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Indian Laws Most Of…

Here are some basic laws and rights which every Indian should be aware of;

1. There cannot be any legal arrest if there's no information or reasonable suspicion that the person has been involved in a cognizable offence or commits offence(s), specified under Section 41.

2. Male officers have no right to escort a woman and a female can refuse to go to the police station between 6 pm to 6 am. In case of a serious crime, a written permission is required from the magistrate allowing the male officers to escort her.

3. There are not any penalties against non-motor vehicles like a cycles or rickshaws, since they do not fall under the Motor Vehicles Act.

4. Delhi Police grants every women a privilege of registering complaints via email or even through post if she is not able to go to the police station.

5. Section 50(2) of CrPC provides that, if any person arrested without warrant should be immediately informed of the grounds of his arrest, and if the arrest is made in a bailable case, the person shall be informed of his right to be released on bails.

6. After arrest, a person shall have the right to consult and to be defended by a counsel of his choice; arrestee shall be entitled to free legal aid. Free legal aid to persons of limited means is a service which the modern State, in particular a welfare state, owes to its citizens. 

7. A person arrested cannot to be detained more than 24 hours. Section 57 of CrPC lays legal requirements to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest must be scrupulously observed.

8. Live-in relationships are not illegal and are considered to be 'equal to marriage' if certain conditions are met like pooling of financial and domestic arrangements, entrusting the responsibility, sexual relationship, bearing children, socialization in public and intention, conduct of the parties, etc. This is done to protect women under the Domestic Violence Act. And children born out of live-in relationships have the right of inheritance.

9. If the gas cylinder blasts during the cooking food then the gas agency is liable to pay Rs. 50 lakh to the victim as a compensation. For claiming this compensation, the consumer needs to lodge an FIR to the nearest police station and submit it to the concerned gas agency.

10. It is illegal to give a lift to unknown people, in fact, using your personal vehicle for commercial purposes is also illegal.

11. A Police officer can never refuse to lodge an FIR, and if they does so they could be jailed for up to 6 months to 1 year.

12. No company is allowed to fire a pregnant woman. It is punishable by a maximum of 3 years of imprisonment.

13. Once you are fined for a chalaan slip, you can get you out of being fined for the same till midnight.

14. A seller cannot go beyond the MRP and you have the right to bargain for a price below MRP.

15. The Limitation Act states that if you are not paid by the person contracted to pay you, you can file a complaint within 3 years.

16. Public Display of Affection (PDA) within its limits is allowed but any obscene activity is punishable by law for up to 3 months. 

17. If a husband or a wife refuse sex post marriage, it can be deemed as 'mental cruelty' and is a valid ground/reason for divorce.

18. The Hindu Adoptions and Maintenance Act, 1956 clearly states that if you have a Hindu son or a son's son or a son's son's son, you cannot adopt another son. Same applies in case of daughters.

 

19. You may end up in jail for flying kites. As per the Indian Aircraft Act, a person can be imprisoned for 2 years or fine of up to Rs.10 lakh, if he/she flies an aircraft in such a way that it causes danger to any person or property on land, water or in the air. Aircrafts here include balloons, gliders, flying machines and kites.

20. Any person can use the restroom and drink water at any hotel whether or not one is staying at that hotel. Under the Indian Sarais Act, 1867. 'Sarai' means any building used for the shelter and accommodation of travelers hotels falls under this category.

 

 

CLAT 2019: Paper Analysis…

CLAT 2019 paper, was not completely on unexpected lines. The recently made CLAT Board had to make a lot of amendments to make CLAT a sustainable exam, they also made the paper offline, thus putting end to the chances of last year's online paper management fiasco happening again. Seeing the last year's blunder, they made the CLAT 2019 paper very easy and largely controversy free.

There were wrong options in one question of Mathematics and 2-3 questions of Logical Reasoning and it is upon the committee to see how they'll deal with the wrong answers. The CLAT 2019 was very much similar to the CLAT 2016, which was equally an easy paper and the cut-offs are expected to be on similar ratio.

English: This section comprised of 10 questions on Reading Comprehension, 5 questions each on Para jumbles, Miss-spelt words, Idioms and Foreign Word and 10 Grammar based questions on Sentence Correction. The questions were largely direct and did not really troubled the aspirants. Attempts over 30+ consider to be good.

Logical Reasoning: This section comprised of 3 Puzzle based questions and on Blood Relations, Number Series, Coding Decoding, Odd One Out, Analogies etc. There were no questions from Critical Reasoning and the section solely contained Analytical Reasoning questions. Attempts over 30+ consider to be good.

Legal Aptitude: There was no Legal Knowledge questions in CLAT 2019 and all questions were of Legal Reasoning. Pretty much all the questions seemed familiar to the aspirants as they were mostly based upon Previous Years CLAT and AILET papers. Students who had done these properly and thoroughly would get a huge advantage in the Legal Aptitude section. Legal Reasoning questions were from Contracts, Torts and Criminal Law and there were a few questions on Miscellaneous Laws also. Attempts over 42+ consider to be good.

General Knowledge: All questions of the GK section were from Current Affairs and there was just one question from Modern History. The Current Affairs questions were from Science and Tech, Economy, Sports, Books and Authors, Polity etc. The questions were fairly direct and anyone reading from Monthly magazine or any famous GK website wouldn't have any issues in this section. Furthermore, most of the questions were from the last 4 months Current Affairs. Attempts over 38+ consider to be good.

Mathematics: This section comprised of 2-3 questions from topics like, Time Speed and Distance, Time & Work, Percentages, Profit and Loss, Ratio, Mixtures and Allegations, Calendar etc. This section was very much doable even for the ones who are weak in Mathematics. Attempts over 10+ consider to be good.

Good Number Of Attempts: For Top 5 National Law Schools attempts shall be above 168+ and cut-off for the same is expected to be around 145 mark.

LANDMARK JUDGMENTS OF…

Central Board of Secondary Education (CBSE) v. Aditya Bandopadhyay & Ors

(2011)

This judgment came in the year 2011. By virtue of this judgment, now the students who are aggrieved by the evaluation can claim their evaluated answer books to be inspected. They can also take a certified copy of the paper under RTI Act. But this can be done only during the time the authorities are expected to maintain and retain the answer book of all examinees under.

 

Rupa Ashok Hurra V. Ashok Hurra

(2002)

This case related to curative petitions. The Supreme Court has held that Article 32 can be brought into picture only when the matter relates to enforcing the fundamental rights. It is established that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights.

 

T.M.A. Pai Foundation v. State of Karnataka

(2002)

The Apex Court laid down a guideline that the right of minorities does include the right of determining the procedure and method of admission and selection of students which is fair and transparent and based on merit for professional and higher education colleges.

In case of aided institution, for non-minority students, the State can regulate the admission which has to be merit-based subject to reservation policy of the State. Merit to be determined by an entrance test or by any other method with consideration for weaker sections.

 

Supreme Court Advocates on Record Association Vs. Union of India

(1993)

The Supreme Court held that the Chief Justice of India's role in appointing the Judges of Apex Court is unique, singular and primal but participatory vis-a-vis the executive on a level of togetherness and mutuality, and neither he nor the executive can push through an appointment in derogation of the wishes of the other.

 

Bangalore Water Supply And Sewerage Board Vs A. Rajappa

(1978)

In this case, Supreme Court has held that the Bangalore Water Supply and Sewerage Board does fall under the definition of the industry and by justifying this it gave an elaborating definition of industry.

 

A.R.Antulay v R.S.Nayak
(1998)

This is a landmark judgment in which it was held that a legal remedy can be claimed by the  applicant as a matter of right and the Court cannot refuse by virtue of the maxim ex debito justitiae. Neither party is prejudiced by any accidental or unavoidable action or omission of the Court as the maxim actus curiae neminem gravabit has to be applied.

 

I.R.Coelho V. State of Tamil Nadu

(2007)

The Apex Court held that the constitutional validity of 9th schedule laws can be adjudged by applying the test of rights that is direct impact and effect test. It requires that it should be in the form of determinative factor. The Courts are to determine whether the basic structure has been violated or not only after applying this test.

 

M/s. SBP & Co. v. M/s. Patel Engineering Ltd. and Anr

(2005)

The Bombay High Court held that a mere oral evidence of a document (signed between the parties) is not to be considered as a written arbitration agreement which is defined under Section 7(4) of the Act. Thus, oral agreements cannot be deemed to be valid arbitration agreements.

 

Vodafone International Holding vs Union of India

(2012)

In a landmark judgment, the Supreme Court has given recognition to the following:

  • The principles of tax planning.
  • Business entities or individual may arrange the affairs of their business so as to reduce their tax liability in absence of any statutory stipulation prohibiting the same.
  • The multinational companies often establish corporate structures and all these structures should be established for business and commercial purposes only.
  • The corporate veil may be lifted in case facts and circumstances reveal that the transaction or corporate structure is sham and intended to evade taxes.
  • The transactions should be looked holistic manner and not in a dissecting manner and the presence of corporate structures in tax neutral/investor friendly nations should not lead to the conclusion that these are meant to avoid taxes.

 

P.A. Inamdar V. State Of Maharashtra

(2004)

The Supreme Court decided upon the  fixation of quota in respect of unaided professional institutions and to the holding of examinations for admission into such colleges. The Court prima facie held that the institutions must fill the seats in the ratio of 50:50 as a temporary measure without prejudice to the contentions of the parties for the purpose of the final disposal.

 

Samsher Singh V. State Of Punjab

(1974)

The Apex Court in this case has held that a probationer's service can be validly terminated if the Authority is satisfied that he is inadequate or unsuitable for the job due to moral turpitude or temperamental reasons etc. It is not necessary that a formal inquiry is arranged for in such cases.

 

Indira Swahney V. Union Of India

(1992)

In this case, the Hon'ble Supreme Court has upheld the implementation of various reservations for OBC (Other Backward Classes) in jobs falling under the category of Central Government.

               

Vishakha V. State Of Rajasthan

(1997)

Supreme Court had laid down guidelines to be followed while dealing with sexual harassment at workplace. These guidelines were stipulated by the Apex Court stating that these guidelines have to be mandatory followed until a proper legislation is passed governing the issue of sexual harassment at workplace.

 

Pradeep Kumar Biswas v. Indian Institute of Chemical Biology

(2002)

Two questions were put before Supreme Court: (i) whether CSIR was a State within the meaning of Article 12, and (ii) if yes, whether the Supreme Court should reverse the decision to the contrary in the above Sabhajit Tewary case. It was held by the Court that CSIR does fall within the definition of a State under Article 12 of the Constitution of India.


Daniel Latifi V. Union Of India

(2001)

The Supreme Court was to decide on the maintenance of ex wife beyond the Islamic Law. The Court interpreted the Islamic family law in a manner which struck a balance between promoting equality for Muslim women. This avoided the amendment of Muslim personal law.

 

Ms Githa Hariharan V. Reserve Bank Of India

(1999)

The Supreme Court relied upon gender equality principles mentioned in the Indian Constitution, CEDAW and UDHR and upheld the constitutional validity of Section 6(a) HMGA, 1956. It held that both the father and mother are natural guardians of a minor Hindu child. The mother cannot be given the status of a natural guardian only after the father's death as it would be against the child's welfare.

 

Sangeet V. State Of Haryana

(2013)

The Court held that a prisoner who is sentenced to transportation for life bears no indefeasible right to an unconditional release when the particular term expires. It said: “The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.” 

 

Mafatalal Industries V. Union Of India

(1997)

The Supreme Court has had decided upon the rights and remedies which are available to the citizens of India against the State when the taxes and imposts are unlawfully recovered from them. The following were held:

"If non-disclosure of interest is likely to affect the voting pattern of the class of creditors or shareholders who are called upon to vote on the scheme, then only such special interest of the director is required to be communicated to the voters as per Section 393(1) (a).

The Scheme of Compromise and Arrangement is neither unfair nor unreasonable to the minority shareholders represented by the appellant."

 

Centre For Public Interest Litigation V. Union Of India

(2012)

The Supreme Court has in this case held that when the State is to alienate the natural resources, it is its duty to call for auction by publicizing it to the public at large so that all the interested and eligible persons can take part in the auction process.

 

State of W.B. v. Committee for Protection of Democratic Rights

(2010)

The Apex Court has held that while exercising its jurisdiction under Article 226 of Constitution of India, the High Court can direct the Central Bureau of Investigation to investigate any offence which is cognizable and alleged to have been committed within the territorial jurisdiction of the State. The consent of State Government is not necessarily to be taken for directing this.

 

Amrinder Singh V Punjab Vidhan Sabha

(2010)

It was held that the breach can be established only when his act has a direct nexus with the duties or responsibilities entrusted upon him.  This also includes his functions as a legislator. Exercising the legislative privileges  for the purpose of punishing past acts was held as improper for the 13th Punjab Vidhan Sabha for claiming breach of privileges on the basis of alleged misconduct which in actual took place in the 12th Vidhan Sabha.

LANDMARK JUDGMENTS OF…


Minerva Mills V. Union Of India

(1980)

Supreme Court had struck down Section 55 & 4 of the 42nd Amendment because it violated the basic structure doctrine. The Court emphasized on the importance of judicial review and held that Section 55 of the amendment act 1976 is void because it made the challenge in Court not possible and removed all restrictions on the Parliament's power under Article 368.

S.R Bomai V. Union Of India

(1994)

Supreme Court held that the President's power to dismiss a State Government is not absolute. The power should be exercised by the President only after both the Houses approve his proclamation. Till then, he can only suspend the Constitutional provisions thereby suspending Legislative Assembly.

 

L. Chandra V. Union Of India

(1995)

Supreme Court concluded that the Tribunals constituted under Articles 323A and 323B have the power to test vires of subordinate legislation except vires of their parent statutes. All its decisions would be subject to scrutiny before Division Bench of their respective High Courts under Articles 226/227. No appeal would lie directly to the Supreme Court under Article 136. The said direction would operative prospectively.

 

Maneka Gandhi V. Union Of India

(1978)

This judgment expanded the scope of Article 21 of the Constitution and made India a welfare State. The major findings of the judgment are as follows:

1.      The court while delivering this landmark judgment changed the landscape of the Constitution by holding that though the phrase used in Article 21 is “procedure established by law” instead of “due process of law” however, the procedure must be free from arbitrariness and irrationality.

2.      Even though the Constitution makers must be respected, but they never intended to plant such a self – destructive bomb in the heart if the Constitution. They were never of the mind that the procedure need not necessarily be reasonable, just and fair. They drafted this Constitution for the protection of the “people of India” and such interpretation of Article 21 will be counter-productive to the protection offered by the Constitution.

3.      The scope of “personal liberty” is not be construed in narrow and stricter sense. The court said that personal liberty has to be understood in the broader and liberal sense. Therefore, Article 21 was given an expansive interpretation. The court obligated the future courts to expand the horizons of Article 21 to cover all the Fundamental Rights and avoid construing it in narrower sense.

4.      Section 10(3)(c) of Passport Act 1967 is not violative of either Article 21 nor Article 19(1)(a) or 19 (1)(g). The court further held that the said 1967 provision also not in contradiction of Article 14. Since the said provision provides for an opportunity to be heard. The court rejected the contention of petitioner that the phrase “in the interests of the general public” is not vague.

 

Danial Latifi V. Union Of India

(2001)

Supreme Court held that while divorce, the husband has a duty to consider his wife's future needs and make required arrangements well in advance so that those need could be met. This case established the Muslim husband's liability for facilitating maintenance to his wife even after divorce. The period included is that beyond the iddat period.

 

Vellore Citizens Welfare Forum V. Union Of India

(1996)

Supreme Court observed that one of the major foreign exchange earner was the leather industry. Among others, 'precautionary principle' and 'polluter pay principle' are the important environmental measures to be taken by the State thus anticipating, preventing and attacking the causes of environmental degradation.

 

S.P. Gupta V. Union Of India

In this case, the Apex Court observed that the President's actions can only be challenged only when there is apprehension of mala fide intention on part of him or extraneous considerations.

 

Dk Basu V. State Of West Bengal

(1996)

The Court gave certain guidelines regarding the rights and duties of arrested persons and arresting police official. These are:

·         The police official who arrests and handles the interrogation of the arrested person must wear accurate, visible and clear identification and name tags with their designations. A register has to be maintained in which particulars of all such personnel who handle interrogation of the arrestee will be recorded.

·         A memo of the arrest has to be prepared by such official at the time of arrest. Such memo shall have to be attested by at least 1 witness. He can be a family member of the arrested person or even a respectable person from the locality (area of arrest). The arrestee will countersigned by the arrestee.

·         Right to inform Near ones about arrest: The arrestee must be given a chance to inform someone about his arrest or detention, as a matter of right.

·         A case diary has to be maintained at the place of detention. It should contain details of the arrestee,  the name of the person to whom he has informed about his arrest or detention and the details of the police official who has given effect to that arrest.

·         When the informed person lives outside the district or town, the police is obligated to give them details regarding time, place of arrest and venue of custody of an arrestee. This can be done through the Legal Aid Organization in the District and the police station of the area concerned telegraphically within period of 8 to 12 hours after the arrest.

·         If the arrestee requests, he can be examined while being arrested. If any injuries, minor or major, are found on his body, it must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

·         Right to get medical facilities: The arrested person has to be medically examined by a trained doctor every 48 hours when he is detained

·         Right to Consult Advocate: The arrestee should not be stopped to met his Advocate during interrogation.

 

Kharak Singh Case

(1964)

Supreme Court held that “It is essential for us to determine whether there is a fundamental right to privacy in the Indian Constitution. Determination of the question would essentially entail whether the decisions in M P Sharma by an eight-judge Bench and Kharak Singh by a six-judge Bench that there is no such fundamental right is the correct expression of constitutional provisions,”

 

Sodan Singh V. NDMC

(1989)

Supreme Court had considered the Thareja Committee's report and concluded that the occupation and places which were decided by the Committee is tentative. The Court noted its recommendation that in case the dues are not paid, the claimant shall not be entitled to the benefit under this scheme. Certain procedures were directed to make final allotment of sites to the eligible squatters.

  

Naga's Peoples Movement For Human Rights V. Union Of India

(1998)

The Supreme Court said that for any area to be declared as a disturbed one, a grave situation of law and order must exist on the basis of which the Governor/Administrator of the State/Union Territory or the Central Government can form an opinion that area is in such a disturbed or dangerous.

 

M. Nagaraj V. Union Of India

(2006)

The constitutional validity of 77th, 81st, 82nd, and 85th Amendments were upheld by Supreme Court. It held that if the State wants to exercise their discretion and make provisions for reservation to promote SC/STs, quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335 has to be collected.

 

Selvi V. State Of Karnataka

(2010)

The Supreme Court reiterated on Article 20(3) as follows:

 “Article 20 (3) aims to prevent the forcible conveyance of personal knowledge that is relevant to the facts in issue. The results obtained from each of the impugned tests bear a testimonial character and they cannot be categorised as material evidence.

In their considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy.” 

 

Society For Un-Aided Private Schools Of Rajasthan V. Union Of India And Anr.

(2012)

Supreme Court bench comprising of Chief Justice SH Kapadia and Justices Swatanter Kumar and Justice KS Radhakrishnan upheld the constitutionality of the RTE Act. It held that under that Article 19(6) it was permitted to impose reasonable restrictions on the right to carry on an occupation, trade or business under Article 19(1)(g). Also, 25% reservation obligation on private unaided schools was a reasonable restriction. It was also held that Section 12(1)(c) of the Act requiring unaided minority schools to admit children from disadvantaged groups violated the minority character of those institutions and hence, the RTE Act could not be applied to private unaided minority schools.

 

D.S. Nakara V. Union Of India

(1983)

Supreme Court had observed that:

"With the expanding horizons of socio-economic justice and the classification being not based on any discernible rational principle having been found wholly unrelated to the objects sought to be achieved by grant of liberalized pension, it could be safely said that this differential treatment is violative of Article 14 and unconstitutional. The classification must not be arbitrary but must be rational, that is to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. Also, Article 14 is certainly attracted where equals are treated differently without any reasonable basis."

 

Nandini Sundar V. State Of Chhatisgarh

(2011)

supreme court addresses the issue of ill-treatment, torture, murder, and forced displacement suffered by local people. The Court reaffirmed that these actions on part of the State are unconstitutional  and ordered the State to strictly abide by the rule of law. For this, orders were passed to stop SPOs with immediate effect to stop them from funding the other vigilante groups' recruitment.

 

Swamy Shraddananda V. State Of Karnataka

The Apex Court had held that if the Court has good reasons to substitute death sentence by life imprisonment or by a period of 14 years, it can direct the convict to not be released from jail for the rest of his life or for the actual term as specified in the order, as the case may be.

 

Zahira Habibullah Sheikh & Anr V/s State of Gujarat & Ors

(2006)

The Supreme Court bench raised vital questions with regards to the roles of various bodies like Court, Investigating agencies, Public Prosecutors etc. in a criminal proceeding. When the State prosecutes the State itself, there arises a major concern of State-sanctioned and sponsored criminal bouts of communal violence. It extends to every officer of the prosecuting State undertaking every effort to ensure the acquittal of accused officers of the State.

 

Kihoto Hollohon v. Zachilhu and ors.

(1992)

The Supreme Court considered the 52nd Amendment to the Constitution and held that it violated the whole Constitution as the Constitutional scheme for decisions on questions on disqualification of members after being duly elected, contemplates adjudication of such disputes by an independent authority outside the House, namely President or Governor in accordance with the opinion of the Election Commission, all of which who high Constitutional functionaries are.

 

Aruna Ramchandra Shanbaug v. Union Of India

(2011)

The Apex Court considered the principle of parens patriae, It prevented any misuse by determining termination of life of a person in High Court. Thus, passive euthanasia was allowed by the Court in some cases. But even for this, the approval has to be taken from the concerned High Court and proper procedure is to be followed.

DISCHARGE OF LIABILITY…

Section 138 of Negotiable Instruments Act, 1881

The Negotiable Instruments Act, 1881 talks about three types of instruments. These are promissory notes, bills of exchange and cheques. 'Negotiable' means transferable in regards to consideration. 'Instrument' means a written document creating a right in favor of the other person. Thus negotiable instrument means a document (sum of money) transferable by delivery.

The discharge of liability of the accused has been decided by the various Courts. The concept can be understood by discussing relevant case laws which are as follows:

Joseph Vilangadan v. Phenomenal Health Care Services

The Bombay High Court has held that no liability of the accused arises when the he had issued a cheque merely to serve the purpose of serving as security deposit and not for discharging any of his debt or loan. The language of the agreement is the best source to determine the purpose of drawing a cheque.

 

Goaplast Pvt. Ltd. v. Shri Chico Ursula Dsouza

In this case, it was held that a post dated cheque is not payable on demand till a particular date. It is not a cheque in the eyes of law till the date it becomes payable on demand.

"When a posted dated cheque is written or drawn, it is only a bill of exchange and as such, the provisions of Section 138 are not applicable to the said instrument."

 

Anil Kumar Swahney v. Gulshan Rai

In this case, the Supreme Court has held that one of the most important ingredients of Section 138 is the cheque has to be returned by the bank unpaid. There can exist no charge of offence under Section 138 until the bank doesn't return the cheque unpaid, even if the drawee has knowledge of the same beforehand.

Regarding post dated cheques, the Apex Court held that they cannot be presented before the bank until the actual date arrives. only when the post-dated cheque becomes a "cheque", with effect from the date shown on the face of the said cheque, the provisions of Section 138 come into picture.

The conclusion is that a post-dated cheque has the value of a bill of exchange only till the date written on it. In the words of Supreme Court:

With effect from the date shown on the face of the said cheque it becomes a "cheque" under the Act and the provisions of Section 138(a) would squarely be attracted. In the present case the post-dated cheques were drawn in March 1990 but they became "cheques" in the year 1991 on the dates shown therein. The period of six months, therefore, has to be reckoned from the dates mentioned on the face of the cheques.

 

CC.No.16701 of 2012

Another instance where the accused is not held guilty is when the complainant fails to produce copy of loan agreement and copy of loan account statement. Non- production of these two material documents are fatal to the case of complainant. The cheques, in the present case, were solely issued for the purpose of discharging his liability, but the complainant failed to produce evidence of outstanding existing balance amount. Thus, the Bangalore High Court held that

"Therefore, the Section 138 of NI Act is not applicable to the undated cheques given as a security to loan agreement. As we all know that the cheques collected for the security of loan amount should be treat as a security for the loan amount. Those cheques cannot be used for any other purpose." 

 

Conclusion

There have been many changes to the law regarding dishonour of cheques, specially with regards to jurisdiction. The Negotiable Act assures a speedy trial in such cases and bring inviolability to the system by reducing default of payments.

DECODING SECTION 164…

Understanding Confessions

A confession can be defined as any person admitting his guilt while being in custody. He states that he is guilty of the offence he is charged for. In the words of Justice Stephen, a “confession” is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.

Even the Supreme Court has opined that confessions are the highest degree of reliable sources because no person would be willing to face the repercussions of the crime he has not committed. He will confess only when he is actually guilty of that crime and genuinely feels he should be punished.[1]

Any statement which contains self blaming matter which is false, would not amount to a confession merely because the person has stated it. There needs to be strong evidences also to support that confession.

 

Statements recorded by Magistrate

The statement by the accused needs to be recorded to serve the following purposes:

Firstly, to discourage the witness from changing their statements again and again.

Secondly, to get over the immunity from the prosecution in regard to information given by the witness under section 162 of the code.

The legal provision in this regards is Section 164, Code of Criminal Procedure.

 

Section 164 Decoded

Section 164(1) gives the Magistrate the authority for recording a person's confession or statement. There is no jurisdictional issue involved. This means it doesn't matter whether he has a jurisdiction over that person or not to record the statement.  In case he doesn't possess jurisdiction, then he has to forward the recorded statement/confession to the Magistrate who is legally empowered to try the case.

Section 164(2) acts as a warning. The Magistrate has to inform the person willing to make a statement/confession that he is not legally bound to do so and that such statement may act as an evidence against the person who has made it. Also, the Magistrate will not record the statement unless he is fully satisfied that such statement/confession is being made voluntarily, and not under any pressure.

The Indian Courts have observed that where the confession is made by the accused and recorded by the Magistrate, but the latter failed to make the former aware of the warning under Section 164(2), such confession cannot be taken into consideration by Courts.[2]

Section 164(3) guarantees that the person who is willing to confess or make a statement is not pressurized by the police to do so. When the accused

The fourth clause of Section 164 talks about manner of recording confessions. It states that these must be recorded in accordance to Section 281of Code of Criminal Procedure and shall be signed by the person making it. The Magistrate is to then make a memo. Signing a printed confession will be violative of this section.

One of the mandatory requirements is that the confession once recorded must be signed by the accused. This is to maintain transparency. The confession has to be attested while being made before any officer in Court who is trying the case.

Section 164(5) lays down the manner of recording a statement by witness. It can be recorded even when the chargesheet has already been filed. While sub section 6 of section 164 states that in case he doesn't possess jurisdiction, then he has to forward the recorded statement/confession to the Magistrate who is legally empowered to try the case.

 

Recorded Statement: Public or Private?

The statement which is recorded by Judicial Magistrate or Metropolitan Magistrate under section 164 CrPC is a public document under Section 74 of Indian Evidence Act,1872. This evidence is admissible under Section 80 of the Indian Evidence Act, 1872.

The statement of witness recorded under section 164 CrPC, is a public document which does not require any formal proof and there is no necessity to summon the magistrate who records the same[3]

 

Principles to be Followed

The Supreme Court had laid down the following principles:[4]

1.      The provisions of Section 164 Cr.P.C. must be complied with not only in form but in essence.

2.      Before proceeding to record the confessional statement, a searching enquiry must be made from the accused as to the custody from which he was produced and the treatment he had been receiving in such custody in order to ensure that there is no scope for doubt of any sort of extraneous influence proceeding from a source interested in the prosecution.

3.      A Magistrate should ask the accused as to why he wants to make a statement which surely shall go against his interest in the trial.

4.      The maker should be granted sufficient time for reflection.

5.      He should be assured of protection from any sort of apprehended torture or pressure from the police in case he declines to make a confessional statement.

6.      A judicial confession not given voluntarily is unreliable, more so, when such a confession is retracted, the conviction cannot be based on such retracted judicial confession.

7.      Non-compliance with Section 164 Cr.P.C. goes to the root of the Magistrate’s jurisdiction to record the confession and renders the confession unworthy of credence.

8.      During the time of reflection, the accused should be completely out of police influence. The judicial officer, who is entrusted with the duty of recording confession, must apply his judicial mind to ascertain and satisfy his conscience that the statement of the accused is not on account of any extraneous influence on him.

9.      At the time of recording the statement of the accused, no police or police officer shall be present in the open court.

10.  Confession of a co-accused is a weak type of evidence.

11.  Usually, the Court requires some corroboration from the confessional statement before convicting the accused person on such a statement



[1] State (NCT of Delhi) v. Navjot Sandhu

[2] Mahabir Singh v. State of Haryana

[3] Guruvind Palli Anna Roa And others v. State of Andhra Pradesh 2003 (2) ALD Cri 60

[4] Rabindra Kumar Pal v. Republic of India

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