under Section 46(1) of the Cr.P.C. Section 438 confers on the High Court and the Court of Session the power to grant anticipatory bail if the applicant has reason to believe that he may be arrested on an accusation of having committed "a non-bailable offence".

The provisions of Section 438 in the Cr.P.C. are in the nature of an exception and while construing such a provision the Court ought not to stretch it beyond the plain meaning of the words employed in the said Section.

Section 438- Direction for grant of bail to person apprehending arrest-
(1) where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely 
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested,
either reject the application forthwith or issue an interim order for the grant of anticipatory bail;
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.

(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.

(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

In Gurbaksh Singh Sibbia and others vs. State of Punjab (AIR 1980 SC 1632), the Supreme Court has laid down some guidelines regarding discretion in granting anticipatory bail some of which are as follows-

(i) The use of the expression 'reason to believe' in section 438(1) indicates that Court grants relief only being satisfied on objective material's examination;

(ii) Filing of FIR is not a condition precedent. The provisions for the anticipatory bail in section 438 of the Code applies even when there is no 'first information report' and no case for commission of 'a non-bailable offence' has been registered against a person. If a person has 'reason to believe' that he may be arrested on an accusation having committed 'a non-bailable offence', although no first information report was filed against him he may appear before the Court and apply for an order for his release on bail in the event of his arrest.

(iii) Bail to be effective till the conclusion of trial. Where order granting anticipatory bail is confirmed by concerned Court (High Court or Court of Session), such benefit would generally be enjoyed by applicant until his trial is not concluded.

(iv) Legally it is possible to pass an ex parte order to anticipatory bail but ordinarily an order of anticipatory bail should not be passed without issuing notice to the prosecution and giving it an opportunity to oppose the application for anticipatory bail.

Further rejection of an application for grant of anticipatory bail by Court of Session, not dis-entitled person to move High Court.



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Bail:Special power of High Court/Court of Session

What is bail?
Bails means the security taken from a person to appear on a fixed date before a Court. According to Concise Oxford Dictionary, bail is define as security for the appearance of prisoner on giving which the accused is released pending trail.

Bail has not been defined under the Code of Criminal Procedure, 1973.
Section 439(1) Cr.P.C. empowers High Court or Court of Session special powers regarding bail, which is read as
'A High Court or Court of Session may direct-
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.'

The powers of the High Court or Court of Session are considerably wider than the powers of the Magistrate in section 437 of the Cr.P.C.
Under section 439, no distinction has been made between the various kinds of offences for the purpose of granting of bail, and bail can be given even if the offence is most serious in character. The discretion to grant bail given to the High Court and the Court of Session under section 439 is not fettered in terms by the restrictions mentioned in section 437, but, on principle, these restriction should equally govern the exercise of the discretion by them under section 439.

Though there is no specific provision for appeal against the orders refusing to grant bail under section 436(1), the High Court or Court of Session can be moved under section 439(1) for bail. It may be noted that the lower court should be moved first in the matter of bail, because any expression of opinion by the superior court is likely to prejudice the trail in the lower court. Therefore, only in exceptional or special circumstances an application for bail may be directly made to the High Court. It is well established that no person accused of an offence can move the court for bail under section 439, Cr.P.C. unless he is in custody.




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Judicial Review of Administrative Action

What is judicial review?

Black's Law Dictionary defines judicial review as "a court's power to review the actions of other branches of government, especially the court's power to invalidate legislative and executive actions as being unconstitutional".

In India, this power is exercised by the Supreme Court and High Courts through writs of certiorari, prohibition, mandamus, quo warranto and habeas corpus and also through the exercise of power under Articles 136 and 227 of the Constitution.

The Supreme Court, may issue writs under Article 32 of the Constitution for enforcement of Fundamental Rights and under Article 139 for enforcement of rights other than Fundamental Rights, while High Courts,  may issue writs under Article 226.

Jurisdiction vested in the Supreme Court under Article 136 is a special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed, or made by any court or tribunal in the territory of India.

Jurisdiction vested in the High Court under Article 227 is a revisional jurisdiction.

What is Writ? 

A Writ is essentially a legal, written document issued by a court ordering someone to take the specified action or prohibiting a specified action.
According to Britannica Online Encyclopedia, writs began to be used in judicial matters by the Norman Kings, who developed set formulas for them. The most important were original writs, for beginning actions; in many instances they served much the same purpose as the modern summons. They were issued to the defendant, requiring that he make amends or else appear in court.

Writ of Certiorari (sersh-oh-rar-ee).

A writ of Certiorari (Latin: "to be informed") is an order from an appellate court to a lower court to send the records for a specified case under review.
According to NOLO's Plain English Law Dictionary, in cases in which there is no appeal as a matter of right, certiorari is a writ (order) by the appeals court to a lower court to send all the documents in a case so that the appeals court can review the decision.

Certiorari may be defined as a judicial order operating in personam and made in the original legal proceedings, directed by the Supreme Court or High Court to any constitutional, statutory or non-statutory body or person, requiring the records of any action to be certified by the court and dealt with according to law.

Grounds for the issue of writ of Certiorari.

1. Defect of jurisdiction, for example the authority has no jurisdiction at all to take action or the authority has jurisdiction but it exceeds its permitted limits.
2. Non observance of the rules of Natural Justice. The question whether or not any rule of natural justice has been contravened in any particular case should be decided not under any preconceived notions, but in the light of the relevant statutory provisions, the constitution of the tribunal and circumstances of each case. The authority competent to decide must 'act in good faith and fairly listen to both sides', and 'deal with the question referred to it without bias, and give to each of the parties the opportunity of adequately presenting the case made'.
3. Errors of law apparent on the face of the record. This means error of law, which apparent from the record, and which does not require to be established by evidence.

Certiorari cannot be issued to disturb a finding of fact unless it is based on no evidence or purely on surmises and conjectures or which is manifestly against the basic principles of natural justice.

The U.S. Supreme Court's Certiorari process is covered in Rules 10-16, Rules of the U.S. Supreme Court.

Writ of Prohibition.

Writ of prohibition may be defined as a judicial order issued by the Supreme Court or a High Court to any constitutional, statutory or non-statutory agency to prevent these agencies from continuing their proceedings in excess or abuse of their jurisdiction or in violation of the principles of natural justice or in contravention of the law.

Prohibition and Certiorari are seems to be common but there is one fundamental difference between the two. Prohibition is issued at a stage when the proceedings are in progress to forbid the authority from continuing the proceedings. Certiorari is issued at a stage when the proceedings have terminated and the authority has given a final decision to quash the decision.

Grounds for the issue of Prohibition.

1. Lack of jurisdiction or excess of jurisdiction.
2. Violation of principles of natural justice.
3. Infringement of fundamental rights.
4. Contravention of the law

Prohibition is a writ of right, an alternative remedy does not bar the issue of this writ. It can be issued even when the agency has reached a decision, to stop the authority from enforcing its decision.

Writ of Mandamus.

Mandamus is a judicial remedy issued in the form of an order from the Supreme Court or a High Court to any constitutional, statutory or a non-statutory agency to do or to forbear from doing some specific act which that agency is obliged to do or refrain from doing under the law and which is in the nature of a public duty or a statutory duty.

Mandamus can be issued on the same grounds on which certiorari and prohibition can be issued

Writ of Quo Warranto.

The writ of quo warranto is issued against a person who claims or usurps a public office. Through this writ the court inquires 'by what authority' the person supports his or her claim. Quo warranto will also be issued when a person validly occupies the office but acquires a disqualification later on.

Writ of Habeas Corpus.

A writ of habeas corpus is a legal document ordering anyone who is officially holding the petitioner to bring him into court to determine whether the detention is unlawful. It may be defined as a judicial order issued by the Supreme Court or a High Court by which a person who is confined by any public or private agency may secure his release.
Evan a postcard by a pro bono publico is sufficient to galvanise the court into examining the legality of detention.

    

Conclusion

Under judicial review, the courts do not exercise their ordinary appellate powers. Judicial review is a protection and not an instrument for undue interference in executive functions. Any administrative action can only be set aside when it is arbitrary, irrational, unreasonable or perverse.

Bibliography

• Indian Constitution
• The Google
• Wise GEEK
• Wikipedia
• Britannica online Encyclopedia

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Top 5 Startup Myths All Entrepreneurs Should Ignore

Top 5 Startup Myths All Entrepreneurs Should Ignore

Hurricane Sandy: Saftey Measures

The steps that should be taken Before; During, and After the hurricane sandy. 

A hurricane is a type of tropical cyclone or severe tropical storm that forms in the southern Atlantic Ocean, Caribbean Sea, Gulf of Mexico, and in the Pacific Ocean. Hurricanes cause heavy rains that can cause extensive flood damages in coastal and inland areas.

Before a Hurricane

To prepare for a hurricane, you should take the following measures:

•        To begin preparing, you should build an emergency kit and make a family communications plan.
•        Know your surroundings.
•        Learn the elevation level of your property and whether the land is flood-prone. This will help you               know how your property will be affected when storm surge or tidal flooding are forecast-ed.
•        Identify levees and dams in your area and determine whether they pose a hazard to you.
•        Learn community hurricane evacuation routes and how to find higher ground. Determine where you would go and how you would get there if you needed to evacuate.
•        Make plans to secure your property.
•        Cover all of your home’s windows. Permanent storm shutters offer the best protection for  windows. A second option is to board up windows with 5/8” marine plywood. Cut to fit and ready to install. Tape does not prevent windows from breaking.
•       Install straps or additional clips to securely fasten your roof to the frame structure. This will reduce roof damage.
•       Be sure trees and shrubs around your home are well trimmed so they are more wind resistant.
•       Clear loose and clogged rain gutters and downspouts.
•       Reinforce your garage doors; if wind enters a garage it can cause dangerous and expensive structural damage.
•       Plan to bring in all outdoor furniture decorations, garbage cans and anything else that is not tied down.
•       Determine how and where to secure your boat.
•       Install a generator for emergencies.
•       If in a high-rise building, be prepared to take shelter on or below the 10^th floor.       
•       Consider building a safe room.

During a Hurricane

If a hurricane is likely in your area, you should:

·         Listen to the radio or TV for information.

·         Secure your home. Close storm shutters and secure outdoors objects or bring them indoors.

·         Turn off utilities if instructed to do so. Otherwise, turn the refrigerator thermostat to its doors closed.

·         Turn off propane tanks.

·         Avoid using the phone, except for serious emergencies.

·         Moor your boat if time permits.

·         Ensure a supply of water for sanitary purpose such as cleaning and flushing toilets. Fill the bathtub and other larger containers with water.

·         Find out how to keep food safe during and after the emergency.

You should evacuate under the following conditions:

·         If you are directed by local authorities to do so. Be sure to follow their instructions

·         If you live in a mobile home or temporary structure-such shelter are particularly hazardous during hurricane no matter how well fastened to the ground.

·         If you live in on the coast, on a flood plain, near a river, or on an island waterway.

If you are unable to evacuate, go to your wind-safe room. If you do not have one, follow these guidelines:

•        Stay indoors during the hurricane and away from windows and glass doors.
•        Close all interior doors- secure and brace external doors.
•        Keep curtains and blinds closed. Do not be fooled if there is a lull; it could be the eye of the storm, winds will pick up again.
•        Take refuge in a small interior room, closet or hallway on the lowest level.
•        Lie on the floor under a table or another sturdy object.
•        Avoid elevators.

After a Hurricane:

•       Continue listening to a NOAA Weather Radio or the local news for the latest updates.
•       Stay alert for extended rainfall and subsequent flooding even after the hurricane or tropical storm has ended.
•       If you have become separated from your family, use your family communications plain or contact FEMA or the American Red Cross.

FEMA has established the National Emergency Family Registry and Locator System (NEFRLS), which has been developed to help reunite families who are separated during a disaster.

The NEFRLS system will enable displaced individuals the ability to enter personal information in to a website database so that they can be located by others during a disaster.

The American Red Cross also maintains a database to help you find family. Contact the local American Red Cross chapter where you are staying for information. Do not contact the chapter in the disaster area.

·         If you evacuated, return home only when officials say it is safe.

·         If you cannot return home and have immediate housing needs, Text SHELTER + your Zip Code to 43362 (4FEMA) to find the nearest shelter in your area (example: shelter 12345).

·         For those who have longer-term housing needs, FEMA offers several types of assistance, including services and grants to help people repair their homes and find replacement housing. Apply for assistance or search for information about housing rental resources.

·         Drive only if necessary and avoid flooded roads and washed out bridges. Stay off the streets. If you must go out watch for fallen objects; downed electrical wires; and weakened walls, bridges, roads, and sidewalks.

·         Keep away from loose or dangling power lines and report them immediately to the power company.

·         Walk carefully around the outside your home and check for loose power lines, gas leaks and structural damage before entering.

·         Stay out of building if you smell gas, floodwater remain around the building or your home was damaged by fire and the authorities have not declared it safe

·         Inspect your home for damage. Take pictures of damage, both of the building and its contents, for insurance purposes. If you have any doubts about safety, have your residence inspected by a qualified building inspector or structural engineer before entering.

·        Use battery-powered flashlights in the dark. Do Not use candles.

      Note: The flashlight should be turned on outside before entering, the battery may produce a spark that could ignite leaking gas, if present.

·         Watch your pets closely and keep them under your direct control. Watch out for wild animals, especially poisonous snakes. Use a stick to poke through debris.

·         Avoid drinking or preparing food with tap water until you are sure it’s not contaminated.

·         Check refrigerated food for spoilage. If in doubt, throw it out.

·         Wear protective clothing and be cautious when cleaning up to avoid injury.

·         Use the telephone only for emergency calls.

NEVER use a generator inside homes, garages, crawlspaces, sheds, or similar areas, even when using fans or opening doors and windows for ventilation. Deadly levels of carbon monoxide can quickly build up in these areas and can linger for hours, even after the generator has shut off.

Inserted from ready.gov        

'Extortion' under Indian Penal Code

Under Indian Penal Code 1860,( in short IPC ) the law relating to 'extortion' have been laid down in Sections 383 to 389.

According to Collins English Dictionary, extortion means the act of securing money, favors, etc. by intimidation or violence; blackmail.
Dictionary of English Language by Houghton Mifflin Company, Fourth Edition, defines 'extortion' as 'illegal use of one's official position or powers to obtain property, funds or patronage.'

Section 383 of IPC defines 'extortion' whereas Section 384 IPC  is the Penal Section for extortion, a person is punishable for extortion if he puts any person in fear of injury and thereby dishonestly induces him to deliver any property whereas Section 385 of IPC is for attempt to commit extortion. Aggravated forms of extortion are provided under Sections 386 to 389.

The offence of extortion has been defined by Section 383 IPC, which is read as follows:- 'whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion".'

Essential Ingredients of Extortion.
(i) intention to put a person under fear of injury,
(ii) thereby induces dishonestly to
      (a) deliver any property, or
      (b) valuable security, or
      (c) anything signed or sealed which may be converted into a valuable security,
(iii) to any person.

Sections 24, 43 and 44 of IPC, respectively defines the terms, dishonestly, illegally and injury. In Section 24 IPC, dishonestly has been defined as; 'whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing 'dishonestly'. Section 43 IPC, lays down that 'the word "illegal" is applicable to every thing which is an offence or which is prohibited by law, or which furnishes ground for a civil action.....'. Section 44 IPC, lays down that, 'the word "injury" denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.

On consideration of the above definition and ingredients what appears is that if someone puts the other intentionally in fear of any injury and thereby dishonestly induce that person who had been put into fear, to deliver to the person any property or valuable security liable to be punished for extortion. The words "induces the person so put in fear to deliver" indicates the voluntariness of act of delivering a particular property on account of being put into fear etc.

Thus what is necessary for constituting an offence of extortion is that the prosecution must prove that on account of being put into fear of injury the victim was voluntarily delivering any particular property to the man putting him into fear. If there was no delivery of any property, then the most important ingredient constituting an offence of extortion was not available.


In Labhshankar vs. State of Saurashtra, AIR 1955 sau 42 and in Vena Ram vs. State of Raj. 2002 WLC (Raj.) 291, it was held that charge under Section 384 IPC, is not sustainable if the property is not delivered by the person extorted.

In Venkatappa vs. Jalayya, AIR(6) 1919 Mad 954, the accused, who was the proprietor of a certain estate, stopped complainant, a cooly, whom he suspected of smuggling Arrack from the Nizam's Dominions into British Territory, on the way... threatened to report the matter to the police unless he paid something. He was charged with... threat of injury to commit extortion...& was sentenced to a...fine... Held...that the conviction under Section 385 was bad, as complainant was not put in fear of any injury within the meaning of Section 44, Penal Code and the accused only threatened to do what he was bound by law to do.

In Biram Lal vs. State, RLW 2007(1) Raj.713, it was held that in order to complete the act of extortion the person who was put in fear, must have been induced to deliver the property. If the act of inducement caused by the wrong doer should bring forth its result at least by the victim consenting to deliver property even if actual delivery does not take place due to any fortuitous circumstances which would constitute extortion, but if it falls to produce the requisite effect, the act would remain only at the stage of attempt to commit extortion. In the instant case, even if the offence of extortion is held to be not made out for want of delivery of the property at least, the offence of attempt to commit extortion is clearly made out.

In A.R Antulay vs. R.S. Nayak, AIR 1986 SC 2045, the accused was Chief Minister at the relevant time and the Sugar Co-operatives had some of the grievances pending consideration before the Government. The pressure was brought about on the Sugar Co-operatives to make the donations with a promise that their grievances shall be consider. Held, that the ingredients of the offence of extortion not made out. There was no evidence at all that the management of the Sugar Co-operatives had been put in any fear and the contributions had been paid in response to threats.


Disclaimer: The above information is for general use. Consult your lawyer before acting.

Forgery : Offence relating to Documents

The offence of Forgery is in vogue since the time writing was invented. In Roman Law, it was enacted by the lex cornelia de falsies. In modern English Common law; forgery is the making of a false instrument with intent to deceive.

Under the Indian Penal Code, the law relating to forgery have been laid down in sections 463 to 477-A.

According to English Common law, 'every instrument which fraudulently purports to be that which it is not' is forgery. In India, also the authors of the code have adopted the above principle in laying down in section 463 of the Indian Penal Code, 1860.

Thus it is clear that the object  of the forgery is normally to cheat, to cause wrongful distribution of property by means of a false document. The main difference between cheating and forgery is that in cheating the deception is oral, whereas in forgery it is in writing. Forgery can thus be described as merely the means to achieve an end; the end being deception.

Statutory Provisions: The offence of Forgery is made of mainly two provisions of the Indian Penal Code i.e. sections 463 and 464.

Section 463 says: 'Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.'

• Thus forgery has to be satisfied with following essential ingredients: firstly the making of a false document or part of it (actus rea) and secondly (mens rea) such making should be with intent to 

          (a) cause damage or injury to (i) the public; or (ii) to any person, or
          (b) support any claim or title, or
          (c) cause any person to part with property,m or
          (d) enter into any express or implied contract, or
          (e) commit fraud or that fraud may be committed.


Section 464 explains about the making of a false documents. Making false documents is the soul of the offence of the forgery. But it is essential that the false document, when made, must either appear on its face to be, or be in fact one, which, if true, would possess some legal validity, or in other words, must be legally capable of effectivating the fraud intended.

The three forms of making false document according to section 464 of IPC are
(i) Dishonestly or fraudulently making, signing, sealing, or executing a document with the intention of causing it to be believed that such document was made by the authority of  a person by whom the maker knows that it was not made.
(ii) Dishonest, or fraudulent cancellation or alteration of a document in its material part without lawful authority.
(iii) Dishonestly or fraudulently causing another person to execute, or alter a document with the knowledge that the maker thereof does not know the contents of the documents or the nature of the alteration by reason of unsoundness of mind or intoxication.

Explanation 1 to the section 464 says 'A man's signature of his own name may amount to forgery'.
e.g. A signs his own name to a bill of exchange, intending that it may be believed that the bill was drawn by another person of the same name. A has committed forgery.

Explanation 2 says making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount forgery.
e.g. A draws a bill of exchange upon a fictitious person, and fraudulently accepts the bill in the name of such fictitious person with intent to negotiate it. A commits forgery.


Disclaimer: Above information is for general use. Consult your lawyer before acting.

04 October 2012: STFC - New prize for journalism aims to change perceptions of physics

04 October 2012: STFC - New prize for journalism aims to change perceptions of physics

The Cosmological Supercomputer

The Cosmological Supercomputer

Gift of Immovable Property

What is gift? Gift is the transfer of ownership without consideration. The property must be in existence at the date of making of the gift and it must be transferable within the meaning of section 5 of the Transfer of  Property Act, 1882.
Section 122 of the Transfer of Property Act defines gift as follows :
"Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made - Such acceptance may be made during the lifetime of the doner and while he is still  capable of giving.
If the donee dies before acceptance, the gift is void.

Transfer how effected - Section 123 of the Transfer of Property Act read as follows :
"For the purposes of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses".
The second requirement is there must be acceptance of the gift by the donee. When a gift is not an Onerous  (burden sum section 127) mere handing over of document by the donee himself/herself is sufficient to prove the valid acceptance.
When gift may be suspended or revoked?
Gift of immovable property may be revoked under section 126 of the Transfer of Property Act. Section 126 lays down two modes of revocation of gift.
First one is revocation by mutual agreement of donor and donee e.g. A gives a field to B, reserving to himself with B's assent, the right to take back the field in case B and his descendants die before A. B dies without descendants in A's lifetime, A may take back the field.
Second one is revocation by rescission as in the case of contracts.
According to Section 19 of the Indian Contract Act which is read as "where consent to an agreement is caused by coercion, undue influence, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so obtained". Therefore, where the gift is not made voluntarily because of any of the factors mentioned under Section 19 of the Indian Contract Act, the gift may be revoked by the doner.
The condition revoking the gift must be expressly laid down in the gift-deed and it must be valid under the provisions of law given for conditional transfers as laid down under Sections10 to 34 of the Transfer of Property Act.
In Mool Raj vs. Jamna Devi &others, the Himachal Pradesh High Court in 1995 held that since the condition of revocation of gift upon donee's failure to render services to donor was not laid down in the deed, it was unconditional gift and, therefore, cannot be revoked by the doner.
In 2001, the Apex Court in Thakur Raghunath jee Maharaj &other vs. Ramesh Chandra, held that even though a condition is not laid down in the gift deed itself, and has been provided under a mutual agreement separately but forms part of the transaction of gift, the condition would be valid and enforceable.


Whether doner may revoked a gift after delivery of deed and before registration?
In Kalyansundaram Pillai vs. Karuppa Mooppanar(AIR 1927 PC 42), Lord Salvesen held as follows:  "....when the instrument of gift has been handed by the donor to the donee and accepted by him, the former has done everything  in his power to complete the donation and to make it effective Registration does not depend upon his consent, but is the act of an officer appointed by law for the purpose, who, if the deed is executed by or on behalf of the doner and is attested by at least two witness, must register it if it is presented by a person having the necessary interest within the prescribed period. Neither death, nor the express revocation by the donor, is a ground for refusing registration, if the other condition are complied with....&quot.

Disclaimer- All the contents are only for general information or use. Consult your lawyer before acting.

Quick Multiplication

My nephew, Harsh, who is in class three has taught me a quick multiplication method which is in form
999....99*any number.
For example multiply a random number, say 27689878 with 99999999 in following manner.
Write down the number just before of the selected random number and then thereafter write down the difference of the number one by one i.e (9-2), (9-7), (9-6), (9-8), (9-9), (9-8), (9-7), (10-8).
It will constitute the product of the required random number.
So
         99999999*27689878 = 2768987772310122, where 27689877 is the number just before of the selected random number and thereafter 7 is the difference of 9and 2; 2 is the difference between 9 and 7; 3 is difference between 9 and 6 and so on and in the last 2 is the difference between 10 and 8.

Multiply 999 with 27.
999*27 = 26(9-0)(9-2)(10-7)
             = 26973.
Another example.
Multiply 9999 with 267.
9999*267 = 266(9-0)(9-2)(9-6)(10-7)
                 = 2669733.
Multiply 99999 with 54321.
99999*54321 = 54320(9-5)(9-4)(9-3)(9-2)(10-1)
                       = 5432045679.

NASA's Curiosity beams back a color 360 of Mars' Gale Crater

NASA's Curiosity beams back a color 360 of Mars' Gale Crater

Fiction : : Assigning values to zero.

Among 0,1,2,3,4,5,6,7,8,9 only 'zero' has the value which is ever changing; if we belief that the theory of Big Bang is right and our Universe is expanding. We can easily compare one with another one, two with another two and so on but we can not able to compare zero of a 'thing' with another zero.
But if we define zero then we can easily compare zero of a thing with another zero of the same thing.
In case of our expanding universe we can define zero as the inverse of the diameter of the universe or zero is inversely proportional to the radius of the universe.
In case of open space, in which our universe is expanding, zero is undefined because we don't  know the radius of open space. In case of our universe, zero has value, which is very less and decreasing with expansion of it.
So when we multiply a distance measured in light year or in parsec with zero (zero of our universe) it has some value which is less than one.