Counter Claim

Recently, on 6^th June 2022, the Panchkula Bench of Haryana Real Estate Regulatory Authority passed a judgment in case titled as "Ansal Infrastructure and Properties Vs. Raj Mahendra Singh" RERA-PKL-404-2020 which came as a big relief to the homebuyers who fall prey to the illegal and arbitrary demands of the Builders (Promoters).

Facts of the Case

This case was filed by Ansal Properties and Infrastructure (Promoter/Complainant) against the Allottee (Respondent/Allottee) vide complaint no. 404 of 2020. The Allottee booked its Unit in the “Green Escape” project of the Promoter in 2011. The Promoter promised the Respondent that the Unit shall be delivered to him by March 2015 but eventually offered the possession on 7^th October 2016 after a delay of around 1.5 years.

The total sale consideration of the Unit was INR 46,02,375/- as per the terms of the agreement for sale and the Respondent made the payment of INR 48,19,755/- towards the total sale consideration thereby clearing all the demands raised but the Promoter, while making the offer of possession raised an illegal demand of INR 1,93,015/- giving no proper justification. On getting no response from the Allottee’s side, the Promoter further raised another demand letter of INR 1,91,268/- claiming it to be the pending amount towards total sale consideration without giving any detailed clarification or justification.

An important fact to be noted here is that the basic sale price (“BSP”) of the Unit kept on changing in all these demand letters providing no information or taking consent about the same. Initially, the Promoter promised to sell the unit to the Allottee for Rs. 35,78,500/- Thereafter, he further increased the BSP to an amount of Rs. 35,81,900/- and then again from Rs. 35,81,900/- to Rs. 36,86,715.24/- i.e., he unilaterally increased the BSP from INR 35,78,500/- to 36,86,715/- (with a difference amounting to INR  1,08,215.24/-) which was contested by the Allottee in the reply to the complaint filed by the builder.

Issues:

The question before the Authority was to decide whether the demand raised by the Promoter of INR 1,91,268/- is justified or not and whether there is any delay in delivery of possession and if so, to provide compensation to the Allottee for such delay.

Determination

The Panchkula Bench of the Haryana Real Estate Regulatory Authority while deciding the issue, observed and determined that the total sale consideration as per the agreement for sale was INR 46,02,375/- and the demand raised of INR 1,91,268/- was nowhere mentioned in the agreement for sale nor any further justification of this demand was provided by the Promoter. Hence, this demand raised was considered to be illegal and unjustified and had no legal binding on the Allottee. The Order of this Hon. Authority makes it clear that the Allottee is only bound to pay the demands as per the terms and provisions of the agreement for sale and anything demanded arbitrarily from the Promoter should be opposed and denied by the Allottee as there is no legal binding on the Allottee to fulfil any such illegal demands of the Promoter.

Here, the Hon. Authority also provides a remedy to the Allottee by directing the Promoter to pay the delay interest for the delay of 1.5 years occurred in the delivery of possession of the Unit to the Allottee.  A peculiar aspect to this pronouncement is that though in this case, the due date of possession was a Pre-RERA date, and the offer of possession was also made prior to the enforcement of the RERA Act, regardless of the same, the Promoter was directed to pay the interest for delay in delivery of possession to the Allottee.

Another rather pertinent aspect to take from this case is that the Hon. Authority, in this case, has accepted the counter-claim made by the Respondent (Allottee) against the Complainant (Promoter) and provided the relief accordingly to the Respondent based on his counter-claim. This aspect of the said judgment needs to be particularly celebrated as paving way for the acceptability of counter-claims in RERA.

The break down of the doctrine of Res-Judicata

The meaning of Res is Subject Matter, and the meaning of judicata is adjudged together meaning “a matter adjudged”. In easier words, the thing has been concluded by the court. If the matter has already been settled by a court between the same parties, the same subject matter cannot be tried by another court. Hence, the court will put away or dismiss the lawsuit as another court has concluded it. The Doctrine of Res Judicata applies to both criminal and civil legal systems. There is no lawsuit directly or indirectly tried in a previous suit that can be tried once more.

• ‘X’ sued ‘Y’ as he didn’t pay rent. ‘Y’ requested the reducing the amount of rent on the foundation as the amount of the land was less than mentioned on the lease documents. The Courts concluded that the land was greater than shown in the lease. The land was excess and the doctrines of Res Judicata will not be applied.

• In a lawsuit, ‘X’, the civil suit was filed in which the respondents requested that the Court put away or dismiss the civil suit with an appeal of Res Judicata. The Court declared that the doctrine of Res Judicata must be proved with the help of evidence. Due to Res Judicata, her claim was barred.

Pre-requisites for Res Judicata:

• A judicial decision by an experienced court or tribunal,

• Final and binding and

• Any decision made on the merits

•  A fair hearing

• Previous decision correct or incorrect is not pertinent. 

Res Judicataconsists of two principlesof claim preclusion and matter preclusion. Matter preclusion is also known as collateral estoppel. The litigants of the case do not have the right to sue each other one more time after the final judgment on the ground of merits. For example, if a plaintiff loses a lawsuit against the respondent in the lawsuit say A, he cannot sue the respondent again in lawsuit B based on the same facts and events. I should not exist in a different court with the same facts and events in a different court. Whereas in matter preclusion, it prohibits the re-litigation of matters of law that the judge has already determined as part of an earlier lawsuit.

The scope has been concluded in the lawsuit of Gulam Abbas v. State of Uttar Pradesh. In this lawsuit, the court incorporated the rules as evidence to appeal a matter already tried in an earlier lawsuit. Judgment of this lawsuit was difficult as the judges should apply Res Judicata. It was concluded that Res Judicata is not exhaustive and even if the matter is not directly covered under the provisions of the section, it will be considered a lawsuit of Res Judicata on general doctrines.  

The doctrine of Res Judicata seeks to encourage the fair administration of justice and honesty and to prevent the law from being abused. The doctrine of Res Judicata is applicable when a litigant attempts to file a subsequent civil lawsuit on the same subject matter after receiving a judgment in a previous lawsuit wherein the parties are same and the subject matter as well. In many jurisdictions, this applies not only to the specific claims made in the first lawsuit but also to claims that could have been made during the same lawsuit.

Section 11 of the Code of Civil Procedure Codeincorporates the doctrine of Res Judicata also called the “rule of conclusiveness of judgment”. The doctrine of Res Judicata was laid down as a principle in India in the lawsuit of Satyadhyan Ghosal v. Deorjin Debi. Judge Das Gupta, J. gave the judgment of the court And it was appealed by the landlords who attained a decree for ejectment against the tenants who were Deorajin Debi and her minor son. Still, they cannot get the possession in implementation soon after the judgment was made. Under Section 28 of the Calcutta Thika Tenancy, a petition was made by the tenant and alleged that they were the Thika tenants. This petition was resisted by the landlords saying they were not Thika Tenants within the meaning of the Act.

The people who were tenants moved to the High Court of Calcutta under the Civil Procedure Code. The court applied the doctrine of Res Judicata to achieve finality in litigation. The outcome came that the original court, as well as the higher court, can proceed with any future litigation on the basis that the previous decision was correct.

The doctrine of Res Judicata says –

• No case should be tried twice for the same reason.

• State has the power to decide there should be an end to a litigation

• The decision of the court must be accepted as the correct decision.

International

Lowe v. Haggerty

In the case of Lowe v. Haggerty, an important question was raised considering the effect of the former judgment on the respondent when the guest sued him. It was held that a suit was barred.   There has not been the former record that disclosed what was in the first proceeding. It was decided by the courtthat it was not possible to determine what was the matter involved in the previous suit. The court disposed of the record made by the parties in a similar situation. Nonsuit was not granted in this lawsuit and the plaintiff’s appeal was refused.

India

Daryao v. State of Uttar Pradesh-

In the historic lawsuit of Daryao v. State of Uttar Pradesh, the doctrine of Res Judicata of the universal petition was established. The Apex Court of India i.e.; the Supreme court placed the doctrine of Res Judicata on a broader foundation. In this lawsuit, petitioners filed a writ petition in the High Court of Allahabad under Article 226 of the Constitution. But the suit was put away or dismissed. Then both had independent petitions in the Supreme Court under the writ jurisdiction of Article 32 of the Constitution. The respondents objected to the petition by asserting that the prior decision of the High Court would be operated as Res Judicata to a petition under Article 32. The Supreme Court put away or dismissed and disagreed with the petitions.

It was the decision of the court that the Doctrine of Res Judicata applies to a petition under Article 32 of the Constitution. If the petitioner files a petition in the High Court under Article 226 of the Constitution and it is put away or dismissed on the basis of the worth, it would be operated as Res Judicata to bar a similar petition in the Supreme Court under Article 32 of the Constitution.

Devilal Modi vs. Sales Tax Officer-

In the leading lawsuit of Devilal Modi vs. Sales Tax Officer, the respondent challenged the validity of an order of assessment under Article 226. The petition was put away or dismissed based on merits. The Supreme Court also rejected the appeal against the order based on merits. The respondent again filed another writ petition in the same High Court against the same assessment order. This time the petition was put away or dismissed by the High Court. The Apex Court of India i.e., Supreme Court held that the doctrine of Res Judicata barred the petition.

The Doctrine of Res Judicata can be perceived as forbidding parties to shift the time back during the unresolved proceedings. This principle can be implemented in the exterior of the Code of Civil Procedure and covers many areas related to society and people. The ceiling of Res Judicata is vast and involves many things, including Public Interest Litigation. The reach has widened with the transit of time, and the Supreme Court has broadened the areas with its judgments.

*****

How is 'BLACK MAGIC' governed in India

Black magic has been practised in India for a long time and is a social evil in our country supported by people's religious beliefs. There are several examples where in the context of healing the sick person, the person is thrashed for days, exorcisms are performed, or the person is thrown down the well. Recent cases of murder committed in the name of superstition expose the perverse side of India's modern civilisation. Although education is essential in ending such activities, there is also a legal obligation to address the pervasive usage of black magic. Since some believe these customs and rituals carried out in the name of God may be considered a manifestation of religion, there is a narrow line between faith and superstition that needs to be specified in legislation. The Anti-Superstition Bill of India has this concept but has not yet become an act. There is no legislation in India applicable nationwide, even after multiple bizarre incidents, one of which is the Burari case in the national capital of Delhi itself. There are a few state legislations that criminalise the practice of Black Magic and punish people for practising it, Maharashtra and Karnataka being two states.

Black magic crimes and other superstitious offences violate the fundamental rights guaranteed by Articles 14, 15, and 21 of the Indian Constitution. These acts also constitute violations of several international treaties, among them the "Universal Declaration of Human Rights," the "International Covenant on Civil and Political Rights," and the "Convention on the Elimination of All Forms of Discrimination Against Women," all of which India is a signatory. When we talk about what black magic exactly means, there is no established definition of what black magic is due to a lack of nationalised legislation for the same. However, the reality on the ground continues to be considerably different even though the constitution and international law guarantee fundamental rights. The Indian Penal Code's flaws are mostly to blame for this. Some Indian states have recognised the need for specific anti-black magic laws since 1999 in light of this situation. However, very few have done so, and those that have, fall short in execution. However, there have been multiple bills that have attempted to define black magic. The first iteration of the anti-superstition bill was introduced in 2003, marking the beginning of the bill's history. The bill from 2003 was known as the JaduTonaAndhshradha Virodhi. The bill's proposal was the first time law of this kind had been introduced anywhere in the nation. The definition of superstition was deemed excessively broad by most parties, who fiercely opposed the law. What would have been belief and faith to one person may have been superstition and blind faith to another. Despite these disagreements, the law eventually passed with certain modifications. Problems developed as the elections got underway, despite the bill waiting for approval from the federal government for nearly seven months. According to the President, enacting new legislation would not be proper because the administration would soon change. As a result, the bill did not become law as fate would have it. However, that was not the end of the adventure. Two years later, in March 2005, a new draft was submitted, almost identical to the one proposed in 2003, with a few minor adjustments. On December 16, 2005, an adjusted version was ultimately approved. The March bill included a relatively broad description of "Black Magic" or "blind faith". Treating, curing, or healing physical and mental problems while causing material or financial damage to a person includes practising by oneself or via another while claiming to have supernatural powers, divine powers, or the power of the spirit. Thus, this description would have included additional diverse practices like Voodoo, Wicca, and Reiki. However, the current bill has entirely deleted this because it doesn't appear to cover the practices of other religions like Islam and Christianity. The current bill has been dubbed as being anti-Hindu. Certain states have taken the step further to convert such bills into laws.

The Maharashtra state government passed the much publicised Anti-superstition bill, The Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013. The law aims to make it illegal to engage in black magic, sacrifices of human beings, the use of magic to treat illnesses, and other practices that prey on people's superstitions. The Act aims to reduce superstitions resulting in monetary loss and physical harm. If found guilty, the criminal faces a sentence between six months and seven years in prison and a fine between Rs. 5,000 and Rs. 50,000. All of these offences are non-bailable. Suppose the accused has been found guilty under the law. In that case, the competent court must order the police to publish the location of the offence and other pertinent information about it in the local newspaper.

The state of Karnataka, following in Maharashtra's footsteps, asked law students of the National Law School in Bangalore. The students drafted the Karnataka Prevention of Superstitious Practices Bill, 2013. The anti-superstition Bill is the name given to this legislation. It is anticipated that it will stop a variety of cruel customs, including witchcraft, black magic, and acts committed in the name of a religion that endangers both people and animals. It includes clauses to deal harshly with terrible activities, including human sacrifice, flaunting naked women and sexual exploitation through the use of supernatural forces. Recently Karnataka Cabinet cleared the Prevention and Eradication of Inhuman Evil Practices and Black Magic Bill, 2017.

In other territories of India, where there is no special legislation to deal with the practice of black magic, any person can still lodge an FIR under Section 154 of CrPC to report activities related to black magic for the police to investigate. According to section 508 of IPC, whoever voluntarily causes or attempts to induce any person to do anything which that person is not legally bound to do or to omit to do anything which he is legally entitled to do by inducing or attempting to induce that person to believe that he or any person in whom he is interested will become or will be rendered by some act of the offender an object of Divine displeasure if he does not do the thing which it is the object of the offender to cause him to do, or if he does the thing which it is the object of the offender to force him to omit, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Even though there is no exact provision to deal with the issue of black magic, this is the closest law has gotten to trying to resolve the problem. This provision provides for any act done in fear of divine wrath, and if any person has induced such act, then such person shall be punishable for an offence under this section. Furthermore, even if action can't be taken against a person for the very act of black magic, the aftermath of the same can constitute an offence, for which a person can be punished under the Indian Penal Code, for instance, if an individual is abetted in making a killing, the same can constitute as murder and abetment to murder, here all that is required is that satisfaction of all the essentials to prove the crime. Anyone convicted for a human sacrifice that is murder will be punished under Section 302 of the IPC, Section 307 (attempt to murder), or Section 308 (abetment to suicide). The punishment for murder is death or imprisonment for life,liable to pay afine.

Similarly, a person who fraudulently makes another person believe something untrue can be held liable for fraud. It must be understood that even if there is no legislation to deal with the same, one can take action against a person under IPC while understanding the offence in its capacity.

1. Sushil Murmu v. State of Jharkhan (2003)

Learned counsel for the respondent-State submitted that a 9-year-old child was sacrificed most brutally and diabolically. This case falls within the "rarest of rare" category; therefore, the death sentence has been rightly awarded. The court ruled that "Superstition can not justify any killing, much less a planned and deliberate one. No amount of superstitious colour can wash away the sin and offence of an unprovoked killing, more so in the case of an innocent and defenceless child."

2.      Ishwari Lal Yadav v State of Chhattisgarh (2019)

In October 2019, a three-judge bench of the Supreme Court in Ishwari Lal Yadav v State of Chhattisgarh (2019) confirmed death sentences for the married couple Kiran Bai and Ishwari Yadav in a case involving the human sacrifice of a two-year-old.2 Relying on the guidelines laid down in Sushil Murmu v State of Jharkhand (2004) (another case on human sacrifice), it held that the present case was "the rarest of the rare," meriting the death sentence, as had been rightly held by the courts below. In the Ishwari Lal Yadav case, the Court completely disregarded the cultural context of human sacrifice and its implications on questions of culpability in criminal law. It is argued that the Court's approach is contrary to the principle of individualised sentencing and ignores evidence on the complex anthropological and psychological dimensions of human sacrifice.

Tackling superstition through legislation is only half the battle. There is a need to educate the masses using mass media, street plays, and social media campaigns. Our conventional education system also must be equipped to tackle the scourge of superstition. Legislators are making a valiant attempt to stop crimes done under the pretext of black magic, promising innocent people things that are unrealistic and untrue. India needs superstition law, but there needs to be a discussion on what should be included. The force of law cannot dispel any superstition. A mental shift is required for it. However, laws targeting superstitious practices that are dehumanising, cruel, and exploitative must be dealt with and looked after.

Different Identities of an NDA

NDA stands for Non-Disclosure Agreement whichis utilised to safely share personal data and information which is confidential such as trade secrets and inventions that are unpatented, with another party. It is also called confidentiality non-disclosure agreements, confidentiality agreements, or proprietary data and information agreements.This kind of agreements allows courts to provide relief for unauthorised data and information which is confidentialin nature.

There are three types of Non-Disclosure Agreements:

1.Unilateral

2.Bilateral

3.Multilateral

Unilateral Non-Disclosure Agreements, also known as one-wayNon-Disclosure Agreements, only require one party to disclose confidential data and information to the other party. They are the most basic type of Non-Disclosure Agreement.

Here are the most basic types of unilateral Non-Disclosure Agreements:

A) Employer-Employee Non-Disclosure Agreements- Employers often require employees to sign these non-disclosure agreements once they are hired. These agreements limit the employees from divulgingimportant company data and information, such as:

• Trade secrets
• Business and development plans
• Pricing data
• Supply sources
• Operation plans
• Merchandising systems
• Technical data and information such as projections and inventions

B) Company-Recruiter Non-Disclosure Agreements- Companies can use these non-disclosure agreements to limit recruiters from sharing confidential company data and information. Like employer-employee non-disclosure agreements, company-recruiternon-disclosure agreements restrict recruiters from sharing critical business data and information that could reduce the company's competitiveness.Companies will add a detailed provision to avoid conflict of opportunities clauses and non-competition clauses to this non-disclosure agreement to limit recruiters from using the knowledge they’ve gained while working at the company. Recruiters are independent workers who have more flexibility and autonomy than employees. Companies will impose more limitations on recruiters to prevent them from using and sharing data and information that could affect competition.

C) Inventor-Evaluator Non-Disclosure Agreements- Inventors can use unilateral non-disclosure agreements to protect their inventions from being patented, used, or marketed by the evaluator. These non-disclosure agreements also limit evaluators from using and disclosing the inventors:

• Business operations, including the inventor’s financial data and information, vendor data and information, internal cost data and information, external business contacts, and the methods and manners of conducting business
• Customer data and information, including the names of the customers, their contact data and information, and the data they provided
• Any intellectual property
• Service data and information, including all data related to the inventor’s products and services
• Accounting data and information, including all balance sheets, company liability data and information, expense reporting, and profit and loss reporting

D) Seller-Buyer Non-Disclosure Agreements- Sellers can use non-disclosure agreements to limit the buyer from sharing confidential data and information that the buyers were exposed to during the sale of goods or services. They usually control the buyers from sharing the following:

• Business operations, such as the seller’s financial and internal data and information
• Any intellectual property
• Processesabout production, including the processes used in the creation, manufacturing, and production of the seller’s products and services
• Computer technology, including all technical and scientific data and information about any process or machine used by the seller

Also known as mutual non-disclosure agreements or two-way non-disclosure agreements, bilateral non-disclosure agreements require both parties to disclose their data and information, which is confidential to each other. Both parties can limit other parties' use and share their data and information.Bilateral non-disclosure agreements are used in situations where parties are required to exchange a lot of personal business data and information during negotiations. It includes all kinds of takeovers in the corporate world, joint ventures, and mergers and acquisitions.

Multilateral non-disclosure agreements or multiparty non-disclosure agreements involve three or more parties where at least one of them will disclose data and information to the other parties. These agreements eliminate the need for separate bilateral or unilateral non-disclosure agreements between two parties. For example, you can enter into a single multilateral non-disclosure agreement with parties A, B, and C instead of entering into three separate bilateral non-disclosure agreements between A and B, B and C, and A and C.Multilateral non-disclosure agreements are often found in complex, negotiation-heavy deals. A typical example of this type of non-disclosure agreement is a multiparty confidentiality agreement. Three or more companies can use this agreement to ensure that each party is only disclosing confidential data and information so that each party can determine whether it is engrossed in entering into further agreements.

·         Non-disclosure agreements are an important legal framework used to protect confidential data and information from being made available by the recipient.

·         Companies and start-ups use these documents to ensure that their good ideas won’t be stolen by the people they are negotiating.

·         Anybody in breach of a Non-Disclosure Agreement will be subject to lawsuits and penalties commensurate with the value of lost profits. Criminal charges may even be filed. Non-Disclosure Agreements may be unilateral, whereby only the recipient of the data and information is required to keep silent, or mutual, where both parties agree not to share each other’s sensitive data and information.

·          Whenever a business entity is engaged in an essential commercial discussion, it is always important to ensure a Non-Disclosure Agreement is signed between the parties,instilling confidence and trust, which can assist in open negotiations.

·         As stated above, signing a Non-Disclosure Agreement grants more trust between the parties signing the agreement and ensures that despite heavy negotiations, agreementsor disagreements, the data and information are always protected. It deters the theft, misuse, and misrepresentation of intellectual property.

·          A non-Disclosure Agreement is signed at the beginning of the negotiations between business entities, even when it is still uncertain whether the parties will agree to come together to enter into a business agreement.

·         In such circumstances, data and information is shared between parties to evaluate and analyse the market and make predictions about future projects.

·         A non-Disclosure Agreement is also essential to protect data and information from being misused or shared with a third party by an intern or an employee of a business entity.

·         The primary intent behind the signing of a Non-Disclosure Agreement is to protect data and information sharing; therefore, it ensures that the privacy and confidentiality of data and information sharing are safe as it reduces the scope of breach of any disclosures, which will give the aggrieved party a resort of suing the other party. Since Non-Disclosure Agreement is a legal document, it is of immense importance for avoiding and resolving any conflict that might arise in the future. In some cases, the party infringing the agreement would be legally liable to compensate for damages.

·          It clearly states (in written format) that anything that comes under the bracket of ‘confidential’ in the long run avoids ambiguity or loss of data and information. Overall, a Non-Disclosure Agreement protects intellectual property disclosures (including trade secrets, proprietary data and information, and other confidential data and information), safeguarding a business entity.

The Confidential Information Clause in the Non-Disclosure Agreement clearly defines the ‘confidential matter’ for which the Non-Disclosure Agreement is entered between the parties.It helps maintain secrecy between the parties by binding them legally through different clauses constituted under the non-Disclosure agreement. This forbids the receiving party from disclosing confidential information.Different clauses of the Non-Disclosure Agreement also draw the timeline up to which the party is obliged to maintain secrecy. This period could be beyond the effective period of the agreement itself.Any kind of Non-Disclosure Agreement is legally binding. Thus the party infringing the agreement would be liable to compensate for the damages to the aggrieved party.

In a land mark judgement, the apex court of the country, Supreme Court of India, has termed  PD (Preventive Detention ) Act as an extraordinary Act and said that the Act can’t be used against the citizens of the country in violation of their fundamental right of personal liberty under normal circumstances. A vacation bench of Justice CT Ravi Kumar and Justice Sudanshu Dhulia made these important observations while dealing with a case involving the invocation of the PD Act against two accused of chain snatching by Rachakonda police of Hyderabad. The police invoked the Act against the two accused in October last year . In their orders, the police said that most of the victims of the accused were women and added that the invocation of the PD Act would act as a deterrent to the accused and prevent them from committing such crimes in future. Arguing the case on behalf of the accused before the vacation bench,  Telangana High Court Advocate D. Sudarshan said that although the accused had 38 pending cases against them, the case related to chain snatching incidents were only four. He also told the SC that the accused got bail in all the four chain snatching cases from magistrate courts from Hyderabad between May 6,2022 to July 26,2022.   Agreeing with the arguments of the counsel for the accused , the vacation bench allowed the petitions of the accused urging it to set aside the orders passed by the Telangana High Court and quash the orders of the Rachakonda  police invoking the PD Act against the two accused. The wives of the two accused approached the SC following dismissal of their Habeas corpus petitions by the Telangana High Court on March 25 this year. The wives of the two accused urged the Telangana High Court to quash the orders of the police sending their husbands to jail under the PD Act and set them free. Speaking on the occasion, the counsel for the wives of the accused D. Sudarshan expressed his happiness at the verdict of the Supreme Court. He said that the police had violated the fundamental right of personal freedom privacy of the accused and added that the police should have invoked the PD Act after the cancellation of the existing bail of the accused, which had already  been granted by the magistrate court in the four cases. He said that the police had not mentioned the names of the accused in the four chain snatching cases cited by them before the Telangana High Court to support their decision for invoking the PD Act .

Eligibility to become  Public Prosecutor in India

Public Prosecutors are the advocates of Government and are in charge of the appeal, trial, and all other court processes. Primarily, conducting a pre-trial investigation in a civil or criminal case, supervising the implementation of penalties, defending the rights and interests of persons and the State by following the measures established by law, and submitting claims and applications to courts in cases as needed by law will be included in your responsibility as a public prosecutor.

A Public Prosecutor should have throughout knowledge of all the laws of India. He should be an expert in studying the cases thoroughly. He should be trained in arranging for the witnesses and the pieces of evidence for any case. He should know all the types of legal notices that can be issued, which may be for and against a government organisation and of course, he should have the skill to advise the Government on different cases. To become a public prosecutor, qualities like persistence, persuasion, focus, hardworking are a must, and they should have good communication skills. In India, the salary for the job of a Public Prosecutor varies according to the jurisdiction in which they are working. These employees working under the Government are qualified to receive income as prescribed by the Government and also receive allowances and incentives. Public prosecutors are sometimes paid a fixed salary without any allowance or perks. Public Prosecutors working in the C.B.I (Central Bureau of Investigation) are paid a fixed salary without any allowances or perks.

Candidates interested in becoming a public prosecutor and making it a full-time career must be law graduates approved to practice in the law field in the given jurisdiction. In many cases, the requirements of experience in this post should be there, and they must go under investigation in a criminal background. From jurisdiction to jurisdiction, the requirements are specific and are different in every jurisdiction, so you should investigate it carefully when they wish to work in those of the jurisdiction. A Public Prosecutor or Assistant Public Prosecutor who is being appointed must have at least seven years of experience as an advocate for the motive of the appointment of a Public Prosecutor or Additional Public Prosecutor. The candidates must have at least ten years of experience as an advocate for being appointed as a Special Public Prosecutor. When the district magistrate is consulting the Sessions Judge, the session judge has to prepare a board of persons qualified to be appointed as the Public Prosecutor at the district level. A Public Prosecutor is appointed by the State Government for the district when a panel of names mentions their names prepared by the District Magistrate under sub-section (3). Among the Asst. Public Prosecutors a Public Prosecutor can benefit by interacting with the Public Prosecutors appointed from the Bar by the Sessions Judge's consultation and vice-versa. The Criminal Procedure Code doesn't explain the extension or renewal of the term of a public prosecutor. The Government has already decided and fixed the term of a Public Prosecutor. The State and the Central Government may appoint a Special Public Prosecutor who has been an advocate for at least ten years for any case or class of cases.

Candidates who aspire to become public prosecutors must appear for the Union Public Service Commission exam (UPSC). There is an interview after the written test. The candidates who will get selected will be informed through email. A candidate must have practised as an Advocate for a minimum of seven years. A Public Prosecutor is also known as a P.P. An advocate who denotes the people of the State or the State in a trial of a criminal case is called a Public Prosecutor. India's current criminal justice system is based on the fact that any crime that any person or group commits against others is considered to have been committed against society. The reproach for any crime and the prosecution is not the victim of the State; instead, it is the responsibility of the State. Any prosecution on behalf of the State is always conducted by the Public Prosecutor. The Prosecutor who works for the public has to play his role critically in maintaining impartiality and purity in the area of criminal justice administration. Prosecutors have been associated either with the adversarial system of common law or the inquisitorial system of civil law. Prosecution means the legal parties who are responsible for presenting the case against any individual, and the individual who's against the case has been presented is called the defendant.Candidate's age must be between 35 years and 45 years of age at the time of applying (The maximum age limit of the candidates belonging to the Scheduled Tribes, Scheduled castes, and Other Backward Classes shall be may be decided from time to time by the Government from)

To become an Assistant Public Prosecutor, Under Section 25 of the Criminal Procedure Code, An Assistant public prosecutor is appointed in all districts to conduct prosecution in the magistrate courts. Candidates who are Law graduates and have experience of a minimum of two years at any bar council at the state level and are not more than 35 years of age can apply for the public prosecutor position. The written and viva examinations are conducted by the respective State Public Service Commission departmentto fulfil the selection criteria. The written examination will include questions from procedural law, general English, criminal law, and some other miscellaneous laws. Direct appointment of Assistant public prosecutors shall remain for two years of the probation period, and those otherwise enlisted will remain for one year as ordered by the competent authority.

In India, there are great opportunities for prosecutors. Positions at entry-level are also available for the new attorneys who have offered their services or gained experience through working as an intern while being in law school. Experience in trial priorly is usually required. Prosecutors who already have state-level experience may desire to move into working as a prosecution at the supreme court. Options like working in a private law firm, working in a corporation, or working as a judge are the other possible career opportunities. The Job of a Public Prosecutor needs a great amount of responsibility. A Public prosecutor is appointed under Section 24 of the Criminal Procedure Code, which comprises any person acting under the commands of a Public Prosecutor.

Assistant Public Prosecuter Syllabus 2022, Exam Pattern, Exam Date 2022

Detail Information about KEA (Karnataka Examination Authority) has published notification 2022 for the recruitment of Assistant Public Prosecutor vacancies. Those Candidates who are Interested to the following vacancy and completed all Eligibility Criteria can read the Notification & Apply Online. In this page we provide the Complete Syllabus of this Recruitment with Latest Update Exam Pattern and the Exam Date also.

KEA Assistant Public Prosecutor Syllabus 2022 - Overview
 

KEA Assistant Public Prosecutor Syllabus 2022

Reasoning & Mental Ability

1. Mirror Images 2. Grouping Identical Figures
3. Figure Matrix Questions 4. Problem on Age Calculation
5. Decision Making 6. Inference 7. Analogy
8. NonVerbal Series 9. Test of Direction Sense
10. Number Series 11. Alphabet Series 12. Arguments
13. Ven Diagram 14. Blood Relations
15. Coding and Decoding  15. Number Ranking
16. Arithmetical Reasoning

Civil Laws & Acts

1. Code of civil procedure 1908   2. Cyber Law
3. Transfer of Property Act,1882   4. Indian Contract Act,1872
5. Specific Relief Act,1963    6. Indian Constitution
7. Limitation Act     8. Code of Criminal Procedure-1973
9. Indian Penal Code-1860 10. Indian Evidence Act,1872

Law Paper-I

1. Framing of issues  2. Framing of charges
3. Principles of Pleading  4. Drafting of pleadings

Law Paper-II

1. Code of Criminal procedure -1973  2. Indian Evidence Act,1872
3. Indian Penal Code-1860

Law Paper-III

1. Constitution of India   2. Cyber laws
3. Code of Civil Procedure-1908 

KEA Assistant Public Prosecutor Exam Pattern 2022

Prelims Exam
 

Main Exam
 

Exam Date : Update Soon

Starting Date of Application Form : 10th October 2022

Last Date of Application Form : 08th November 2022

Total Post : 124

Source :

Karnataka Education Authority (KEA)

http://kea.kar.nic.in/

The idea of a prosecutor working for the public is one of the most important components of the justice system for criminal cases, and most countries follow it. A Public Prosecutor must be impartial, honest, and follow all the law provisions in India. The main objective at the back of all this work is to accomplish the ends of justice fairly and quickly.

*****

In India, becoming a young judge is considered a prestigious and significant achievement. To become a judge in this country, you must have a certainlevel of discipline and commitment. The Indian judicial system is designed in such a waythat there areseveral courts at various levels in every district of a given state, each with different mandates. Specialized courts exist for certain special purposes or statutes. The district and sessions courts are the highest courts in a district. Each state has its own process for selecting judges, which includes examinations and interviews. There is a lot of similarity in how different states choose their judges, but there are many distinctive aspects. It also appears that the criteriafor becoming a judge have been established to give some advantage to the local candidates. Every year, over 70,000 people apply for the Judicial Services Examination, although only 1% to 2% end up clearing the examinations successfully. Preliminary and major exams are required in all states, followed by an interview process. The entire procedure can take up to a year or more, from writing the preliminary exam to the interview phase and the announcementof the final selected applicants. For people who are interested in serving the public in a high-status position, judicial service is a viable alternative. It provides a secure and safe job opportunity with a competitive wage package.

There are two entry levelsof judicial service examinations: The lower judiciary service and the higher judiciary service.

The Lower judiciary services essentially compriseof three cadres of judges: District Judges, Senior Civil Judges & Civil Judges who are at the Junior Division. These judges have both civil as well as criminal jurisdiction. These exams are administered by public service commissions or the respective state's High Courts. They distribute advertisements and notices.

Higher Judicial Services or HJS is open for lawyerswho have some experienceunder their belt. This is usually a seven-year experience. Typically, the syllabus for these tests is the same. The additional benefit of competing and passing the higher judiciary tests is that the candidate is postedas an additional district judge, which places them above the lowerjudicial service officials. It also allows for promotion to the High Courts of respective states. The Judicial Services Examination, also known as the PCS (J)-Provincial Civil Service-Judicial Examination, is required to become a judge in the Indian Judicial Services. The PCS-J test is for law graduates who want to work as members of the subordinate judiciary. This exam is the only way for new law school graduates to become a Subordinate Court Judge. Preliminary Examination, Main Examination, and Viva-Voce/Interview are the three stages of the Judicial Service Examination.

The preliminary exam is used to screen candidates for the main exam. It consists of multiple-choice questions. For the final selection, the marks obtained in the preliminary examination are not taken into account.Theminimum qualifying marks in the preliminary examination is 60 per cent for general and 55 per cent for reserved categories.State by state, the percentages of qualifying marks differ. The mainexam is a subjective form of test,three to four papers make up the exam,and candidates' scores are used to determine the final selection. Candidates equal to three times the number of vacanciesare called for viva-voce. Candidates are evaluated on general interest, personality, and IQ, among other things, at this stage of the Viva-Voce/Personal Interviewstage. The syllabus varies across states. It is dividedinto three sections: civil law, criminal law, and a language paper.

A degree in LL.B. and enrolment or qualification to be enrolled as an Advocate under section 24 of the Advocates' Act 1961 are the requirements for appearing in the Judicial Services Examination.

For fresh law graduates the minimum requirements to become a judge or apply for the examination, are distinct from others. The minimum age requirement for a fresh law graduate is not less than 21 years and not above 35 years of age. An applicant must have an LL.B degree with all examinations cleared.

For any person who’s already a practising Advocate, Attorney or Pleader, the minimum age requirement is not below 21 years and not above 35 years of age, similar to that of the fresh law graduates, and that similarly applies to the academic qualifications as well. However, the requirements are different when one wants to practise in the High Courts and the Supreme Court.

A.    Direct Recruitment:- (a) Must be holder of a degree in Law granted by a University established by Law in India and must have been enrolled as an Advocate. (b) Must not have completed as on the last date fixed for receipt of applications, Thirty Eight years of age in the case of candidates belonging to Scheduled Caste or Scheduled Tribe and Thirty Five years of age in the case of others.

B.     Scale of Pay :- Rs. 27700-770-33090-920-40450-1080-44770

Apart from the basic salary, the Civil Judge is entitled to get many other allowances such as House Rent Allowance, Dearness Allowance, Travel Allowance, Partial Vehicle Allowance and Pension after Retirement.

C.     Method of Recruitment:- By direct recruitment on the basis of aggregate of marks obtained in a Competitive Examination (Main Written Examination and Viva-Voce) conducted by the High Court. (1) The Competitive Examination for recruitment of Civil Judges shall consist of 3 stages i.e., (a) Preliminary Examination (b) Main Written Examination and (c) Viva-Voce. The marks secured in the Preliminary Examination is considered only for Eligibility for the Main Written Examination. (a) PRELIMINARY EXAMINATION:- The Preliminary Examination shall be conducted by way of Objective Type Question Paper consisting of 100 marks and the syllabi for the said examination shall be the following, namely:- Part-A – Code of Civil Procedure, 1908; Negotiable Instruments Act, 1881; Transfer of Property Act, 1882; Indian Contract Act, 1872; Specific Relief Act, 1963; Indian Constitution; and Karnataka Rent Act, 1999. Part-B – Code of Criminal Procedure, 1973; Indian Penal code, 1860; and Indian Evidence Act, 1872. Part-C – General knowledge – Test of reasoning and mental ability. (b) MAIN WRITTEN EXAMINATION:- (i) Translation Paper (Maximum Marks 100) There will be one translation paper and the candidates will be required to translate passages in English into Kannada and Kannada into English. The Passages will be from (1) Depositions, (2) Judgments and (3) Documents. 12 (ii) Law Paper I (Maximum Marks 100) The Code of Civil Procedure, 1908; The Code of Criminal Procedure, 1973; The Indian Evidence Act, 1872; Principles of Pleading and The Constitution of India. (iii) Law Paper II (Maximum Marks 100) Framing of Issues and writing of Judgments in Civil Cases. (iv) Law Paper III (Maximum Marks 100) Framing of Charges and writing of Judgments in Criminal cases. (c) VIVA-VOCE (Maximum Marks 100) The candidates General Knowledge, grasp of principles of law and suitability for appointment as Civil Judge shall be tested. (d) COMPUTER TEST (Maximum Marks 25) The test of knowledge of computers shall carry maximum 25 marks and such marks secured by the candidate shall be considered for ascertaining the suitability and computer knowledge of the candidates and shall not be aggregated to the total marks obtained in the Main Written Examination and Viva-Voce.

"Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such Judges of the Supreme Court and the High Courts in the States as the President may think necessary," is written in Article 124(2) of the Indian Constitution. The article further specifies that if a judge other than the Chief Justice of India is to be appointed, the Chief Justice of India must be consulted.

Furthermore, these credentials are required:

·         Indian citizenship; and

·         Has served as a judge in a High Court or two or more High Courts in succession for at least ten years; or

·         Has worked as an advocate for at least ten years in one or more High Courts in a row; or

·         From the perspective of India's President, he is a respected jurist.

"Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court," is explained in Article 217(1) of the Constitution of India.

These qualifications are also required, according to Article 217(2) —

·         Citizenship of India; and 

·         has served in the Indian judiciary for at least 10 years; or

·         has served as an advocate in one or more High Courts in succession for at least ten years.

This occupation needslegal knowledge and the ability to comprehend the law from numerous perspectives. A thorough understanding of all areas of law is required. The salary scales for judges differ depending on their position. The retirement age for a Supreme court judge is 65 years, whereas for a High Court judge the retirementage is 62 years. Finally, in India, becoming a judge is not a one-way street. While the profession has a lot of prestige, it also requires a lot of hard work, training, and years of dedication upfront. A person who aspires to be a judge must also contribute to the nation's development, advancement, and a positive attitude, as well as the ability to perform under duress.

*****

Grounds for refusal of a Trademark application

Intellectual property rights provide for the rights to the owners of intellectual properties to preserve their ownership and to sustain and receive the benefits of their creativity and genius. Trademark is one of the most prominent intellectual property rights. A trademark is a tool that helps a company distinguish itself from other brands to beat the competition. A brand is not necessarily a trademark, but a trademark is always a brand. A trademark is a name, word, or symbol that distinguishes goods from those of other businesses. Marketing goods or services by procedure becomes considerably easier with a trademark because product recognition is secured and made easy. The owner can prevent a competitor from using his mark or symbol.

An Indian Trademark Law was enforced in the 1940s. This law was enforced because of the continuous infringement of the registered and non-registered trademarks. As trade and commerce grew rapidly after the trademark legislation was implemented, demand for trademark protection skyrocketed. The Trademark and Merchandise Act, 1958 replaced the old Trademark law. It provided better protection of trademarks and prevented misuse or fraudulent use of marks on merchandise. This act as well was replaced with the Trademark Act, 1999, by the government of India following the TRIPS (Trade-related Aspectsof Intellectual Property Rights) obligation imposed by the World Trade Organization. The Trademark Act's goal is to protect trademark users by directing property conditions and providing legal remedies for trademark rights enforcement.

Trademark identifies the owner of the product. Trademark piracy is defined as the use of a trademark for commercial gain through unauthorised or illegal means. If a registered trademark is infringed, the owner of the registered trademark can file a case, whereas an unregistered trademark's only alternative is passing off. Anyone claiming to be the owner of a trademark or claiming to have to use it in the future may submit an application in writing to the competent registrar in an authorised manner. The application must include the name of the goods, mark, and services, the class of goods and services in which it falls, the applicant's name and address, and the mark's term of use. A person here refers to a group of firms, a partnership firm, a corporation, a trust, a state government, or the federal government.

Section 9 of the Act defines the absolute grounds for the refusal of registration of the trademark. Trademarks that are devoid of distinguishing qualities or consist solely of marks or signals that might be used in commerce to represent the kind, fine, quantity, alleged grounds, values, or geographical origin, may be rejected. Acreation of time of things or the rendering of offers, or various features of goods or offerings, consisting entirely of signs or signals that have become common in today's language. That trademark is not eligible for registration. Unless it is proven that the mark has acquired a new character as a result of use before the application date. It further provides that a mark shall not be registered as a trademark if:

1.      It deceives or confuses the people.

2.      There is something that can harm religious sensitivity.

3.      It is indecent or scandalous in nature

4.      Its use is forbidden. It states that a trademark cannot be registered if it only contains (a) the shape of products that form the nature of goods, (b) the shape of goods that are required to achieve a technical result, or (c) the shape of goods that gives substantial value to goods.

5.      It is prohibited under the Emblems and Names (Prevention of Improper Use) Act. 1950.

If two marks appear to be deceptively similar, the key qualities of both must be considered. They should not be placed side by side to see if there are any design discrepancies and if they have the same personality to avoid one design being mistaken for the other. It would be sufficient if the challenged mark is so similar to the registered mark that a person who normally deals with one would accept the other if presented to him. Apart from structural, visual, and phonetic similarity or dissimilarity, the question must also be considered in terms of human intelligence and incomplete collecting. The question of his impressions is viewed as an entire third.

"It is general knowledge that 'bidis' are utilised by those belonging to the impoverished and uneducated or semi-literate class," the court said in Mohd. Iqbal v. Mohd. Wasim. Their level of expertise is limited. It is unrealistic to expect children to comprehend and comprehend the subtle differences between the two labels that can be found by comparing the two labels. Given the foregoing, the two labels appear to have a misleading resemblance."

The Act's Section 11 lays forth the relative grounds for a trademark's refusal to be registered. A trademark cannot be registered if there is a likelihood of confusion due to (I) its identity with an earlier brand and resemblance of goods or services, or (II) its similarity to an earlier trademark and similarity of goods. It also states that a trademark that is identical or similar to an earlier brand cannot be registered. Also, if, or to the extent, the earlier trademark is well recognised in India, it must be registered for goods and services that are not identical to those for which an earlier trademark is registered in the name of a different proprietor. It further states that a trademark cannot be registered if or to the extent that its use in India is likely to be prohibited by law.

Intellectual property rights are a new yet booming field of law in today’s time. Trademark is one of the most essential intellectual property rights for a business. It is essential to build their brand, their brand value and their image in the market. People need to know the grounds on which a trademark can be refused. In order to make sure that such grounds for non-refusal are satisfied, which makes it faster for the business to set up and commence their business and function as an independent brand in the market.

*****